Appeals Court February 3, 2012
Procedural history: A District Court jury convicted the defendant of resisting arrest and acquitted him of three counts of assault and battery on a police officer. On appeal, defendant argues that the trial judge erred by not instructing the jury on self-defense, and that this error gave rise a substantial risk of miscarriage of justice.
Holding: Conviction reversed, remand for a new trial.
Facts:
On April 11, 2010, officers Burnham, Materazzao, and LaBonte responded to a potential domestic violence dispute at 6 Timberhill Lane in Lynnfield. Mrs. Eberl said she wanted the defendant, Mr. Eberle, out of the house but did not state that he had been violent. Officer Burnham then interviewed the defendant, while Officer Materazzao interviewed Mrs. Eberle, per standard procedure in domestic violence incidents. The officers each testified that the defendant resisted Burnham’s advance, the officers put the defendant against the wall, the three went to the ground, and then the officers handcuffed the defendant and escorted him outside. Officer Burnham testified that defendant pushed him twice in the chest after Officer Burnham made physical contact with the defendant to get him back inside the house. By contrast, Officer Materazzao testified that defendant shoved Officer Burnham before Officer Burnham had touched him and also punched Officer Burnham.
The defendant testified that Officer Burnham shoved him multiple times, threw him against the wall after the defendant told the officer to stop, and then threw the defendant the floor. The other officers eventually joined the fray and the defendant struggled against the officers, believing they were trying to pull his arm out of his socket and “kill him.” Defendant was subsequently transported to the hospital where his arm was put into a cast because of a dislocated elbow and he was given medication including two shots of morphine.
Standard of Review: Defense counsel orally requested the self-defense instruction, but did not submit proposed instructions to the court or the prosecutor. When the judge read the instructions at the end of the trial, he did not include a self-defense instruction but defense counsel did not renew his request or object to the instructions. Under that set of circumstances, defendant has not preserved the error, and review is for a substantial miscarriage of justice. Commonwealth v. King, 77 Mass. App. Ct 194, 197 (2010).
Issue: Did the trial judge err in not giving the self-defense instruction?
Yes. A defendant is entitled to a self-defense instruction “if any view of the evidence would support a reasonable doubt as to whether [, taking all reasonable inferences in his favor,] the prerequisites of self-defense were present.” Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004) (citations omitted). Here, the defendant testified that the officers shoved him, threw him against the wall, threw him to the floor without any provocation or indication that the defendant was violent. Further, defendant testified that he was on the ground, in excruciating pain, and felt like the officers were trying to rip his arm out of their sockets. On these facts, taken in light most favorable to the defendant, the trial judge erred in not giving the self-defense instruction.
“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[]’ the guilty verdict.” Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 425 (2003). Four factors are considered: (1) the strength of the Commonwealth’s case, (2) the nature of the error, (3) whether the error is sufficiently significant in trial to make plausible the inference that the jury’s result might have been otherwise but for the error, and (4) whether it can be inferred from the record that counsel’s failure to object was not a reasonable tactical decision. Id.
Here, the Commonwealth’s case was not overwhelming because of the officers’ conflicting testimony, which undercuts their credibility. Taking the second and third factors together, the error was significant and creates a plausible inference that the jury’s result might have been different without the error. The defendant also relied significantly on the self-defense during his testimony and it was essential line of defense against the resisting arrest charge, see Franchino, 61 Mass. App. Ct. at 376. Finally, since the defense counsel had initially raised the self-defense instruction himself, the record strongly suggests that his failure to object was not a tactical decision.
