Commonwealth v. Steven Sommer, July 13, 2010
77 Mass. App. Ct. 907
Idle and Disorderly Person, Prior Violent Conduct, Self-Defense, Assault and Battery
The defendant was charged with assault and battery; threats to commit a crime; disorderly conduct, and assault and battery by means of a dangerous weapon. After a jury trial, he was convicted of assault and battery and disorderly conduct, and acquitted on the remaining charges. The defendant appealed, arguing that (1) although the disorderly conduct instruction given by the trial judge was consistent with the SJC's interpretation of the disorderly conduct in Alegata v. Commonwealth, 353 Mass. 287 (1967), the Alegata decision was erroneous and (2) the trial judge's refusal to give a “first aggressor” instruction was error. The Appeals Court found error in the second contention, but affirmed the judgment on reason of no substantial risk of a miscarriage of justice.
The charges stemmed from a fight between the defendant and his niece's boyfriend. Each contends that the other instigated the fight.
(1) SJC’s interpretation of disorderly conduct statute in Alegata
The Appeals Court has no authority to revise decisions of the Supreme Judicial Court; thus, the defendant's first contention regarding the Alegata interpretation of the disorderly conduct statute was not analyzed in this decision.
(2) “First aggressor” instruction and Adjutant
The defendant's second claim of error is that the trial judge refused to give a “first aggressor” instruction in accordance with Commonwealth v. Adjutant, 443 Mass. 649 (2005). Adjutant dealt with admission of evidence of prior aggressive behavior about which the defendant knew nothing. Id. at 657-658. The Appeals Court determined that both the judge and the prosecutor mistakenly understood Adjutant to apply only when a defendant had knowledge of the victim's earlier aggressive behavior.
The trial judge gave a self-defense instruction instead of a “first aggressor” instruction. The trial judge also permitted introduction of evidence of the victim's prior conviction for assault by means of a dangerous weapon in order to impeach the victim's credibility. No limiting instruction was given.
The Appeals Court held that though the trial judge misread Adjutant at trial, the defendant received everything Adjutant would have entitled him to anyway. The defendant was able to put before the jury without any limitation evidence of the victim's prior aggressive behavior.
The Appeals Court held that there was no substantial risk of a miscarriage of justice and affirmed the judgments.
- Prepared by AYK
