Commonwealth v. Henriquez

• Decision Date: 13 April 2021
• Docket Number: 19-P-61
• Citation: 99 Mass.App.Ct. 1119,167 N.E.3d 906 (Table)
• Parties: COMMONWEALTH v. Brian HENRIQUEZ.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 1119

167 N.E.3d 906 (Table)

COMMONWEALTH

v.Brian HENRIQUEZ.

19-P-61

Appeals Court of Massachusetts.

Entered: April 13, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, a Superior Court jury convicted the defendant of assault and battery, G. L. c. 265, § 13A (a ) ; unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; resisting arrest, G. L. c. 268, § 32B ; and assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ). Immediately thereafter, following a jury-waived trial, he was found guilty of being an armed career criminal with three prior convictions. G. L. c. 269, § 10G (c ). We affirm the defendant's convictions for unlawful possession of a firearm, resisting arrest, and assault by means of a dangerous weapon,² but vacate the defendant's conviction for assault and battery, and so much of the order denying the defendant's motion for a new trial as related to that charge.

1. Background. On the morning of March 4, 2015, Norberto Garcia, a security guard at Peter Pan bus terminal in Springfield, walked by the defendant. Garcia was in uniform, and was carrying his personal firearm, loaded, in a holster on his belt. The defendant began yelling insults at Garcia, who told him to leave. The defendant did not comply, instead swinging his fist at Garcia. Garcia punched the defendant in the face, and the defendant fell to the ground.

The defendant got up and ran into the nearby parking lot. Garcia told the defendant that if he returned to the terminal property, he would call the police. Nonetheless, the defendant quickly returned, shouting that he was going to fight Garcia. The defendant again attempted to punch Garcia, and Garcia again punched back. Garcia testified that when the defendant again "rushe[d]" at him, he "pick[ed] him up and [threw] him on the ground," then got on top of the defendant. The defendant repeatedly spat at, scratched, and punched Garcia, grabbing at him. Garcia also told the defendant that if he continued that conduct, Garcia would "retaliate." The defendant continued to spit at and punch Garcia, and Garcia responded with a slap or punch each time the defendant spat at or punched him. The defendant also bit Garcia on the nose. In the course of the struggle, Garcia felt his gun come loose from its holster at his side; he grabbed the gun and, in an unsuccessful effort to convince the defendant to stop fighting him, forced the flat of the gun onto the defendant's chest, with the barrel pointed toward the defendant's neck, and pressed the gun onto the defendant's sternum. The defendant, however, got the gun away from Garcia and pointed it at him, asking, "[h]ow's it feel? I'm going to kill you with your own gun," before Garcia or Adjani Peart, a motor coach operator employed by Peter Pan, wrested the gun from the defendant's control.

Springfield Police Sergeant Arthur D'Ambrosia arrived on the scene as Garcia and the defendant were fighting, and after Peart had recovered the gun. D'Ambrosia, who was soon followed by other police officers, attempted to take the defendant into custody. The defendant stiffened and pulled his arm away from D'Ambrosia while continuing to struggle with Garcia and other officers.

2. Discussion. a. Jury instructions. i. Necessity defense. The defendant argues that he was entitled to a necessity instruction on the charge of unlawful possession of a firearm because Garcia's placement of the gun on the defendant's chest, with the muzzle pointed toward the defendant's neck, put the defendant at risk of being shot. Because he requested the instruction, the issue was preserved, and we review for prejudicial error. See Commonwealth v. Brown, 481 Mass. 77, 86 (2018). A defendant is entitled to an instruction on the defense of necessity "only after the defendant has presented some evidence on each of the four underlying conditions of the defense," Commonwealth v. Kendall, 451 Mass. 10, 14 (2008) :

"(1) [he was] faced with a clear and imminent danger, not one which is debatable or speculative; (2) [he could] reasonably [have] expect[ed] that his action [would have been] effective as the direct cause of abating the danger; (3) there [was] [no] legal alternative which [would have been] effective in abating the danger; and (4) the Legislature [had] not acted to preclude the defense by a clear and deliberate choice regarding the values at issue."

Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 197 (2019), quoting Commonwealth v. Pike, 428 Mass. 393, 400 (1998). "In determining whether the defendant met this burden, we review the evidence in the light most favorable to him, see Kendall, supra at 11 ..., and treat his testimony, ‘no matter how incredible ..., as true,’ and resolve all reasonable inferences in his favor." Lockwood, supra at 197-198, quoting Commonwealth v. Magadini, 474 Mass. 593, 600 (2016).

