A. Self-defense

[Note to Judge: This instruction, at the discretion of the judge, may be given as a stand-alone instruction prior to the murder instruction or inserted within the murder instruction.[45]  The instruction is to be used where the evidence, viewed in the light most favorable to the defendant,[46] raises an issue of deadly force in self-defense.[47]  An instruction on self-defense is generally not warranted where the theory of murder is felony-murder alone, but might be warranted where the killing occurred during the defendant's escape or attempted escape, or where the defendant was unarmed and the victim was the first to use deadly force.[48] If the Commonwealth is entitled to an instruction on murder and felony-murder, the judge should generally instruct the jury that this instruction does not apply to felony-murder because the Commonwealth is not required to prove the absence of self-defense to prove felony-murder.]

Since this case raises a question as to whether the defendant properly used force to defend himself from an attack, I will provide you with instructions concerning the law governing the use of deadly force in self-defense before discussing the elements of the crime of murder.

A person is not guilty of any crime if he acted in proper self-defense.[49]  When I use the term "proper self-defense," I am distinguishing self-defense that is both justified and proportional and therefore a complete defense to the crime, from self-defense that is justified, but where excessive force is used. It is the Commonwealth's burden to prove beyond a reasonable doubt that the defendant did not act in proper self-defense.[50] The defendant does not have the burden to prove that he acted in proper self-defense. If the Commonwealth fails to prove beyond a reasonable doubt that the defendant did not act in proper self-defense, then you must find the defendant not guilty.[51]

The law does not permit retaliation or revenge.[52]  The proper exercise of self-defense arises from necessity of the moment and ends when the necessity ends.[53] An individual may only use sufficient force to prevent occurrence or reoccurrence of the attack.[54] The question of what force is needed in self-defense, however, is to be considered with due regard for human impulses and passions, and is not to be judged too strictly.[55]  

The Commonwealth satisfies its burden of proving that the defendant did not act in proper self-defense if it proves any one of the following four [or five] propositions beyond a reasonable doubt:[56]

  1. The defendant did not actually believe that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force.[57] Deadly force is force that is intended or likely to cause death or serious bodily harm.[58]
  2. A reasonable person in the same circumstances as the defendant would not reasonably have believed that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force.[59]
  3. The defendant did not use or attempt to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force.[60]
  4. The defendant used more force than was reasonably necessary under all the circumstances.[61]
  5. [Where there is evidence the defendant was the initial aggressor] The defendant was the first to use or threaten deadly force, and did not withdraw in good faith from the conflict and clearly communicate by words or conduct to the person (or persons) he provoked his intention to withdraw and end the confrontation without any use of, or additional use of, force.[62]

I will now discuss each of these four [or five] propositions in more detail, and remind you that the Commonwealth may satisfy its burden of proving that the defendant did not act in proper self-defense by proving any one of these propositions beyond a reasonable doubt:

The first proposition is that the defendant did not actually believe that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force.[63]

The second proposition is that a reasonable person in the same circumstances as the defendant would not reasonably have believed that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force.[64]

In considering whether or not the defendant actually believed that he was in immediate danger of death or serious bodily harm, and the reasonableness of that belief that he was in such danger, you may consider all the circumstances bearing on the defendant's state of mind at the time.[65],[66] Moreover, in determining whether the defendant was reasonably in fear of death or serious bodily harm, you may consider any or all of the following:

  • evidence of the deceased's reputation as a violent or quarrelsome person, but only if that reputation was known to the defendant;[67]
  • evidence of other instances of the deceased's violent conduct, but only if the defendant knew of such conduct;[68] and
  • evidence of threats of violence made by the deceased against the defendant, but again, only if the defendant was aware of such threats.[69]

[Where there is evidence the defendant at the time of the offense had a mental impairment or was under the influence of alcohol or drugs]  You may consider the defendant's mental condition at the time of the killing, including any credible evidence of mental impairment or the effect on the defendant of his consumption of alcohol or drugs, in determining whether the defendant actually believed that he was in immediate danger of serious bodily harm or death, but not in determining whether a reasonable person in those circumstances would have believed he was in immediate danger.[70]

[Where the evidence raises an issue of mistaken belief]  A person may use deadly force to defend himself even if he had a mistaken belief that he was in immediate danger of serious bodily harm or death, provided that the defendant's mistaken belief was reasonable based on all of the circumstances presented in the case.[71]

