Commonwealth v. Souza

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SJC-13357
COMMONWEALTH vs. JEFFREY SOUZA.
Bristol. April 5, 2023. - August 14, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Homicide. Firearms. Assault and Battery by Means of a
Dangerous Weapon. Self-Defense. Evidence, Self-defense,
Prior violent conduct. Practice, Criminal, Instructions to
jury, Argument by prosecutor, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on March 5, 2015.
The cases were tried before E. Susan Garsh, J.; a motion
for postconviction relief, filed on December 26, 2019, was
considered by Thomas J. Perrino, J., and a motion for
reconsideration was also considered by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Matthew V. Soares for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for
the Commonwealth.
LOWY, J. During a physical altercation, the defendant,
Jeffrey Souza, shot and killed Kyle Brady, the victim.
2
Thereafter, a Superior Court jury convicted the defendant of
murder in the second degree, assault and battery by discharge of
a firearm, unlawful possession of a firearm, and unlawful
possession of a loaded firearm. At trial, the defendant's
theory was that he killed the victim in lawful self-defense.1 In
support of that theory, the defendant sought to introduce so-
called Adjutant evidence or "evidence of specific incidents of
violence allegedly initiated by the victim." Mass. G. Evid.
§ 404(a)(2)(B) (2023). See Commonwealth v. Adjutant, 443 Mass.
649 (2005). The trial judge allowed the defendant to introduce
evidence of numerous violent incidents initiated by the victim.
However, the judge limited the testimony about these incidents
to evidence of the victim instigating violence and barred
additional testimony describing the entire violent event. On
appeal, among other issues, the defendant contends that the
judge committed an error of law in misconstruing our Adjutant
jurisprudence by limiting such evidence to the victim's first
act of violence, rather than allowing evidence of the entire
violent interaction. He further argues error in the judge's
instructions limiting the jury's consideration of the admitted
Adjutant evidence only as to who attacked whom first in the
1 The defendant also suggested that the shooting was an
accident. He raises no issue pertaining to that claim on
appeal.
3
altercation. Therefore, we address when specific incidents of
violence may be admitted in evidence pursuant to Adjutant and
its progeny, including Commonwealth v. Chambers, 465 Mass. 520(2013), the scope of such evidence, and the permissible purposes
for which a fact finder may consider such evidence.
We take this opportunity to reiterate that Adjutant
evidence is one of the few narrow exceptions to the general bar
on propensity evidence. In a case involving a claim of self-
defense, evidence of specific acts of violence initiated by the
victim under Adjutant are admissible in two specific
circumstances: (1) as to the identity of the first aggressor
when the first aggressor is disputed; and (2) "as to which
person [in a confrontation] escalated the potential for violence
through the use or threat of deadly force." Commonwealth v.
Deconinck, 480 Mass. 254, 263 (2018). We emphasize that
Adjutant evidence is admissible only when one or both of the
following issues are in dispute: to determine (1) who started
the confrontation; or (2) who escalated the confrontation by
using or threatening to use deadly force.
We further emphasize that Adjutant evidence is not strictly
limited to evidence of the victim initiating violence or
throwing the first punch. Rather, when the question of who
started the fight or who was the first to introduce deadly force
is at issue as part of a defendant's claim of self-defense,
4
evidence of the entire violent incident initiated by the victim
is potentially admissible to give the jury a full picture, thus
allowing them to make an informed decision in determining who
the first aggressor was. Deconinck, 480 Mass. at 263. The
admissibility of this evidence is always subject to the broad
discretion afforded to the trial judge "in evaluating . . . and
allowing the admission of 'so much of that evidence as is
noncumulative and relevant to the defendant's self-defense
claim.'" Id., quoting Adjutant, 443 Mass. at 663.
Here, as we shall explain, the trial judge curtailed the
examination of numerous witnesses testifying about violent
instances initiated by the victim by limiting the testimony to
the victim's initiation of violence. The judge's ruling
excluding the additional testimony about the violent
interactions demonstrates her belief that the objected-to
testimony exceeded both the scope and the purpose of Adjutant
evidence. As such, the judge committed an error of law in
ruling on this evidence. See Commonwealth v. Guilfoyle, 396
Mass. 1003, 1004 (1985). However, we ultimately discern no
prejudice from its exclusion. We also discern no error in the
judge's jury instruction regarding the jury's consideration of
Adjutant evidence.
We acknowledge, however, that the jury instruction
regarding Adjutant evidence contained within the Model Jury
5
Instructions on Homicide 34 & nn.81-82 (2018) could more
concisely and understandably explain the purpose and
admissibility of Adjutant evidence. We accordingly provide an
Appendix containing a model jury instruction regarding the use
of Adjutant evidence that is approved and recommended by this
court.
The defendant's other claims of error regarding improper
closing argument and ineffective assistance of counsel provide
no basis for relief. We affirm the defendant's convictions of
murder in the second degree and assault and battery by means of
discharging a firearm and the orders denying his motions for a
new trial and for reconsideration. However, pursuant to our
decision in Commonwealth v. Guardado, 491 Mass. 666, 690, 693
(2023), we vacate the defendant's convictions of carrying a
firearm without a license and carrying a loaded firearm without
a license.