Even if we assume that Garcia's pressing the gun flat to the defendant's chest presented a "clear and imminent danger" to the defendant, the defendant was not entitled to a necessity instruction here because any necessity permitting the defendant to possess Garcia's gun extended only until Garcia was disarmed, at which point the danger presented by Garcia's use of the gun against the defendant would have been abated. Lockwood, 95 Mass. App. Ct. at 197. Cf. Commonwealth v. Ben B., 59 Mass. App. Ct. 919, 919-920 (2003) (defendant not entitled to necessity defense to charge of unlawful possession of firearm where he remained in possession of firearm after imminent danger had abated); Commonwealth v. McCambridge, 44 Mass. App. Ct. 285, 291–92 (1998) (defendant entitled to necessity defense where legal alternative to defendant's unlicensed possession of firearm would not have been effective). "Where there is an effective alternative available which does not involve a violation of the law, the defendant will not be justified in committing a crime." Pike, 428 Mass. at 401, quoting Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, 379 (1982). We discern no error or abuse of discretion in the judge's denial of a request for a necessity instruction.

ii. Self-defense. The defendant argues that he was entitled to an instruction on self-defense as to the charge of assault and battery; the Commonwealth's theory on this charge was that the defendant hit, scratched, spat at, and bit Garcia as the two men struggled on the ground. "An instruction on self-defense must be given if any view of the evidence, viewed in the light most favorable to the defendant, ‘is sufficient to raise the issue.’ " Commonwealth v. Teixeira, 486 Mass. 617, 622 (2021), quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Specifically, there must be evidence that "(1) the defendant had a reasonable concern over 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" (citations and quotations omitted). Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368–369 (2004).

The fact that the defendant threw the first punches would ordinarily deprive him of his entitlement to an instruction on self-defense, as "[t]he right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless that person withdraws in good faith from the conflict and announces his intention to retire" (emphasis omitted). Commonwealth v. Naylor, 407 Mass. 333, 335 (1990), quoting Commonwealth v. Maguire, 375 Mass. 768, 772–773 (1978). Although the defendant briefly withdrew to the nearby parking lot, he renewed the fight by rushing back at Garcia and taking another swing at him. See Commonwealth v. Espada, 450 Mass. 687, 693-694 (2008) (defendant who "initiated the altercation and created the circumstances by which he alleges he could not retreat" not entitled to self-defense instruction); Commonwealth v. Niemic, 427 Mass. 718, 722 (1998) ("no privilege to use force in self-defense" where defendant fails to take advantage of opportunity to retreat). On appeal, however, the defendant argues that his right to self-defense was revived by Garcia's use of excessive force. As the defendant did not make this argument before the trial judge and did not object on that basis to the instructions the judge gave, we review any error by the judge in not giving a self-defense instruction for a substantial risk of a miscarriage of justice. See Commonwealth v. Thomas, 401 Mass. 109, 117-118 (1987).

Having done so, we conclude that, viewed in the light most favorable to the defendant, the evidence that Garcia "pick[ed] [the defendant] up and ... [threw] him on the ground" raised a question about Garcia's use of unreasonable force. See Commonwealth v. Miranda, 77 Mass. App. Ct. 76, 78, 80 (2010) (viewed in light most favorable to defendant, evidence of trooper's throwing subject to ground, then kneeling on her back, hurting her, sufficient to establish excessive force needed for instruction on defense of another). Had the jury found that Garcia used excessive force, they could also have found that his doing so restored the defendant's right to self-defense. See id. at 80 ("though [defendant] may have been the initial aggressor, the jury could have found [the officer's] use of excessive force restored [defendant's] right to self-defense"). Where the Commonwealth's case on the assault and battery charge was almost exclusively dependent on Garcia's testimony, and Garcia himself provided the evidence from which a jury could have determined that the defendant's punching, spitting, and biting while on the ground could have been a response to Garcia's use of excessive force, we are not persuaded that the judge's failure to give the self-defense instruction "did not ‘materially influence[ ]’ the guilty verdict."³ Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). On this record, the defendant was entitled to an instruction on self-defense and, accordingly, w...