The third proposition is that the defendant did not use or attempt to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force.[72] Whether a defendant used all reasonable means to avoid physical combat before resorting to the use of deadly force depends on all of the circumstances, including the relative physical capabilities of the combatants, the weapons used, the availability of room to maneuver or escape from the area, and the location of the assault.[73]

[For self-defense cases not under the "castle law," G. L. c. 278, § 8A]  A person must retreat unless he reasonably believes that he cannot safely do so.  A person need not place himself in danger or use every means of escape short of death before resorting to self-defense.[74]

[For self-defense cases under the "castle law," G. L. c. 278, § 8A]  A person who is lawfully residing in his house, apartment or some other dwelling is not required to retreat before using reasonable force against an unlawful intruder, if the resident reasonably believes that the intruder is about to kill or seriously injure him or another person lawfully in the dwelling, and also reasonably believes that such force is necessary to protect himself or the other person lawfully in the dwelling.[75]

The fourth proposition is that the defendant used more force than was reasonably necessary under all the circumstances.[76] In considering whether the force used by a person was reasonable under the circumstances, you may consider evidence of the relative physical capabilities of the combatants, the number of persons who were involved on each side, the characteristics of any weapons used, the availability of room to maneuver, the manner in which the deadly force was used, the scope of the threat presented, or any other factor you deem relevant to the reasonableness of the person's conduct under the circumstances.[77]

[Where there is evidence the defendant was the initial aggressor] The fifth proposition is that the defendant was the first to use or threaten deadly force, and did not withdraw in good faith from the conflict and announce to the person (or persons) he provoked his intention to withdraw and end the confrontation without any use of or additional use of force.[78]

Self-defense cannot be claimed by a defendant who was the first to use or threaten deadly force, because a defendant must have used or attempted to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force.[79]  A defendant who was the first to use or threaten deadly force, in order to claim self-defense, must withdraw in good faith from the conflict and announce to the person (or persons) he provoked his intention to withdraw and end the confrontation without the use of force or additional force.[80]

[Note to Judge: In appropriate cases, add the following instruction:  However, if the defendant was the first to use non-deadly force but the deceased [or a third party acting together with the deceased] was the first to use deadly force, such as by escalating a simple fist-fight into a knife fight, the defendant may claim self-defense where he responded to the escalation with deadly force.[81]]  

For the purpose of determining who attacked whom first in the altercation, you may consider evidence of the deceased's [and a third party acting together with the deceased's] past violent conduct, whether or not the defendant knew of it.[82]

[Note to JudgeWhere the evidence, viewed in the light most favorable to the defendant, would permit the jury to find that the force used by the defendant in killing the victim was either deadly or non-deadly force, the defendant is entitled to instructions on the use of both deadly and non-deadly force in self-defense and the jury shall decide on the type of force used.[83]]

Deadly or Non-deadly Force: Deadly force is force that is intended to or likely to cause death or serious bodily harm. Non-deadly force, by contrast, is force that is not intended to or likely to cause death or serious bodily harm.[84] You must determine whether the Commonwealth has proved beyond a reasonable doubt that the defendant used deadly force.  If you have a reasonable doubt whether the defendant used deadly force, but are convinced that he used some force, then you must consider whether the defendant used non-deadly force in self-defense.  If the defendant had reasonable grounds to believe that he was in immediate danger of harm from which he could save himself only by using non-deadly force, and had availed himself of all reasonable means to avoid physical combat before resorting to non-deadly force, then the defendant had the right to use the non-deadly force reasonably necessary to avert the threatened harm, but he could use no more force than was reasonable and proper under the circumstances. You must consider the proportionality of the force used to the threat of immediate harm in assessing the reasonableness of non-deadly force.[85]

B. Defense of another

[Note to Judge: As with self-defense, this instruction may be given, in the discretion of the judge, as a stand-alone instruction prior to the murder instruction or inserted within the murder instruction.[86] The instruction is to be used where the evidence, viewed in the light most favorable to the defendant,[87] raises an issue of deadly force in defense of another.[88] An instruction on defense of another is generally not warranted where the theory of murder is felony-murder alone, but might be warranted where the killing occurred during the defendant's escape or attempted escape or where the defendant and the third person were unarmed and the victim was the first to use deadly force.[89] If the Commonwealth is entitled to an 

instruction on murder and felony-murder, the judge should generally instruct the jury that this instruction does not apply to felony-murder because the Commonwealth is not generally required to prove the absence of defense of another to prove felony-murder.[90] 