Background. The defendant's convictions stem from a fight
and subsequent shooting that occurred near a park in Fall River
during the early morning hours of January 1, 2015, and resulted
in the victim's death. Prior to the fatal shooting, there had
been a long-standing feud between the victim and the defendant,
which centered around Courtney Morrison, who was, when the feud
began, the victim's girlfriend but had previously been the
defendant's girlfriend and was the mother of the defendant's
6
children. Between August 2014 and December 2014, the victim
repeatedly sent the defendant threatening messages. In some of
these messages, the victim challenged the defendant to a fight.
The defendant generally ignored the messages or responded by
telling the victim to "chill out."
On the evening of December 31, 2014, the defendant and his
friends encountered the victim's friend Kyle Emond at a bar in
Fall River. At trial, there was conflicting testimony about
this encounter. Emond testified that he heard the defendant say
that "he had something for [the victim],", and that Emond should
"[t]ell [the victim] to meet [the defendant] at [the park]" in
Fall River. But the defendant testified that he asked Emond to
call the victim to make peace because whenever the defendant
tried to do so, the victim threatened him.
Ultimately, Emond called Christopher Silvia, who was out
that evening with a group of friends, including the victim and
the victim's sister, Brittany Brady.2 While Emond was talking to
Silvia, the victim took Silvia's cell phone and walked away with
it. When the victim returned to Silvia and his group of
friends, the victim was "angry" and "didn't look too happy."
The victim told Silvia and his friends that he was leaving to
2Because Brittany Brady shares a surname with her brother,
the victim, we refer to her by her first name to avoid
confusion.
7
meet the defendant "for a fist fight." Brittany told the victim
that he was not going to the fight alone. Silvia, Brittany, and
the victim got into Silvia's car and drove to the park. At
around the same time, Emond and one of his friends drove to the
park, while the defendant and some of his friends drove to the
park separately.
The fight that resulted in the defendant shooting the
victim unfolded very quickly. Various people, in support of
both the defendant and the victim, were present near the park,
and the jury heard various accounts of how the fight transpired.
Undisputed, however, was that during the confrontation the
defendant carried a gun, produced it, and fired it. Two
gunshots were fired during the fight at an interval of
approximately sixteen seconds apart. The defendant testified
that during the fight he fired what he characterized as a
"warning shot." A silver revolver covered in blood was found at
the scene of the victim's death.3 The medical examiner
determined that the victim's cause of death was a single gunshot
wound to his chest.
3 On December 24, 2014, the defendant brought a revolver to
a party. The defendant testified that he had a silver revolver
with him near the park but that it was not the same one that he
had brought to the Christmas Eve party. However, a witness who
saw the revolver at the Christmas Eve party testified that the
revolver found near the victim's body resembled the revolver
that the defendant had at the party.
8
Because the primary issue on appeal involves Adjutant
evidence, the issue of how the fight began is of paramount
importance. Witnesses testified to various versions of how the
fatal confrontation began.
Under one version of events, when the victim's car arrived
at the park, the victim jumped from the car while it was still
moving and ran off. The next time that the defendant and victim
were seen, they were standing face to face, and one witness
heard the victim say something along the lines of, "You're not
going to shoot me." After a loud bang, the victim and defendant
were seen wrestling each other.
According to a second version of events, after arriving
near the park, the victim ran toward the car where the defendant
was sitting in the front passenger's seat. The victim opened
the car door in an attempt to get at the defendant, but the
defendant jumped out of the car, and then both the defendant and
the victim ran off.
The defendant testified that he arrived near the park
before the victim and decided to leave and have someone else
stay to talk to the victim. As the defendant was walking away,
someone tackled him from behind. When he got up from the
ground, the defendant saw the victim, Emond, Brittany, and
Silvia all running toward him. The defendant then pointed the
gun in the air and yelled at them to stop. When they did not
9
stop, he "fire[d] off a warning shot." Thereafter, undeterred,
the group attacked the defendant, and during the struggle the
gun went off a second time.
The jury found the defendant guilty of murder in the second
degree, assault and battery by means of discharging a firearm,
carrying a firearm without a license, and carrying a loaded
firearm without a license. The defendant filed a timely notice
of appeal. In December 2019, the defendant filed a motion for a
new trial. The motion was denied without a hearing by a
different judge.4 Thereafter, the defendant filed a motion for
reconsideration, which was also denied. The defendant then
filed another notice of appeal, and the Appeals Court
consolidated the defendant's direct appeal with his appeal from
the orders denying his motions for a new trial and
reconsideration. We then transferred the case sua sponte to
this court.
Discussion. Because the issues in this case deal with the
admission of character evidence pursuant to Adjutant, 443 Mass.
at 663-667, we briefly discuss character or propensity evidence
more generally to put the issue in context before specifically
addressing the purpose and admissibility of Adjutant evidence.
