December 10, 2015.
Suffolk. Indictments found and returned in the Superior Court
Department on February 1, 2011.
cases were tried before Patrick F. Brady, J.
Supreme Judicial Court granted an application for direct
Matthew V. Soares for the defendant.
Teo, Assistant District Attorney ( Jennifer J. Hickman,
Assistant District Attorney, with her) for the Commonwealth.
W. Swank, of the District of Columbia, & David A.F. Lewis
& Stephen D. Poss, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 429] Cordy, J.
March 21, 2012, a jury convicted the defendant,
James Allen, of murder in the second degree, and of
carrying a firearm without a license, possession of
ammunition without a firearms identification card, and
possession of a large capacity firearm feeding device without
a license. At trial, his defense was that he was
justified in using deadly force because he was coming to
defense of a friend (Shawn Buchanan) who was being threatened
with deadly force by the victim, Senai Williams.
defendant timely appealed from his convictions, and we
granted his application for direct appellate review. On
appeal, he [48 N.E.3d 430] raises several claims. First, he
argues that the trial judge's instruction to the jury on
defense of another was incorrect because it improperly
suggested that the defendant may have had a duty to retreat,
and because it negated the possibility of a finding of
so-called excessive force manslaughter by instructing that
the defendant was required to avail himself of available
alternatives before employing deadly force and that if the
Commonwealth proved that the defendant used excessive force
then it had proved that he did not act in lawful defense of
another. The defendant also claims error based on
misstatements by the prosecutor in closing argument; the
admission of irrelevant and prejudicial testimony;
insufficient evidence supporting the firearms convictions;
and constitutional violations in connection with the firearm
indictments. We conclude that portions of the jury
instructions concerning excessive force manslaughter were
erroneous and prejudicial. Accordingly, we reverse the
defendant's conviction of murder in the second degree and
remand the case for a new trial on that charge. We affirm the
defendant's remaining convictions.
summarize the evidence. On November 18, 2010, the defendant
shot and killed the victim. The shooting arose from a dispute
between two groups of neighbors and their associates residing
at 20 and 23 Homestead Street in the Roxbury section of
Boston. The 20 Homestead Street group included the victim;
his girl friend, Shaquice Herring; and her mother, brothers,
and cousins. The 23 Homestead Street group included the
defendant; his friend, Shawn " Lucky" Buchanan;
Buchanan's mother; his girl friend; and his half-brother,
events that culminated in the shooting began that afternoon,
when Stephens and some friends were looking for a place to
smoke marijuana. Because his mother was home, Stephens
decided to smoke in the hallway of 20 Homestead Street.
Herring's mother, who had received complaints from her
landlord about marijuana smoke in the hallway, told the
victim and two others in their group to go downstairs to tell
Stephens and his friends they could not smoke in the hallway.
Following a tense exchange of words, the victim grabbed
Stephens and forced him out the door.
Stephens crossed the street to return to his house, he saw
Herring in her window and called her a bitch. Angered, she
went outside to confront him. The victim eventually separated
the two, but not before Herring slapped and punched Stephens
in the face.
called his brother, Buchanan, about the incident. Buchanan,
accompanied by the defendant, went to Homestead Street. By
the time they arrived, night had fallen and the street lights
were on. When Buchanan got to Homestead, he beckoned to
Herring and the victim to come down to the street.
Eventually, Stephens joined the three, who were speaking
calmly with one another. The conversation became more heated
as they began to discuss the earlier incident with Stephens.
Someone asked if the victim had hit Stephens, and Herring
told Buchanan that she, and not the victim, had hit him. The
victim attempted to demonstrate the manner in which he had
made contact with Stephens in the hallway; Stephens, however,
was still upset and demanded that the [48 N.E.3d 431] victim
take his hands off of him. Likewise, Buchanan told the victim
he did not need to touch Stephens to explain. The defendant,
who was standing on the porch of 20 Homestead, said to
Buchanan, " Handle your business, Luck." At this
time, the victim moved to the side of Herring and then
reached over her, trying to punch Buchanan.
number of people had converged on their porches and sidewalk
to watch the escalating confrontation, including other
members of the two groups. A neighbor living at 21 Homestead
also watched the confrontation from her porch. The defendant
and others suggested that the victim and Buchanan have a
" fair one," a one-on-one fist fight.
