Criminal, Instructions to jury, Presumptions and burden of
proof. Evidence, Presumptions and burden of proof,
C. Foley for the defendant.
Johanna S. Black, Assistant District Attorney, for the
defendant, Raheem Abubardar, was convicted of assault and
battery as a lesser included offense of attempted
murder.On appeal, he challenged the trial
judge's instruction on self-defense, specifically the
judge's failure to instruct on the use of nondeadly force
in self-defense. In an unpublished memorandum and order
pursuant to its rule 1:28, the Appeals Court affirmed the
conviction. See Commonwealth v.
Abubardar, 93 Mass.App.Ct. 1121 (2018). It concluded
that the defendant was not entitled to such an instruction
and, even if he had been, its absence did not give rise to a
substantial risk of a miscarriage of justice. See J_d. On
further appellate review, we reverse.
relevant part, the charges against the defendant arose out of
an altercation inside a parked van. The defendant testified
that the complainant instigated the events by hitting and
scratching him, and he was "just sitting there,"
"trying to hold [the complainant] and contain her ... so
[he] could get away." The complainant testified that the
defendant threatened and choked her; the defendant claimed he
only pushed her away. When a passerby saw the altercation and
knocked on the van window, the defendant pushed the
complainant and she opened the door and fled.
defendant's request and over the Commonwealth's
objection, the judge gave an instruction on self-defense.
Although the instruction was in its essence a deadly force
instruction, it was not identified in that way: the jury were
instructed on "proper self-defense" as a general
concept. Based on the instruction, the jury would have
understood that "the defendant did not act in proper
self-defense if [the Commonwealth] prove[d] . . . that the
defendant did not actually believe that he was in immediate
danger of death or serious bodily harm." On the evidence
at trial, to be sure, the jury could have concluded that the
defendant did not believe he was in "immediate danger of
death or serious bodily harm" during the altercation,
and so -- following the instructions that were given -- the
defendant could not have acted in "proper self-defense .
defendant did not propose a specific self-defense
instruction, nor did he object to the one that was given. We
conclude, however, that, in the circumstances present here,
he was also entitled to a nondeadly force instruction.
Drawing reasonable inferences in the defendant's favor,
see Commonwealth v. Pike, 428 Mass. 393, 395 (1998);
Commonwealth v. Toon, 55
Mass.App.Ct. 642, 645 (2002), and taking the defendant's
testimony as true, the evidence supported a finding that the
defendant's actions against the complainant consisted
solely of nondeadly force, i.e., holding and pushing her
away, rather than choking her as she had
"Where nondeadly force is used, a defendant is entitled
to a self-defense instruction if the evidence, viewed in the
light most favorable to the defendant without regard to
credibility, supports a reasonable doubt that (1) the
defendant had reasonable concern for his personal safety; (2)
he used all reasonable means to avoid physical combat; and
(3) 'the degree of force used was reasonable in the
circumstances, with proportionality being the touchstone for
Commonwealth v. King, 460 Mass.
80, 83 (2011), quoting Commonwealth v.
Franchino, 61 Mass.App.Ct. 367, 368-369 (2004).
There is no real dispute in this case that the evidence was
sufficient with respect to the first and third elements.
Viewing the evidence in the light most favorable to the
defendant, the jury could have found that he had a reasonable
concern for his personal safety and that he responded
proportionally: he testified that the complainant was hitting
and scratching him, and that he responded by holding or
pushing her away.
respect to the second element, requiring reasonable avoidance
of physical combat, defense counsel requested and received a
self-defense instruction over the Commonwealth's specific
objection that such an instruction was not warranted because
the defendant failed to retreat. See Toon, 55
Mass.App.Ct. at 653 (instruction warranted where defendant
"availed himself of all proper means to avoid physical
combat before resorting to the use of any force, deadly or
nondeadly"). Viewing the evidence in the light most
favorable to the defendant, after the complainant started
hitting him, "[he] tried to keep her from hitting
[him]," and he "just wanted to get away from
her." The defendant testified that he pushed her back
because "she had scratched [him] when she slapped [him]
in the face;" he said, "I'm trying to get out
the thing," "I'm getting away from her if I
can," "trying to get to the door --reach back to
the door," while "trying to keep her from hitting
me." Drawing inferences favorable to the defendant, this
was sufficient to warrant the instruction. See
Commonwealth v. Baseler, 419 Mass.
500, 502 (1995), quoting Commonwealth v.
Houston, 332 Mass. 687, 690 (1955) ("right
reasonably to use a nondeadly force, such as one's fists,
in self-defense, arises at a somewhat lower level of danger .
. . than the right to use a dangerous weapon").
stated, the defendant did not object to the omission of an
instruction on the use of nondeadly force in
self-defense.Although the jury acquitted the defendant
of attempted murder by strangulation, on the instructions
they were given, they could not have considered whether there
was any lawful basis on which he could have touched the
complainant at all, unless they also found that he reasonably
believed he was in imminent danger of death or serious bodily
harm. See Baseler, 419 Mass. at
503-504. They were not, in other words, given the option of
considering whether he properly exercised self-defense by
applying nondeadly force out of a "reasonable concern
for his personal safety." King, 460 Mass. at
case is similar to Baseler, supra. In that
case, the defendant was indicted on charges including assault
and battery by means of a dangerous weapon and assault and
"The trial judge properly gave an instruction on deadly
force when he charged the jury on the law of self-defense
regarding assault and battery by means of a dangerous weapon.
Nevertheless, the judge used the same deadly force
instruction that he had given for assault and battery by
means of a dangerous weapon when he charged the jury on the
law of self-defense for simple assault and battery. Thus, the
judge charged the jury on deadly force when he should have
given an instruction on self-defense relating to nondeadly
force. See Commonwealthv.Bastarache, [382 Mass. 86');">382 Mass. 86, 105 (1980)]. As a result,
the judge's instruction lowered the Commonwealth's
burden of proving that the defendant did not act in
self-defense in relation to the assault and battery charge.
Instead of having to prove that the defendant did not have a
reasonable concern over his own safety, see i_d. at 105 n.15,
the Commonwealth only had to prove that the defendant did not
have a reasonable belief that he was being attacked and in
imminent danger of death or serious bodily injury, or that he
did not use all reasonable efforts to avoid combat, or that
he used greater force than was reasonably necessary to defend
himself. Commo ...