Commonwealth v. King

• Decision Date: 21 June 2011
• Docket Number: SJC–10808.
• Citation: Commonwealth v. King, 460 Mass. 80, 949 N.E.2d 426 (Mass. 2011)
• Parties: COMMONWEALTHv.Christopher Robert KING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 80

949 N.E.2d 426

COMMONWEALTH

v.Christopher Robert KING.

SJC–10808.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 7, 2011.Decided June 21, 2011.

Kathryn Karczewska Ohren for the defendant.Elisabeth Martino, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.IRELAND, C.J.

In 2007, a jury in the Central Division of the Boston Municipal Court Department convicted the defendant of assault and battery of the victim, Christopher Garden.G.L. c. 265, § 13A.He was sentenced to one year's probation.He appealed, arguing that the judge erred in instructing the jury on self-defense.The Appeals Court affirmed, Commonwealth v. King,77 Mass.App.Ct. 194, 203, 929 N.E.2d 317(2010), and we granted the defendant's application for further appellate review.Because we conclude that the error in the jury instruction on self-defense did not create a substantial risk of a miscarriage of justice, we affirm the defendant's conviction.

Facts and background.We recite the essential facts introduced by the Commonwealth and the defendant, reserving certain details for our discussion of the issue.

The Commonwealth's case.The Commonwealth's case was presented through the testimony of the victim, a witness, and a police sergeant. The victim was an employee of Kings, a bowling alley, bar, and restaurant in Boston.The restaurant and lounge are separated from the bowling alleys by a doorway.Every Monday night, Kings hosted “industry night” where employees of the hospitality industry of Boston gathered to socialize and to bowl for free.Kings had a bowling team; the victim was a member.

One week before the incident, the victim went into the lounge area of the restaurant and, on seeing a woman paying for the defendant's drinks, said to the defendant, “Don't make your bitch pay for your drinks.”Words were exchanged, but the victim “removed [him]self from the situation.”The victim did not threaten the defendant; he walked away because he did not want to endanger his job.

One week later the victim was bowling.He did not know that the defendant was there.After he finished bowling, the victim walked through the doorway into the lounge area.He denied having a glass in his hand at the time.Without warning, the defendant punched the victim in the face above his left eye.The victim stated that he did not know whether the defendant had anything in his hand when he punched him.Before the victim was taken to an ambulance, he apparently spoke to a responding police officer and said that he did not know what had happened.However, he testified that, after the punch, he remembered nothing until he woke up in an ambulance.He suffered injuries to his head and face, including fractures to his eye socket and face that required surgery.The extent of the injuries was introduced solely through the victim's testimony.

A hostess, who had been working at Kings for approximately one month, testified that, after she heard a woman scream, she went into the lounge area and saw the victim on the floor with shards from a broken glass all around him, as well as blood on the left side of his face, over his eyes, and on his forehead.She also saw the defendant standing a few tables away from the victim, being restrained by some of his friends.After she dialed 911, she returned to the lounge and noticed that no tables, which had been set complete with glassware, were overturned.The broken glass that was on the floor was not the same as the glasses that were used to set the tables.She noticed one table where the chairs were pushed away as if people had been sitting there.

Police spoke to the victim and others.A sergeant at the scene testified that he read the defendant the Miranda warnings, after which the defendant claimed he had been attacked by the victim and several of his friends.The defendant did not tell the officer that he had been punched by the victim or anyone else, but stated “a couple of times that he was very sorry.”The defendant was not arrested at that time.¹

The Commonwealth's theory was that, in retaliation for the earlier exchange, the defendant hit the victim in the face with a glass or with his fist.

The defendant's case.The defendant presented a different version of events.The defendant and several of his coworkers were at Kings for the Monday industry night when the victim made his statement about paying for drinks to the defendant.During that earlier incident, the defendant and his coworkers told the victim to “get lost.”The victim challenged the defendant to a fight, even removing his jacket, but they did not fight.

On the evening of the incident, the defendant saw the victim and made eye contact.According to the defendant, as he entered through the door to the lounge, the victim was inside the lounge about four feet away.The victim's “eyes lit up” when he saw the defendant, but the defendant did not recall whether there were words between them.The victim turned around to place a glass on a table and came back, “with his fist cocked,” punching the defendant in the face.The defendant immediately punched back and the victim “stumbled on” and fell “off” a table and “fell on his head pretty hard.”On cross-examination, the defendant denied that he told the police officer that he had been attacked by the victim and several of his friends.He did say that he told the officer that the victim had hit him first.

One coworker, Craig Hart, was in the lounge.His testimony corroborated the defendant's; he added that he saw the victim and the defendant engaged in a heated discussion.

Another coworker, Sean Griffin, testified that double swinging doors led into the lounge and that he was right behind the defendant as he was entering the lounge through one of the doors.He stated that the victim was standing in front of the doorway to the lounge, “block[ing] in”the defendant.Griffin testified that, after the victim put down a glass he had in his hand, the victim came at the defendant with a clenched fist.He did not state that the victim hit the defendant.

Discussion.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 assessing reasonableness.”Commonwealth v. Franchino,61 Mass.App.Ct. 367, 368–369, 810 N.E.2d 1251(2004), and cases cited.If the evidence warrants a self-defense instruction, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense, by establishing that at least one of the three factors did not exist (i.e., that the defendant did not have reasonable concern for his safety, that he did not use all reasonable means to avoid physical combat, or that the force that was used was greater than necessary in all the circumstances of the case).Commonwealth v. Glacken,451 Mass. 163, 167, 883 N.E.2d 1228(2008).“The jury must receive complete instructions from the trial judge, including an explanation of the proper factors to be considered in determining the issue of self-defense.”Commonwealth v. Shaffer,367 Mass. 508, 512, 326 N.E.2d 880(1975), discussingCommonwealth v. Kendrick,351 Mass. 203, 218 N.E.2d 408(1966).²

Here, there is no dispute that the defendant was entitled to an instruction on self-defense or that the judge erred because he instructed the jury solely on whether the force that was used was greater than necessary in all circumstances:

“Evidence in this case has been offered that the defendant acted in self-defense.In sum, a person may lawfully use reasonable force to defend himself from physical attack.Once evidence of self-defense is presented, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense.In other words, if you have a reasonable doubt whether the defendant acted in self-defense, your verdict must be not guilty.A person may use no more force than is reasonably necessary in all of these circumstances to defend himself or herself.Unreasonable or excessive force is force that is manifestly disproportionate under all of these circumstances.

“The question as to how far a defendant could go in defending himself or herself is for you, the jury, to decide.

“You may give [due] regard to the infirmity of human impulse and passions.In considering the reasonableness of the defendant's conduct, you may consider evidence of the relative physical capabilities of the individuals involved in the incident.You may also consider how many persons were involved in each side.You may also consider the availability of room to maneuver or the means of escape from the area in question.The Commonwealth must prove beyond a reasonable doubt that the defendant acted with excessive force.Bear in mind that the defendant does not have to prove anything.If there is evidence that he may have acted in self-defense, then the Commonwealth must prove, beyond a reasonable doubt, that the defendant did not act in self-defense.If you determine that the Commonwealth has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty.In other words, if you have a reasonable doubt about whether or not the defendant acted in self-defense, your verdict must be not guilty.”³

There was no objection.

Where there is an erroneous jury instruction we review the entire charge to the jury to determine the interpretation a reasonable jury would place on the judge's words.SeeCommonwealth v. Williams,450 Mass. 879, 882, 883 N.E.2d 249(2008), quoti...