4 The motion was decided by a different judge as the trial
judge had since retired.
10
"Evidence of a person's bad character is generally not
admissible for the purpose of proving that he acted in
conformity with it." Commonwealth v. Daley, 439 Mass. 558, 562
(2003). Specific acts of bad conduct may be relevant and
admissible for a nonpropensity purpose such as state of mind,
intent, knowledge, or modus operandi, but as a general rule
evidence of such acts cannot be used for the purpose of
establishing the defendant's bad character or propensity to
commit the crime charged. Id. at 562-563. Notably, if
character evidence is misused "either in the examination of a
witness or in closing argument, we have long recognized that
instructions from the trial judge may mitigate any prejudice."
Id. at 564.
In certain very limited circumstances, the defendant may
offer evidence of a pertinent character trait of the victim.
See Mass. G. Evid. § 404(a)(2)(B)-(C). The defendant may offer
evidence known to the defendant of the victim's reputation for
violence to demonstrate, when relevant, the defendant's
reasonable apprehension of the victim. See, e.g., Commonwealth
v. Fontes, 396 Mass. 733, 735-736 (1986). See also Mass. G.
Evid. § 404(a)(2)(C). He or she may also offer, for the same
purpose, evidence of specific violent acts by the victim that
were previously known to the defendant and evidence of threats
to the defendant allegedly made by the victim and communicated
11
to the defendant by the victim or a third party. See, e.g.,
Fontes, supra; Commonwealth v. Edmonds, 365 Mass. 496, 499-500
(1974). See also Mass. G. Evid. § 404(a)(2)(C). Often
understandably confused with character evidence admissible for
propensity purposes, this evidence is not propensity evidence
and may not be considered for propensity purposes. Rather, it
is relevant and admissible evidence relating to the defendant's
state of mind. See, e.g., Commonwealth v. Correia, 492 Mass.
220, 227 (2023) ("defendant argued that it was reasonable for
him to assume that the victim had a gun at the park because the
defendant had seen the victim's social media posts that depicted
the victim with a gun"). See also Adjutant, 443 Mass. at 654("Massachusetts has long followed the evidentiary rule that
permits the introduction of evidence of the victim's violent
character . . . as it bears on the defendant's state of
mind . . .").
1. Adjutant evidence. With this context in mind, we now
discuss Adjutant evidence. "Notwithstanding our usual
hesitation to allow the admission of character evidence to prove
conduct" in conformity therewith, pursuant to Adjutant, and as
subsequently clarified in Chambers, there is a narrow exception
to the general prohibition on character or propensity evidence
that allows the admission of specific acts of violent conduct by
a victim to be admitted in evidence and considered for
12
propensity purposes. Adjutant, 443 Mass. at 660. See Chambers,
465 Mass. at 528-530. In Adjutant, supra at 664, we held that
"where the identity of the first aggressor is in dispute and the
victim has a history of violence, . . . the 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," regardless of
whether the defendant knew of the victim's prior violent acts.
This evidence "may be admitted as tending to prove that the
victim and not the defendant was likely to have been the 'first
aggressor'" because it may show "that the victim acted in
conformance with his character for violence" on the occasion in
question. Id. at 654.
Subsequently, in Chambers, we clarified "that the term
'first aggressor' is not limited to the person who provokes or
initiates" the conflict. Deconinck, 480 Mass. at 263, citing
Chambers, 465 Mass. at 528-530. Rather, in the context of
Adjutant evidence, the term "first aggressor" encompasses both
the person who started the fight and the person who first
escalated a nondeadly fight into a deadly one by either the
threat or use of deadly force.5 See Chambers, supra. See also
Deconinck, supra.5 While not at issue in this case, it is worth noting that
if a defendant introduces Adjutant evidence, "the prosecution
13
"[A]s often occurs [in cases where] self-defense is at
issue, there [can be] confusing and conflicting evidence of what
actually happened and a dispute about the identity of the first
aggressor." Commonwealth v. Morales, 464 Mass. 302, 307 (2013).
The purpose of Adjutant evidence "is to give the jury a full
picture of the altercation so as to make an informed decision
about the identity of the initial aggressor." Deconinck, 480
Mass. at 263, quoting Commonwealth v. Pring-Wilson, 448 Mass.
718, 737 (2007). Our rationale for creating this exception to
the general prohibition on propensity evidence "can be found in
the view that evidence reflecting the victim's propensity for
may rebut by introducing evidence of the victim's propensity for
peacefulness." See Mass. G. Evid. § 404(a)(2)(B) note, citing
Adjutant, 443 Mass. at 666 n.19. We also held in Commonwealth
v. Morales, 464 Mass. 302, 303 (2013), that "where a defendant
offers Adjutant evidence, the Commonwealth may offer evidence of
the defendant's prior violent acts, provided that the
Commonwealth gives the defendant advance notice of its intent to
offer such evidence 'and the trial judge determines that,'"
Chambers, 465 Mass. at 521 n.1, quoting Morales, supra, "its
probative value is [not] outweighed by the risk of unfair
prejudice to the defendant," Commonwealth v. Crayton, 470 Mass.