Because the issue of defense of another generally arises where there is also an issue of self-defense, the instruction below is premised on the jury having earlier been instructed as to the law of self-defense.  Where an issue of defense of another arises without an issue of self-defense, the judge may still need to explain the law of self-defense to assist the jury in understanding the law of defense of another, because the jury are required to determine whether, based on the circumstances known to the defendant, a reasonable person would believe that the other person was justified in using deadly force to protect himself.]

A person is not guilty of any crime if he acted in proper defense of another.  It is the Commonwealth's burden to prove beyond a reasonable doubt that the defendant did not act in proper defense of another.  The defendant does not have the burden to prove that he acted in proper defense of another.  If the Commonwealth fails to prove beyond a reasonable doubt that the defendant did not act in proper defense of another, then you must find the defendant not guilty.[91]

The Commonwealth may satisfy its burden of proving that the defendant did not act in proper defense of another by proving any one of the following three propositions beyond a reasonable doubt:[92]

  1. The defendant did not actually believe that the other person was in immediate danger of death or serious bodily harm from which the other person could save himself only by using deadly force.  You need not determine whether the other person actually believed himself to be in immediate danger of death or serious bodily harm; you must focus instead on whether the defendant actually had that belief.[93]
  2. A reasonable person in the circumstances known to the defendant would not have believed that the other person was in immediate danger of death or serious bodily harm from which the other person could save himself only by using deadly force.  You need not determine whether a reasonable person in the circumstances known to the other person would have believed himself to be in immediate danger of death or serious bodily harm; you must focus instead on what a reasonable person in the circumstances known to the defendant would have believed.[94]
  3. A reasonable person in the circumstances known to the defendant would not have believed that the other person was justified in using deadly force to protect himself.[95]

[Note to JudgeWhere the evidence, viewed in the light most favorable to the defendant, would permit the jury to find that the force used by the defendant in killing the victim was either deadly or non-deadly force, the defendant is entitled to instructions on the use of both deadly and non-deadly force in defense of another and the jury shall decide on the type of force used.[96]]

Deadly or Non-deadly Force:  Deadly force is force that is intended to or likely to cause death or serious bodily harm.  Non-deadly force, by contrast, is force that is not intended to or likely to cause death or serious bodily harm.[97] If the defendant, based on the circumstances known to the defendant, had reasonable grounds to believe (1) that the other person was in immediate danger of harm from which the other person could save himself only by using non-deadly force, and (2) that the other person was justified in using non-deadly force to protect himself, then the defendant had the right to use whatever non-deadly means were reasonably necessary to avert the threatened harm, but he could use no more force than was reasonable and proper under the circumstances. You must consider the proportionality of the force used to the threat of immediate harm in assessing the reasonableness of non-deadly force.[98]

 

Footnotes

[45] Commonwealth v. Santiago, 425 Mass. 491, 506 (1997) ("Although it is generally preferable to instruct on the elements of a defense to a crime after describing the elements of the crime, a specific order in jury instructions is not required").

[46] Commonwealth v. Espada, 450 Mass. 687, 692 (2008) ("A defendant is entitled to have the jury . . . instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue" [citation omitted]).

[47] See Commonwealth v. Gonzalez, 465 Mass. 672, 682-685 (2013) (discussing evidence required for self-defense instruction). 

