Commonwealth v. White

226 N.E.3d 328

103 Mass.App.Ct. 655

COMMONWEALTH

v.Jeffrey WHITE.

No. 22-P-1036

Appeals Court of Massachusetts, Worcester.

Argued September 14, 2023

Decided January 9, 2024

Assault and Battery. Practice, Criminal, Request for jury instructions. Self-Defense. Evidence, Self-defense, Credibility of witness. Witness, Credibility. Abuse Prevention.

Complaint received and sworn to in the Worcester Division of the District Court Department on May 6, 2021.

The case was tried before Andrew J. Abdella, J.

Ann Grant, Committee for Public Counsel Services, for the defendant.

Danielle E. Borges, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Shin, & Ditkoff, JJ.

DITKOFF, J.

₆₅₅The defendant, Jeffrey White, appeals from his conviction, after a jury trial in the District Court, of assault and battery on a family or household member, G. L. c. 265, ₆₅₆§ 13M (a).¹ We conclude the trial judge erred in denying the defendant’s request for an instruction on self-defense, as the defendant testified that he pushed the victim away and fled while she was coming towards him with a broken beer bottle after hitting him with a dog leash. Further concluding that evidence that the victim obtained an abuse prevention order subsequent to the criminal acts charged functioned as inadmissible evidence that the victim repeated her allegations and that a judge believed her, we vacate the judgment.

1. Background. a. The Commonwealth’s case. The fifty-seven year old victim and the fifty year old defendant had been living together and in a romantic relationship for approximately fifteen years. The relationship "went downhill" when the defendant started cheating on the victim. On the evening of May 5, 2021, the defendant and the victim "started arguing," and the defendant -- who was the only person named on the lease -- instructed the victim to leave. When she refused, he told her, "You’re going to jail today," left the house, and called the police.

When the defendant returned to the house, the couple "started arguing, and he launched at [the victim] and knocked [her] on the floor and started strangling [her]." The victim wrestled with the defendant, eventually got away, and called the police herself.

The responding officer interviewed the defendant, who told the officer that the victim threatened him "with a bottle going toward a knife" and hit him with a dog leash. He stated that "he was threatened, and then eventually he ended up pushing her and grabbing at her jacket around the neck." The officer observed that the defendant appeared uninjured and the victim had "reddish marks around her neck."

The following morning, the victim went to the same District Court and applied for an abuse prevention order against the defendant "in front of a judge." Over objection, the victim testified that she obtained the order. Also over objection, the order was admitted in evidence. The exhibit consists of the initial order, which was granted on May 6, 2021, and signed by a judge, and a subsequent extension of that order, which was granted on May 24, 2021, and signed by a judge. At the top of the first page, the exhibit showed that the judge had checked the box next to a preprinted statement that the order was "issued without advance ₆₅₇notice because the Court determined that there is a substantial likelihood of immediate danger of abuse." The judge ordered the defendant "not to abuse the [victim] by harming, threatening or attempting to harm the [victim] physically." The judge further ordered the defendant to "not contact the [victim] … [and] to immediately leave and stay away from the [victim’s] residence."

b. The defendant’s case. The defendant testified that he and the victim had broken up a year prior to the incident but he had been allowing her to live in the house. This did not sit well with his new girlfriend, so he told the victim that she had to find a new place to stay within two months. He then discovered that the victim had posted on the social networking website Facebook that he was a child molester, so he told her she had to leave that night. "She grabbed a beer bottle, broke the beer bottle on the side of the bed, and told [him] that she wasn’t going anywhere, that she was staying there." The defendant went downstairs, and the victim "followed [him] with the beer bottle in her hand." While the defendant and the victim were in the kitchen, the victim grabbed a thick metal dog leash off the counter and hit the defendant’s shoulder with it. The defendant then noticed that the victim looked at a knife that was on the counter and, as she was approaching him, "[s]he went to reach for the knife." At this point the defendant "grabbed her by the collar" and "pushed her away." The defendant went outside and called the police.

