Com. v. Iglesia

• Decision Date: 01 August 1988
• Citation: 525 N.E.2d 1332,403 Mass. 132
• Parties: COMMONWEALTH v. Orlando IGLESIA, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1332

525 N.E.2d 1332

403 Mass. 132

COMMONWEALTH v. Orlando IGLESIA, Jr.

Supreme Judicial Court of Massachusetts Worcester.

Argued May 2, 1988.

Decided Aug. 1, 1988.

Michael R. Schneider, Committee for Public Counsel Services, Boston, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant was charged with assault and battery by means of a dangerous weapon, a beer bottle, on Michael Moreno, assault and battery by means of a dangerous weapon, a handgun, on Michael Guzman, assault with intent to kill Guzman, and unlawfully carrying a firearm. A jury acquitted the defendant of the first three charges and convicted him of unlawfully carrying a firearm. On appeal, which we transferred to this court on our own motion, the defendant argues that, in his instructions to the jury, the trial judge erroneously reduced the Commonwealth's burden of proof on the issue of necessity to a mere preponderance of the evidence. We affirm the judgment.

The several charges grew out of a series of incidents in Worcester on the night of September 12, and the early morning of September 13, 1985. The Commonwealth's evidence was that the defendant and Michael Moreno got involved in an altercation in the A.K. Lounge in Worcester, during which the defendant struck Moreno over the head with a beer bottle. After both men were ejected from the lounge, the fight continued in the street, where Moreno's brother Richard intervened to help him. The police then arrived, and Michael Moreno was transported by ambulance to Worcester City Hospital. At the hospital, Richard informed Michael that the defendant was armed and looking for him.

The Morenos' friend, Michael Guzman, then drove Michael Moreno to the V.I.P. Lounge, next to the A.K. Lounge, where they rejoined Richard. As the three men were leaving the establishment, the defendant walked in carrying a gun, and fired a shot at Michael Moreno. Guzman jumped on the defendant and a struggle ensued, during which Guzman was unable to wrest the gun from the defendant. Shots were fired, one of which struck Guzman in the side. As Guzman crawled away from the defendant, the defendant shot at him again and missed. The defendant then left the bar.

The defendant's version was quite different. He testified that he was playing cards that evening with Michael Moreno in the A.K. Lounge. After the defendant noticed Michael cheating for the second time, a group of people attacked the defendant. The attack continued outside the bar, and the assailants dispersed only when the police arrived. The defendant crawled to his car, and stayed there for one-half hour. Because his vision was obscured by blood, the defendant parked his car in front of the nearby V.I.P. Lounge, and went in to wash his face.

As he entered, he was jumped by Guzman, who had a gun. The defendant and Guzman struggled over the gun, and several shots went off, one of which struck Guzman. The defendant wrested the gun from Guzman, and went "immediately" and "directly" to the Worcester police station and turned in the gun.

Sergeant John Leszczynski of the Worcester police department testified that the defendant, who was covered with blood, walked into the Worcester police station at 1:35 A.M., on September 13, 1985, and placed a gun on the counter. When asked if the gun was his, the defendant twice replied, "No."

In Commonwealth v. Thurber, 383 Mass. 328, 330, 418 N.E.2d 1253 (1981), we noted that Model Penal Code § 3.02 (Proposed Official Draft 1962) defines necessity "in terms of a balancing of harms where the criminal conduct represents the better choice." In Commonwealth v. Brugmann, 13 Mass.App.Ct. 373, 376-377, 433 N.E.2d 457 (1982), the Appeals Court stated: "In essence, the 'competing harms' defense exonerates one who commits a crime under the 'pressure of circumstances' if the harm that would have resulted from compliance with the law significantly exceeds the harm actually resulting from the defendant's violation of the law. At its root is an appreciation that there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule. See generally LaFave & Scott, Criminal Law § 50 (1972); Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 291-296 (1974)" (footnote omitted). See Commonwealth v. Hood, 389 Mass. 581, 590, 452 N.E.2d 188 (1983), quoting Brugmann, supra, with approval.

In Commonwealth v. Lindsey, 396 Mass. 840, 845, 489 N.E.2d 666 (1986), this court assumed, without deciding, that "unlicensed temporary possession of a firearm in a public place might be lawful in spite of G.L. c....