[48] An instruction on self-defense is generally not available to a defendant where the defendant committed a felony punishable by life imprisonment that provoked a victim to respond with deadly force.  See Commonwealth v. Rogers, 459 Mass. 249, 260 (2011) ("Generally, in Massachusetts, one who commits an armed robbery cannot assert a claim of self-defense"); Commonwealth v. Vives, 447 Mass. 537, 544 n.6 (2006) ("The right to claim self-defense is forfeited by one who commits armed robbery"); Commonwealth v. Maguire, 375 Mass. 768, 773 (1978) ("it has been held that the right to claim self-defense may be forfeited by one who commits an armed robbery, even if excessive force is used by the intended victim").  The rationale for this rule is that the nature of the underlying felony marks the defendant as the "initiating and dangerous aggressor."  Commonwealth v. Rogers, 459 Mass. at 260, quoting Commonwealth v. Garner, 59 Mass. App. Ct. 350, 363 n.14 (2003).  However, a self-defense instruction might be appropriate where the killing occurred during the defendant's escape or attempted escape, see Commonwealth v. Rogers, 459 Mass. at 260-261, or where the defendant was unarmed and the victim was the first to use deadly force.  See Commonwealth v. Chambers, 465 Mass. 520, 530 (2013) ("critical question in determining whether the Commonwealth proved that the defendant did not act in self-defense when he killed the victim was who first grabbed the kitchen knife that ultimately was the instrument of death, not who shouted first or who struck the first punch").  See generally Commonwealth v. Chambers, 465 Mass. at 528 ("in the context of homicide, a defendant may lose the right to claim self-defense only if he was the first to use or threaten deadly force"). 

[49] Commonwealth v. Rogers, 459 Mass. at 269-270 ("if the defendant acted with reasonable force in self-defense, he was entitled . . . to a verdict of not guilty").

[50] Commonwealth v. King, 460 Mass. 80, 83 (2011) ("Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense"); Commonwealth v. Glacken, 451 Mass. 163, 166-167 (2008), quoting Commonwealth v. Williams, 450 Mass. 879, 882 (2008) ("To obtain a conviction of murder '[w]here the evidence raises a question of self-defense, the burden is on the government to prove beyond a reasonable doubt that the defendant did not act in self-defense'").

[51] See Commonwealth v. Glacken, 451 Mass. at 166-167.

[52] See Commonwealth v. Pike, 428 Mass. 393, 398 (1998) (self-defense theory not submitted to jury where evidence showed defendant used force out of "anger or revenge").

[53] Commonwealth v. Santos, 454 Mass. 770, 782-783 (approving of prior jury instruction); Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966) ("right of self-defense arises from necessity, and ends when the necessity ends").

[54] Commonwealth v. King, 460 Mass. 80, 83 (2011) ("force that was used was greater than necessary in all the circumstances of the case"); Commonwealth v. Kendrick, 351 Mass. at 211-212.

[55] Commonwealth v. Kendrick, 351 Mass. at 211, quoting Monize v. Begaso, 190 Mass. 87, 89 (1906).

[56] See Commonwealth v. Glacken, 451 Mass. at 167 (enumerating required factors for self-defense).

[57] Commonwealth v. Wallace, 460 Mass. 118, 124-125 (2011), quoting Commonwealth v. Hart, 428 Mass. 614, 615 (1999) ("If deadly force is used, a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force").  See Commonwealth v. Santos, 454 Mass. at 773; Commonwealth v. Diaz, 453 Mass. 266, 280 (2009), quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).

[58] Commonwealth v. Noble, 429 Mass. 44, 46 (1999) ("force intended or likely to cause death or serious bodily harm").  Commonwealth v. Cataldo, 423 Mass. 318, 321 (1996), quoting Commonwealth v. Klein, 372 Mass. 823, 827 (1977).

[59] Commonwealth v. Wallace, 460 Mass. at 124-125; Commonwealth v. Santos, 454 Mass. at 773.

[60] Commonwealth v. Mercado, 456 Mass. 198, 209 (2010), citing Commonwealth v. Benoit, 452 Mass. 212, 226 (2008) ("privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat").

[61] Commonwealth v. Glacken, 451 Mass. at 167 ("defendant used more force than was reasonably necessary in all the circumstances of the case").

[62] Commonwealth v. Chambers, 465 Mass. 520, 528 (2013), quoting Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) ("a criminal defendant who is found to have been the first aggressor loses the right to claim self-defense unless he 'withdraws in good faith from the conflict and announces his intention to retire'").

[63] Commonwealth v. Hart, 428 Mass. at 615, quoting Commonwealth v. Wallace, 460 Mass. at 124-125 ("If deadly force is used, a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force").  See Commonwealth v. Santos, 454 Mass. at 773; Commonwealth v. Diaz, 453 Mass. at 280.  

[64] Commonwealth v. Wallace, 460 Mass. at 124-125; Commonwealth v. Santos, 454 Mass. at 773.