228, 249 & n.27 (2014) (clarifying standard for determining
admissibility of bad act evidence). See Commonwealth v. Moore,
480 Mass. 799, 809 n.9 (2018).
"Our case law has not always been consistent regarding the
[applicable] standard[s] for excluding evidence." Moore, supra.In Crayton, supra, we clarified that the "more exacting
standard" of admissibility applies to bad act evidence. We
acknowledge that such an inconsistency appeared in Chambers
where we discussed the Commonwealth's ability to rebut the
defendant's Adjutant evidence with evidence of the defendant's
bad acts. See Chambers, 465 Mass. at 521 n.1.
14
violence has substantial probative value and will help the jury
identify the first aggressor [or the first to initiate or
threaten deadly violence] when the circumstances of the
altercation are in dispute." Adjutant, 443 Mass. at 656.
"Whether [the victim] was a violent [person], prone to
aggression . . . , 'throws light' on the crucial question at the
heart of" such cases -- who attacked whom first or who escalated
the situation to one involving deadly force. Id. at 657-658,
quoting Commonwealth v. Woods, 414 Mass. 343, 356, cert. denied,
510 U.S. 815 (1993). And "[t]o decide what really occurred the
jury need[] all the available facts, including evidence of [the
victim's prior violence]." Adjutant, supra at 659, quoting
People v. Lynch, 104 Ill. 2d 194, 200 (1984).
We recognize that because Adjutant evidence is propensity
evidence "admitted expressly 'for the purpose of showing that
the victim acted in conformance with his [or her] character for
violence,' . . . there [is] a risk both of prejudice and of
misunderstanding on the jury's part as to the purpose of its
admission." Morales, 464 Mass. at 307, quoting Adjutant, 443
Mass. at 654. It is the trial judge's role to take action to
mitigate such risks. See Commonwealth v. Kapaia, 490 Mass. 787,
798 (2022), quoting Commonwealth v. Rollings, 354 Mass. 630, 638
(1968) ("The parties are entitled to have a jury appropriately
guided at all stages by the trial judge, whose proper
15
participation is essential to fair trial by jury"). Indeed,
"[i]t is the judge's function to act as the 'guiding spirit and
controlling mind at a trial,'" Kapaia, supra, quoting
Commonwealth v. Rivera, 441 Mass. 358, 368 (2004), and in that
guiding role, "[i]t is for the trial judge to evaluate the
proffered [Adjutant] evidence's probative value and admit so
much of that evidence as is noncumulative and relevant to the
defendant's self-defense claim," Adjutant, supra at 663. The
judge's discretion "to exclude marginally relevant or grossly
prejudicial evidence" is important, as it "prevent[s] the undue
exploration of collateral issues." See id. Moreover, it is
incumbent on the trial judge to use adequate jury instructions
to further mitigate prejudice and confusion "by delineating the
precise purpose for which the [Adjutant] evidence is offered."
Id. at 664.
a. Adjutant evidence in this case. In light of the
foregoing principles, we turn to the specifics of this case.
The Adjutant evidence in this case included testimony by police
officers regarding multiple instances in which the victim
started a fight at a restaurant or bar, ultimately resulting in
him fighting with police officers. During testimony of two of
the officers, after defense counsel elicited testimony about how
the violent incidents began, the prosecutor objected to further
questions about how the confrontation continued.
16
Specifically, after the prosecutor's initial objections
during the first officer's testimony, the parties had the
following conversation at sidebar:
The judge: "It seems to me you have established that was
the first occasion with violence with this individual, that
he kicked him. Anything further I don't see as --"
Defense counsel: "There's, I guess, what's the relevancy
of anything once you have established that he was a violent
individual who kicked out and specific acts of violence,
that he kicked -- this person approached him, he kicked at
him or someone -- at him."
The judge: "But --"
Defense counsel: "Well, the relevancy is that [the victim]
is not an individual who stops, it takes a lot to subdue
him. I think that's important."
The judge: "That's not Adjutant, that's --"
The prosecutor: "It's well beyond the scope, I would say,
Judge."
The judge: "Prior conduct showing a propensity, that's not
Adjutant. Adjutant you get to show that someone was the
first to act in a violent manner toward someone else. You
have done that. What they did afterwards, I don't think
it's beyond -- that is creating trials within trials. It's
polluting the trial."
After defense counsel elicited from the second police
officer that the victim started another physical fight, the
prosecutor objected, and the following exchange occurred at
sidebar:
The judge: "What do you anticipate the response to be?"
Defense counsel: "I think the response is going to be that
he wrestled with him, then he had ta[s]ed him a couple of
times to stop him from kicking. That's important."
17
The prosecutor: "Again, Judge, same objection as
previously, this doesn't go to Adjutant at this point."
The judge: "I'll sustain the objection."
