Heard: October 12, 2018
found and returned in the Superior Court Department on June
30, 2014. The case was tried before Kimberly S. Budd, J.
Anders Smith for the defendant.
Julianne Campbell, Assistant District Attorney, for the
Present: Rubin, Wolohojian, & Blake, JJ.
Following a jury trial in the Superior Court, the defendant,
Rafael Leoner-Aguirre, was convicted of numerous crimes
stemming from a shooting in Chelsea. 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.
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
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.
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.
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.
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. The defendant did not object to the
instruction as given.