[65] See Commonwealth v. Santos, 454 Mass. at 773 ("person using a dangerous weapon [or deadly force] in self-defense must also have actually believed that he was in imminent danger of serious harm or death"); Commonwealth v. Little, 431 Mass. 782, 787 (2000).

[66] In deciding whether the evidence in the case, viewed in the light most favorable to the defendant, raises a question of self-defense, a judge may consider, among other evidence:

"(a) evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse;

"(b) evidence by expert testimony regarding the common pattern in abusive relationships; the nature and effects of physical, sexual or psychological abuse and typical responses thereto, including how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm; the relevant facts and circumstances which form the basis for such opinion; and evidence whether the defendant displayed characteristics common to victims of abuse."

G. L. c. 233, § 23F.  See Commonwealth v. Anestal, 463 Mass. 655, 676 (2012) ("psychological consequences of a history of abuse are relevant to the consideration whether the defendant was in fear of serious injury or death"). 

[67] Commonwealth v. Clemente, 452 Mass. 295, 308 (2008), citing Commonwealth v. Fontes, 396 Mass. 733, 734-735 (1986) ("The judge instructed in regard to the reputation evidence that the jury could consider whether the victim had a reputation as a 'violent or quarrelsome person that was known to the defendant before the alleged incident.'  That instruction was and is a correct statement of the law").

[68] Commonwealth v. Adjutant, 443 Mass. 649, 654 (2005), quoting Commonwealth v. Fontes, 396 Mass. at 735, 737 ("Massachusetts has long followed the evidentiary rule that permits the introduction of evidence of the victim's violent character, if known to the defendant, as it bears on the defendant's state of mind and the reasonableness of his actions in claiming to have acted in self-defense"); Commonwealth v. Rodriquez, 418 Mass. 1, 5 (1994), quoting Commonwealth v. Fontes, 396 Mass. at 735, and Commonwealth v. Pidge, 400 Mass. 350, 353 (1987) ("It is well established that a defendant asserting self-defense is allowed to introduce evidence showing 'that at the time of the killing [she] knew of specific violent acts recently committed by the victim'" because such evidence is relevant in determining "whether the defendant acted justifiably in reasonable apprehension of bodily harm").

[69] Commonwealth v. Pidge, 400 Mass. at 353; Commonwealth v. Edmonds, 365 Mass. 496, 502 (1974).  Where a defendant has been the victim of abuse, evidence of abuse and expert testimony regarding the consequences of abuse are admissible and may be considered by the jury with respect to the reasonableness of a defendant's apprehension that death or serious bodily injury was imminent, the reasonableness of a defendant's belief that he had used all available means to avoid physical combat, and the reasonableness of a defendant's perception of the amount of force needed to deal with the threat.  See G. L. c. 233, § 23F.

[70] Cf. Commonwealth v. Barros, 425 Mass. 572, 576 (1997) ("determination as to whether a defendant's belief concerning his exposure to danger was reasonable may not take into account his intoxication").

[71] Commonwealth v. Pike, 428 Mass. at 396-397 ("If the defendant's apprehension of grievous bodily harm or death, though mistaken, was reasonable, his actions in self-defense may be justifiable").

[72] Commonwealth v. Mercado, 456 Mass. at 209, citing Commonwealth v. Benoit, 452 Mass. at 226 ("privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat").

[73] Commonwealth v. Pike, 428 Mass. at 399 ("Whether a defendant used all reasonable means of escape before acting in self-defense is a factual question dependent on a variety of circumstances, including the relative physical capabilities of the combatants, the weapons used, the availability of maneuver room in, or means of escape from, the area, and the location of the assault").

[74] Commonwealth v. Benoit, 452 Mass. at 226-227, quoting Commonwealth v. Pike, 428 Mass. at 398 ("A self-defense instruction is not required unless there is some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force.  '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 of escape short of death before resorting to self-defense . . . .  He must, however, use every reasonable avenue of escape available to him'" [citations omitted]).  Cf. Commonwealth v. Peloquin, 437 Mass. 204, 212 (2002) (noting in dicta that set of jury "instructions, taken as a whole, explained that a defendant need not retreat unless he can do so in safety, and need not do so when he would increase the danger to his own life").