The defendant contends that the officers should have been
allowed to continue their testimony and explain the full scope
of each violent incident initiated by the victim. Based on
police reports about these incidents, the defendant contends
that the first officer would have explained that the victim's
violence did not stop after the victim was handcuffed. Rather,
it continued while he was being transported to the police
station, and persisted even after he arrived at the police
station. The defendant explains that the second officer would
have testified that the victim's violence was so severe that the
officer needed to tase the victim multiple times in order to
subdue him. The defendant argues that this testimony concerning
the entirety of the violent incidents was admissible and
consistent with the purposes of Adjutant because it demonstrated
the victim's propensity for violence and, specifically, that the
victim was prone to initiate violence and that, when he did so,
he was unrelenting and would inevitably continue even when
presented with lawful opposition. The defendant contends that,
in ruling this evidence inadmissible, the judge's statements
demonstrate that she believed Adjutant evidence was strictly
limited to evidence of the victim initiating violence, rather
18
than the whole violent incident. By contrast, the Commonwealth
argues that the judge merely exercised her discretion under
Adjutant to exclude the remainder of the evidence after
considering its probative value and prejudicial effect.
We take this opportunity to emphasize that Adjutant
evidence is not strictly limited to testimony that the victim
initiated a violent incident or started a fight. In cases
involving a claim of self-defense, where the identity of the
first aggressor is in dispute, trial judges have discretion to
admit in evidence "specific incidents of violence," Adjutant,
443 Mass. at 650, or put another way, "specific acts of prior
violent conduct," Morales, 464 Mass. at 307, that the victim is
reasonably alleged to have initiated. See, e.g., Deconinck, 480
Mass. at 263-264; Chambers, 465 Mass. at 529-531; Adjutant,
supra at 650, 664. While we have referred to both prior "acts"
and "specific incidents" to describe this evidence, our case law
has always maintained that the focus is on the victim's prior
violent behavior. See, e.g., Adjutant, supra at 650 ("we are
persuaded that evidence of a victim's prior violent conduct may
be probative of whether the victim was the first aggressor").
Nothing in our jurisprudence has limited this evidence to only
the victim's initial act. Such a limitation would be contrary
to the primary purpose of Adjutant evidence: providing the jury
with a "full picture" including propensity evidence, so that the
19
jury may "make an informed decision about the identity of the
initial aggressor." Deconinck, supra at 263, quoting Pring-
Wilson, 448 Mass. at 737. See Adjutant, supra at 658-659.
Where a defendant seeks to introduce Adjutant evidence of a
victim's violent conduct, the conduct must involve instances
where the victim initiated the violence. If that condition is
satisfied, the entirety of the violent event or incident
initiated by the victim is potentially admissible.
The admission of Adjutant evidence is subject to the
careful discretion of the trial judge, who "must carefully
examine the particular circumstances of the case, and weigh the
probative value of such evidence against its prejudicial
effect." Morales, 464 Mass. at 312 n.16. And in the exercise
of that discretion, a judge may reasonably exclude evidence
regarding entire instances of victim-initiated violence, or
alternatively limit the extent that a witness could testify
about a particular violent incident initiated by a victim.
We now turn to the judge's exclusion of the evidence at
issue in this case. "We do not disturb a judge's decision to
admit [or exclude] evidence absent an abuse of discretion or
other legal error." Zucco v. Kane, 439 Mass. 503, 507 (2003).
A judge abuses his or her discretion where the judge made "a
clear error of judgment in weighing the facts relevant to the
decision, . . . such that the decision falls outside the range
20
of reasonable alternatives." Deconinck, 480 Mass. at 264,
quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). A
judge's failure to recognize that he or she has discretion is
necessarily an error of law. See Guilfoyle, 396 Mass. at 1004("if a judge admits a record on the mistaken belief that he has
no discretion to exclude it, he has committed an error of law in
failing to recognize that he had discretion"). See also, e.g.,
Commonwealth v. Harris, 443 Mass. 714, 728-729 (2005) ("The
judge below thus erred in declining to exercise any discretion
. . . . That the exercise of discretion could, had it been
undertaken, permissibly have resulted in the same decision to
exclude the [evidence] does not necessarily insulate the error
from reversal"); Commonwealth v. Knight, 392 Mass. 192, 194
(1984) ("[I]t is the duty of the judge to exercise [discretion],
and it is error as a matter of law to refuse to exercise it"
[citation omitted]); Commonwealth v. Fredette, 56 Mass. App. Ct.
253, 259 n.10 (2002) ("Failure to exercise discretion is itself
an abuse of discretion").
But reversal is warranted only where the requisite
prejudice to the aggrieved party is present.6 The amount of
6 The defendant contends that reversal is required in this
case based on our statement in Adjutant that "[w]here the record
shows that the judge has failed to exercise discretion, there
exists an error of law requiring reversal" (citation omitted).