[1–3] 2. Self-defense. Where, as here, 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 assessing reasonableness.’ "

Commonwealth v. King, 460 Mass. 80, 83, 949 N.E.2d 426 (2011), quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369, 810 N.E.2d 1251 (2004). "The evidentiary threshold for a defendant seeking an instruction on self-defense is low, as it is the Commonwealth’s burden to prove that the defendant did not act in proper self-defense once the issue is raised." Commonwealth v. Ortega, 480 Mass. 603, 610, 106 N.E.3d 675 (2018). The issue is preserved, as the defendant requested the ₆₅₈instruction both in writing and orally.²

See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 463, 997 N.E.2d 1200 (2013) ("when a judge refuses to give a requested instruction, a defendant’s rights are saved without the necessity of a further objection"). "We therefore review to determine whether the failure to instruct was error, and if it was, whether the error was prejudicial." Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651, 818 N.E.2d 1069 (2004).

[4] Viewing the evidence in the light most favorable to the defense of self-defense, see Commonwealth v. Tirado, 65 Mass. App. Ct. 571, 574, 842 N.E.2d 980 (2006), we conclude the defendant was entitled to a self-defense instruction. Here, according to the defendant’s testimony, the defendant tried to leave when the victim threatened him with a broken beer bottle, but the victim followed him with the beer bottle and then hit him with a heavy, metal chain dog leash. When she reached for a knife,³ he pushed her away and fled. On this evidence, a jury could find that the defendant had a reasonable fear for his safety as the person who had just struck him was armed with a broken beer bottle and was reaching for a knife. See Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 700, 779 N.E.2d 998 (2002) (defendant’s testimony that victim attacked her and was shoving her face adequate to raise reasonable doubt that defendant "had a reasonable concern for her physical safety"). Similarly, a jury could find that the defendant, who had already tried to retreat only to have the victim follow him, had availed himself of all reasonable means of retreat. See Commonwealth v. Benoit, 452 Mass. 212, 227, 892 N.E.2d 314 (2008), quoting Commonwealth v. Pike, 428 Mass. 393, 398, 701 N.E.2d 951 (1998) ("This rule does not impose an absolute duty to retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every means ₆₅₉of escape short of death before resorting to self-defense"). The Commonwealth, quite properly, does not contest the proposition that a simple push in response to being threatened with a broken beer bottle and a knife was a proportionate response. Accordingly, we conclude that the failure to instruct on self-defense constituted reversible error.

[5, 6] 3. Admission of the abuse prevention order. Because the defendant objected to the admission of the abuse prevention order and the victim’s testimony that she obtained it, we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005). "An error is not prejudicial if it did not influence the jury, or had but very slight effect." Commonwealth v. Souza, 492 Mass. 615, 627, 214 N.E.3d 411 (2023), quoting Commonwealth v. Wolfe, 478 Mass. 142, 150, 83 N.E.3d 811 (2017). To be sure, in other cases, the issuance of an abuse prevention order may be relevant and important evidence. See, e.g., Commonwealth v. Rintala, 488 Mass. 421, 446, 174 N.E.3d 249 (2021) (existence of abuse prevention orders obtained prior to murder "relevant and admissible to show motive and the hostile nature of the relationship between the defendant and the victim"); Commonwealth v. Sharpe, 454 Mass. 135, 144-145, 908 N.E.2d 376 (2009) (four abuse prevention orders obtained by victim admissible to demonstrate existence of hostile relationship and motive to kill); Commonwealth v. Butler, 445 Mass. 568, 575, 839 N.E.2d 307 (2005) (prior issuance of orders admissible in assault and battery prosecution to demonstrate existence of "a continuous hostile relationship"); Commonwealth v. Gonsalves, 99 Mass. App. Ct. 638, 640, 169 N.E.3d 216 (2021) (existence of order admissible in prosecution for stalking in violation of abuse prevention order); Commonwealth v. Watson, 94 Mass. App. Ct. 244, 245, 113 N.E.3d 374 (2018) (abuse prevention order admitted in prosecution for violation of that order).

[7] Here, however, the Commonwealth did not need to establish the existence of an abuse prevention order as an element of the crime or to show the nature of the relationship prior to the crime. Rather, the abuse prevention order had no uses other than to show that the victim repeated her...