[75] This instruction is required by G. L. c. 278, § 8A, which provides that, where "an occupant of a dwelling . . . was in his dwelling at the time of the offense and . . . acted in the reasonable belief that the person unlawfully in [the] dwelling was about to inflict great bodily injury or death upon [the] occupant or upon another person lawfully in [the] dwelling, and that [the] occupant used reasonable means to defend himself or such other person lawfully in [the] dwelling[, that] [t]here shall be no duty on [the] occupant to retreat from [the] person unlawfully in [the] dwelling."  This instruction is not appropriate where the occupant of a dwelling uses force on another person lawfully in the dwelling.  See Commonwealth v. Peloquin, 437 Mass. at 208 ("Nothing in G. L. c. 278, § 8A, . . . eliminates the duty on the part of the occupant of the dwelling to retreat from a confrontation with a person who is lawfully on the premises").  See also Commonwealth v. Carlino, 449 Mass. 71, 76 (2007) (instruction not warranted where fatal encounter occurs outside of dwelling, in driveway); Commonwealth v. McKinnon, 446 Mass. 263, 267-268 (2006) (same; outside stairs and porch).

[76] Commonwealth v. Glacken, 451 Mass. at 167 ("defendant used more force than was reasonably necessary in all the circumstances of the case").

[77] Commonwealth v. Walker, 443 Mass. 213, 218 (2005); Commonwealth v. King, 460 Mass. at 83 & n.2, 87, affirming the factors given in Commonwealth v. Kendrick, 351 Mass. at 212 ("jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from, the . . . area").

[78] Commonwealth v. Chambers, 465 Mass. at 528, quoting Commonwealth v. Maguire, 375 Mass. at 772 ("a criminal defendant who is found to have been the first aggressor loses the right to claim self-defense unless he 'withdraws in good faith from the conflict and announces his intention to retire'").

[79] See Commonwealth v. Barbosa, 463 Mass. 116, 136 (2012), quoting Commonwealth v. Maguire, 375 Mass. at 772 ("right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault").  See also Commonwealth v. Harris, 464 Mass. 425, 435-436 & n.11 (2013) (noting that instruction that "[a] person who provokes or initiates an assault ordinarily cannot claim the right of self-defense" is "potentially overbroad because it does not define what constitutes provocation of the type that results in the forfeiture of a self-defense claim" and advising judges to "make clear that conduct involving only the use of nonthreatening words will not be sufficient to qualify a defendant as a first aggressor").

[80] Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007), quoting Commonwealth v. Maguire, 375 Mass. at 772 ("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").

[81] Commonwealth v. Chambers, 465 Mass. at 528 ("in the context of homicide, a defendant may lose the right to claim self-defense only if he was the first to use or threaten deadly force").  See Commonwealth v. Harris, 464 Mass. at 436 n.12 ("when a first aggressor or initial aggressor instruction is given in the context of self-defense we advise that the judge make clear that conduct involving only the use of nonthreatening words will not be sufficient to qualify a defendant as a first aggressor"). 

[82] Commonwealth v. Pring-Wilson, 448 Mass. at 736-738, quoting Commonwealth v. Adjutant, 443 Mass. at 664 (evidence of violent conduct, even when defendant did not know of such conduct, admissible to resolve contested identity of likely first attacker; "where the identity of the first aggressor is in dispute and the victim has a history of violence . . . trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense").

[83] Commonwealth v. King, 460 Mass. at 83.

[84] Commonwealth v. Cataldo, 423 Mass. at 325 ("force neither intended nor likely to cause death or great bodily harm"); Commonwealth v. Lopes, 440 Mass. 731, 739 (2004) (using one's fists is non-deadly force).

[85] Commonwealth v. King, 460 Mass. at 83, quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004) ("(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. Adams, 458 Mass. 766, 774 (2011); Commonwealth v. Lopes, 440 Mass. at 739, quoting Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995) ("use of non-deadly force is justified at a lower level of danger, in circumstances giving rise to a 'reasonable concern over his personal safety'"); Commonwealth v. Noble, 429 Mass. at 46.

[86] Commonwealth v. Santiago, 425 Mass. at 506 ("Although it is generally preferable to instruct on the elements of a defense to a crime after describing the elements of the crime, a specific order in jury instructions is not required").