Adjutant, 443 Mass. at 666. This statement from Adjutant has
been stated both directly and with slight variation in several
21
prejudice required to warrant reversal ultimately depends on
whether the aggrieved party objected to the judge's evidentiary
ruling. Where a party has objected to the judge's ruling, we
apply the prejudicial error standard. "This means that we
inquire[] whether there is a reasonable possibility that the
error might have contributed to the jury's verdict" (quotation
and citation omitted). Commonwealth v. Wolfe, 478 Mass. 142,
150 (2017). "An error is not prejudicial if it did not
influence the jury, or had but very slight effect" (quotation
and citation omitted). Id. However, where a party has not
objected, we must determine whether the error resulted in a
substantial risk of a miscarriage of justice. See, e.g.,
Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). A
substantial risk of a miscarriage of justice occurs when we have
a "serious doubt whether the result of the trial might have been
prior cases. See, e.g., Commonwealth v. Boyer, 400 Mass. 52, 57
(1987). We now acknowledge that the portion of the sentence
indicating that reversal is required was a misstatement of law.
There are only a small number of instances where an error
at trial, in and of itself, requires reversal even without a
showing of prejudice. See, e.g., Commonwealth v. Oberle, 476
Mass. 539, 545 (2017) ("An erroneous denial of a peremptory
challenge is a structural error, requiring reversal without a
showing of prejudice"). Evidentiary rulings involving Adjutant
evidence do not fall into that narrow category. Rather,
"[w]here the record shows that the judge has failed to exercise
discretion, there exists an error of law requiring" a
determination whether the prejudice created by the error, as
dictated by the applicable standard of review, warrants
reversal. See Adjutant, supra.22
different had the error not been made" (citation omitted).
Commonwealth v. Valentin, 470 Mass. 186, 189 (2014).
Although admittedly a close call, we agree with the
defendant that the trial judge failed to recognize the scope of
admissible Adjutant evidence and that her ruling was an error of
law. Specifically, the judge's statement that "[p]rior conduct
showing [the victim's] propensity" is not Adjutant evidence is
inconsistent with our Adjutant jurisprudence. Adjutant evidence
is by definition propensity evidence, although propensity
evidence admitted in limited circumstances, in a specific form,
and for a limited purpose. See, e.g., Commonwealth v. Camacho,
472 Mass. 587, 593 (2015); Chambers, 465 Mass. at 529-530;
Adjutant, 443 Mass. at 660. Moreover, the judge's statement
intimating that evidence of what a victim did after initiating
violence was beyond the scope of Adjutant demonstrates a belief
that Adjutant evidence is strictly limited to evidence that a
victim initiated violence, as opposed to evidence of the over-
all violent occurrence. Therefore, based on the judge's
statements, we conclude that the judge mistakenly believed she
did not have discretion to allow evidence regarding the entirety
of the violent incidents initiated by the victim. As such, her
failure to recognize her discretion necessarily constitutes
23
error.7 See, e.g., Knight, 392 Mass. at 194. Because the judge
erred in sustaining the Commonwealth's objection over defense
counsel's protests, we apply the prejudicial error standard and
must determine whether failing to admit evidence regarding the
entirety of these two violent events "did not influence the
jury, or had but very slight effect" (citation omitted).
Commonwealth v. Bregoli, 431 Mass. 265, 273 (2000). See
Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 (2015). We
conclude that the error was not prejudicial.
"[W]e do not speculate as to what the judge would have done
had she recognized her discretion," Adjutant, 443 Mass. at 666,
but ultimately we discern no prejudice from the exclusion of the
additional testimony in light of the evidence that was admitted
in support of the defendant's theory of self-defense. Pursuant
to Adjutant, evidence of these three separate violent acts by
the victim were admitted, all of which showed the victim
initiating physical violence and ultimately fighting with police
officers. Specifically, one officer testified that while the
officer was working a paid detail at a bar in Fall River, the
victim started a fight in an elevator and ultimately fought with
both bouncers and the officer himself before the officer was
7 We emphasize, however, that the judge has wide discretion
as to what, if any, part of the specific instance of conduct
should be admitted on the issue of who was the first to initiate
violence or who was the first to threaten or use deadly force.
24
able to place the victim under arrest. The officer told the
jury that he needed the bouncers' help to arrest the victim
because the victim would not stop fighting. A second officer
testified about how on a different occasion, at a different bar,
three officers intervened in a fight involving the victim. The
officer described how when he told the victim to stop fighting,
the victim not only did not stop fighting, but also responded by
kicking the officer. Finally, a third officer testified about
another incident at a bar. That officer explained that the
victim got involved in yet another fight at a bar and the police
officer went to escort the victim out of the bar. Rather than
leave the bar, the victim "ripped his arm away from [the
officer]." The victim then shoved the officer, and "a physical
altercation between [the victim and the officer] ensued."
