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Commonwealth v. Leoner-Aguirre

Appeals Court of Massachusetts, Suffolk

December 13, 2018

COMMONWEALTH
v.
RAFAEL LEONER-AGUIRRE.[1]

          Heard: October 12, 2018

         Indictments found and returned in the Superior Court Department on June 30, 2014. The case was tried before Kimberly S. Budd, J.

          S. Anders Smith for the defendant.

          Julianne Campbell, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Wolohojian, & Blake, JJ.

          BLAKE, J.

          Following a jury trial in the Superior Court, the defendant, Rafael Leoner-Aguirre, was convicted of numerous crimes stemming from a shooting in Chelsea.[2] He argued that he shot the victim in self-defense. On appeal, the defendant claims that the judge erred when she instructed the jury that the defendant had a duty to retreat, and that the judge improperly shifted the burden of production to the defendant on whether a self-defense instruction was warranted by the evidence. We affirm.

         Background.

         The jury were presented with the following evidence. On April 16, 2014, at approximately 2:30 £.M., Javier Servellon and Amilcar Portillo were walking down Broadway Street in Chelsea. Two men, Josue Morales and the defendant, approached Servellon and Portillo because they believed Servellon and Portillo had stabbed their friend. A fight broke out, initiated by the defendant and Morales. Servellon believed that one of the attackers had a weapon and tried to run away. However, Servellon turned back because he did not want to leave Portillo alone with the attackers. While trying to help Portillo, Servellon tried to hit the attackers with an object.[3]

         During the fight, Portillo saw the defendant display a gun and heard him say, "Today I'm going to kill you." Servellon saw the defendant "brace the gun," and turned around to flee. The defendant fired two shots at Servellon, who was struck in the buttocks. The defendant later admitted to others that he had shot Servellon and showed the gun to them.

         In connection with a police investigation of the shooting, the defendant told police that one of "two young men" had displayed a gun, and that the man tripped and dropped the gun during the altercation. The defendant explained that he was mad so he picked up the gun, shot it once, and then hid it in his bag.

         At trial, the defendant testified that he shot Servellon but did so in self-defense. He explained that he had problems with Servellon in the past, and that when he saw Portillo and Servellon on the street, he thought Portillo had a weapon. He testified that Portillo dropped a gun and that he, the defendant, "picked it up," "put it away," and then "r[an] to fight Servellon." He testified that Servellon tried to hit him twice with a bike chain, and that on Servellon's second attempt to hit him, he shot the gun at Servellon twice in self-defense.

         At the close of the evidence, the defendant filed a motion for "a self-defense jury instruction." Over the objection of the Commonwealth, the judge so instructed the jury.[4] The defendant did not object to the instruction as given.

         Duty ...


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