[87] Commonwealth v. Okoro, 471 Mass. 51, 68 (2015) ("A judge must instruct the jury on defense of another where the evidence when viewed in the light most favorable to the defendant could support a finding that the use of force was justified on this basis").

[88] Commonwealth v. Barbosa, 463 Mass. at 135-136.

[89] The law governing self-defense is generally instructive regarding defense of another.  An instruction on self-defense is generally not available to a defendant where the defendant committed a felony punishable by life imprisonment that provoked a victim to respond with deadly force.  See Commonwealth v. Rogers, 459 Mass. 249, 260 (2011) ("Generally, in Massachusetts, one who commits an armed robbery cannot assert a claim of self-defense"); Commonwealth v. Vives, 447 Mass. 537, 544 n.6 (2006) ("The right to claim self-defense is forfeited by one who commits armed robbery"); Commonwealth v. Maguire, 375 Mass. at 773 ("it has been held that the right to claim self-defense may be forfeited by one who commits an armed robbery, even if excessive force is used by the intended victim").  The rationale for this rule is that the nature of the underlying felony marks the defendant as the "initiating and dangerous aggressor."  Commonwealth v. Rogers, 459 Mass. at 260, quoting Commonwealth v. Garner, 59 Mass. App. Ct. 350, 363 n.14 (2003). However, a self-defense instruction might be appropriate where the killing occurred during the defendant's escape or attempted escape, see Commonwealth v. Rogers, 459 Mass. at 260-261, or where the defendant was unarmed and the victim was the first to use deadly force.  See Commonwealth v. Chambers, 465 Mass. at 530 ("critical question in determining whether the Commonwealth proved that the defendant did not act in self-defense when he killed the victim was who first grabbed the kitchen knife that ultimately was the instrument of death, not who shouted first or who struck the first punch").  See generally Commonwealth v. Chambers, 465 Mass. at 528 ("in the context of homicide, a defendant may lose the right to claim self-defense only if he was the first to use or threaten deadly force"). 

[90] If the evidence, viewed in the light most favorable to the defendant, supports a finding that the defendant acted in proper defense of another, the court must instruct the jury on defense of another, including cases where the Commonwealth is proceeding on a theory of felony-murder.  See generally Commonwealth v. Brown, 477 Mass. 805 (2017); Commonwealth v. Fantauzzi, 91 Mass. App. Ct. 194 (2017) (where underlying felony is the unlawful possession of a firearm, Commonwealth in some circumstances may need to prove the absence of self-defense).  If the Commonwealth is proceeding on a theory of felony-murder, a separate instruction regarding proper defense of another may be required where defense of another is raised in connection with the underlying felony.

[91] See Commonwealth v. Glacken, 451 Mass. at 166-167.

[92] See Commonwealth v. Young, 461 Mass. 198, 208 (2012) (enumerating required factors for defense of another); Commonwealth v. Martin, 369 Mass. 640, 649 (1976) (same).

[93] See Commonwealth v. Barbosa, 463 Mass. at 135-136; Commonwealth v. Young, 461 Mass. at 209 & n.19; Commonwealth v. Martin, 369 Mass. at 649.

[94] See Commonwealth v. Young, 461 Mass. at 209 & n.19 (circumstances must be viewed from perspective of intervening defendant, not third party; "whether the third party was, in retrospect, actually entitled to use self-defense is not a consideration").  See also Commonwealth v. Barbosa, 463 Mass. at 135-136.

[95] See Commonwealth v. Young, 461 Mass. at 208, quoting Commonwealth v. Martin, 369 Mass. at 649.  See also Commonwealth v. Barbosa, 463 Mass. at 135-136.

[96] Commonwealth v. King, 460 Mass. at 83.

[97] Commonwealth v. Cataldo, 423 Mass. at 325 ("force neither intended nor likely to cause death or great bodily harm").  See Commonwealth v. Lopes, 440 Mass. at 739 (using one's fists is non-deadly force).

[98] See Commonwealth v. King, 460 Mass. at 83 ("(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. Adams, 458 Mass. at 774; Commonwealth v. Lopes, 440 Mass. at 739 ("use of non-deadly force is justified at a lower level of danger, in circumstances giving rise to a 'reasonable concern over his personal safety'"); Commonwealth v. Noble, 429 Mass. at 46.

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Date published: April 25, 2018

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