Moreover, the defendant testified that the victim had a
reputation as a fighter. While not Adjutant evidence, this
evidence was admitted as to the state of mind induced in the
recipient of this knowledge -- the defendant. See, e.g.,
Fontes, 396 Mass. at 735 ("A defendant may present evidence of
the victim's reputation as a violent or quarrelsome person and
of his own knowledge of that reputation . . ."). See also
Adjutant, 443 Mass. at 654 (victim's reputation as violent
person and instances of victim's prior acts of violence are
admissible "if known to the defendant, as it bears on the
25
defendant's state of mind and the reasonableness of his action
in claiming to have acted in self-defense"). The jury also
heard evidence about the repeated and quite explicit threats
that the victim sent to the defendant, including that the victim
"wanted to kick [the defendant's] ass," that the victim "was
going to break [the defendant's] neck," that the victim "wanted
[to] bust [the defendant's] head," and that the victim was going
to "videotape [himself beating the defendant] and put it on
YouTube." See, e.g., Edmonds, 365 Mass. at 499-500, quoting
Commonwealth v. Rubin, 318 Mass. 587, 588-590 (1945) ("Where
self defence is invoked by a defendant, threats of violence made
against him by the person hurt or killed by him are generally
admissible, when known to the defendant before the act, as
evidence of his apprehension for his own safety, and the
reasonableness of that apprehension"). We also referenced in
Adjutant this type of nonhearsay, nonpropensity evidence as it
relates to the state of mind of the recipient of the
information. See Adjutant, supra at 654.
The evidence connecting the victim with violence and the
defendant's knowledge of the victim's reputation for violence
and his threats to the defendant went largely undisputed. Based
upon the Adjutant evidence, and the evidence of the defendant's
knowledge of the victim's reputation for violence and his
previous threats to the defendant, it is doubtful that
26
additional testimony from the officers about the victim's
continued violence would have added much to the already
significant evidence of the victim's violence. See, e.g.,
Commonwealth v. Smith, 460 Mass. 385, 398 (2011); Commonwealth
v. Cyr, 433 Mass. 617, 625 (2001). We therefore discern no
prejudice flowing from the judge's error.
b. Adjutant instructions. Proper limiting instructions
are an integral part of a jury trial, and a judge's role in
crafting those instructions is critical. Bad act or propensity
evidence has a particular danger of creating undue prejudice,
and in instances where such evidence is admitted, specificity
and precision in the jury instructions both at the time the
evidence is admitted and in final instructions is key. See,
e.g., Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023) ("We
take this opportunity to emphasize the importance of specificity
and precision in the context of ruling on bad act evidence").
While limiting instructions are essential when bad act evidence
is admitted for a nonpropensity purpose, clear and precise jury
instructions are perhaps of at least comparable importance when
Adjutant evidence is admitted because it is one of the few
instances where we allow the jury to make propensity inferences.
As relevant to the defendant's claims, the judge gave the
following instruction at trial:
27
"For purposes of determining who attacked whom first in the
altercation, you may consider evidence of the deceased's
prior past violent conduct, whether or not the defendant
knew of it. You cannot consider such evidence for any
other purposes whatsoever."
Although there were slight variations to her instructions
during the trial, the judge gave substantially similar
instructions each time Adjutant evidence was admitted and during
the final charge.8 While the defendant did not object to the
instructions at trial, he now makes two challenges on appeal.
He contends first that because the case was tried after
8 As relevant to Adjutant evidence, the Model Jury
Instructions on Homicide in effect at the time of trial
provided: "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." Chambers, 465 Mass. at 528 n.8, quoting Model Jury
Instructions on Homicide 28-29 & n.68 (2013).
Subsequently, the Model Jury Instructions on Homicide were
amended in 2018. While the language quoted above remains the
same, see Model Jury Instructions on Homicide 34 & n.82 (2018),
the amended instructions have an additional instruction, which
cites to Chambers, 465 Mass. at 528, and states:
"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."
Model Jury Instructions on Homicide 34 & n.81 (2018). Judges
are encouraged "[i]n appropriate cases, [to] add [that]
instruction" before giving the Adjutant instruction retained
from the 2013 model instructions. See id. at 34. Compare Model
Jury Instructions on Homicide 28-29 & n.68 (2013) with Model
Jury Instructions on Homicide 34 & nn.81-82 (2018).
28
Chambers, the judge erred by not specifically instructing the
jury that the victim's prior violence also could be considered
to determine who escalated the confrontation by the threat or
use of deadly force. Second, he contends that under Chambers,
Adjutant evidence can be considered expansively to determine
whether the Commonwealth disproved self-defense generally, and
as such the judge's final sentence explicitly limiting the
Adjutant evidence to the issue of who attacked whom first was
also error. The defendant argues that these errors individually
and collectively created a substantial risk of a miscarriage of
justice warranting a new trial. We address each argument in
turn.
i. Failure to expand the definition of first aggressor.
"[A] trial judge is not constrained to use any particular
language in his [or her] instructions; rather he [or she] is
required only to provide a full and accurate explanation of the
governing law applicable to a particular case." Commonwealth v.
Berrio, 43 Mass. App. Ct. 836, 838 (1997). Additionally, "[a]
judge is not required to instruct on a hypothesis that is not
supported by the evidence." Commonwealth v. Gallett, 481 Mass.