the defendant stood on the front porch of 20 Homestead,
Buchanan and the victim began to fight. They repeatedly swung
at each other without making contact. At one point, the two
men were getting close to an automobile belonging to the
neighbor's father, which was parked on the street; at her
request, they moved
away from the vehicle. It appeared to the neighbor that
" they ... didn't really want to fight." Around
this time, the defendant came down the front steps of 20
Homestead into the street.
testimony about what happened next, in the moments prior to
the shooting, is in conflict. Herring testified that both
Buchanan and the victim pulled out knives, and that she made
the victim walk away from Buchanan at that point. She also
testified that the latch on the victim's knife was
broken, so that the blade would not stand up straight. Others
testified that Buchanan pulled out a knife and then the
victim pulled out a knife. Still another witness testified
that the victim never had a chance to get his knife out of
however, testified that Buchanan had been holding a cellular
telephone when the fight broke out and that when he went to
put it in his pocket, the victim asked if Buchanan was "
reaching." He further testified that the victim began
" jumping at [Buchanan], like breasting," that he
had a knife in his hand, and that Buchanan began backing away
from the victim. Another witness testified that she saw a
knife in the victim's hand, although Buchanan's back
was to her so she could not see if he was holding anything.
testimony concerning the distance between Buchanan and the
victim is also in conflict, with some witnesses testifying
the two men were a little more than an arm's length apart
and another testifying that they were at least one automobile
length apart. According to one witness, as the victim backed
away from Buchanan, the defendant came around a vehicle in a
creeping fashion, pulled a gun, and fired it over
Buchanan's shoulder. The victim fell to the ground. Some
witnesses heard the defendant say something like, " You
don't bring a knife to a gunfight." Herring heard
the defendant say this before he fired the gun; the others
heard him say it after the gun had been fired.
victim got up and ran to the rear of 20 Homestead, having
been shot once in the right lower back. He was taken to the
hospital, where he was pronounced dead. The defendant fled
toward Walnut Avenue, while Buchanan ran into 23 Homestead.
the police arrived, Herring screamed, " [H]urry up,
hurry up, he's dying," and ran to the back of the
building. Shortly thereafter, based on a description of the
shooter, officers stopped
the defendant [48 N.E.3d 432] near the Jackson Square subway
station. The defendant told the officers that he had just
gotten off the bus, that he was coming from his girl
friend's apartment in Somerville, and that he was going
to see his sister.
defendant was subsequently arrested. The K-9 unit searched 23
Homestead the next day and recovered the firearm used in the
shooting, concealed behind a box inside a small storage area
in the basement.
police also recovered the victim's knife. A Boston police
department criminologist testified that the knife's blade
did not stay up because the knife was missing its "
innards." She also testified that she did not know if
the knife worked before she examined it.
defendant argues that the judge's instruction on defense
of another (1) erroneously conflated principles of
self-defense and defense of another by suggesting that the
defendant had a duty to retreat; and (2) improperly negated
the possibility of a finding of so-called excessive force
manslaughter by stating, among other things, that the
defendant was required to avail himself of available
alternatives before employing deadly force., The ambiguous,
confusing, [48 N.E.3d 433] and contradictory
nature of the instructions, argues the defendant, warrants
reversal of his conviction. We agree, although for somewhat
different reasons from those proffered by the defendant.
Because the defendant raised a timely objection to the
judge's instruction to the jury, we review his claim for
prejudicial error. Commonwealth v. Kelly, 470 Mass.
682, 687, 25 N.E.3d 288 (2015). We determine " whether
the instructions were legally erroneous, and (if so) whether
the error was prejudicial." Id. at 688, quoting
Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306,
310, 909 N.E.2d 523 (2009). We will not find prejudice where
an error " did not influence the jury, or had but very
slight effect . ... But if one cannot say, with fair
assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error, [then] it
is impossible to conclude that substantial rights were not
affected." Kelly, 470 Mass. at 688, quoting
Commonwealth v. Flebotte, 417 Mass. 348, 353, 630
N.E.2d 265 (1994). We evaluate jury instructions " as a
whole, looking for the interpretation a reasonable juror