662, 680 (2019), quoting Commonwealth v. Gould, 413 Mass. 707,
715 (1992).
The defendant contends that because Chambers expanded the
definition of first aggressor, he was entitled to a jury
29
instruction that explained that Adjutant evidence could be
considered to determine both who started the fight and who
escalated the fight by the threat or use of deadly force. As a
general proposition, we agree with the defendant that, because
Adjutant evidence is admissible to determine not only who
initiated the fight but also who escalated it to one involving
deadly force, the jury should, when both issues are raised at
trial, be instructed accordingly. However, just as the disputed
issues at trial ultimately determine whether Adjutant evidence
is admissible, the disputed issues at trial necessarily
determine the appropriate jury instruction.
A prerequisite to the admissibility of Adjutant evidence is
that the identity of either the first to initiate violence or
the first to escalate the conflict through the threat or use of
deadly force be in dispute. See, e.g., Camacho, 472 Mass. at
593. Where neither issue is in dispute, Adjutant evidence is
not admissible. Id. at 594 (no error in excluding Adjutant
evidence where "the primary question for the jury was not who
began the altercation or escalated it to deadly force, but
rather whether the defendant was legally entitled to use the
force that he did in defense of another"). Where only one of
those issues is in dispute, Adjutant evidence is admissible in
order for the jury to determine that one issue. See id. at 593-
594. And where both issues are in dispute, Adjutant evidence is
30
admissible in order for the jury to determine both issues. See
id. Therefore, the instruction to which the defendant contends
he was entitled is only required where the evidence demonstrates
a dispute as to who "initiated the use or threat of deadly
force." See, e.g., Chambers, 465 Mass. at 529-530. See also
Gallett, 481 Mass. at 680. Cf. Camacho, supra.Here, the defendant's position at trial was that the victim
was killed in lawful self-defense. Like many of our cases where
Adjutant evidence was admissible, there was inconsistent
testimony about how the fatal fight began. Cf. Pring-Wilson,
448 Mass. at 723-724 (defendant's version of fight "differed
markedly" from that of witnesses). Specifically, there was
conflicting evidence about how the fight began, how it
progressed, and even how many people were involved in it.
Crucially, however, it was undisputed that during what was
essentially a fist fight, the defendant had a firearm, produced
said firearm, and fired it. Given the largely undisputed
evidence on that point, including the defendant's admission to
firing a "warning shot" after he was hit, there was no question
that the defendant was the first to introduce deadly force. See
Commonwealth v. Klein, 372 Mass. 823, 827 (1977) ("[D]eadly
force [is defined] as force intended or likely to cause death or
great bodily harm. . . . Clearly the defendant in this case
used deadly force in firing shots from a handgun"). Thus, the
31
key questions for the jury were who started the confrontation
and whether the defendant was legally entitled to use the force
that he did. Cf. Camacho, 472 Mass. at 594-596. The identity
of the person who escalated the conflict to one involving deadly
force was not in dispute. Therefore, the defendant was not
entitled to an instruction informing the jury that the Adjutant
evidence could be considered to determine who threatened deadly
force or escalated the conflict to one involving deadly force.
As such, there was no error.
While there was no error in this case, and the current
Model Jury Instructions on Homicide appropriately cite to both
Adjutant, 443 Mass. at 664, and Chambers, 465 Mass. at 528, see
Model Jury Instruction on Homicide, 33-34 & nn. 81-82 (2018), we
take this opportunity, in the Appendix to this opinion, to
revise the current instruction in order to more concisely and
understandably explain how the jury may consider Adjutant
evidence. Henceforth, where the identity of the person who
first threatened or used deadly force is at issue, a judge's
instruction should inform the jury that the victim's prior acts
of violence may also be considered in order to make that
determination. See Deconinck, 480 Mass. at 263-264. Where the
identity of the person who started the fight and the identity of
the person who escalated the fight are in dispute, a judge's
instruction should explicitly inform the jury that the victim's
32
prior acts of violence may be considered for both purposes. See
id.ii. Final limiting sentence. The defendant next contends
that the final sentence of the judge's charge instructing the
jury that they could only consider the Adjutant evidence to
determine who attacked whom first was error. He argues that
pursuant to Chambers, 465 Mass. at 529, Adjutant evidence is
broadly admissible so that the jury may determine whether the
Commonwealth proved the defendant did not act in self-defense as
a general matter. We disagree and conclude that such an
instruction excluding from the jury's consideration the use of
the Adjutant evidence more broadly so as to determine whether
the Commonwealth had proved lack of self-defense was not error.
As explained in detail supra, we clarified in Chambers, 465
Mass. at 528-530, that the term "first aggressor" is not limited
to the person who provoked or initiated the confrontation but
includes the person who escalated a confrontation from one
involving nondeadly force to one involving deadly force. See
Deconinck, 480 Mass. at 263. While conducting our analysis in
Chambers, after explaining the origins and purpose of the rule
from Adjutant, but before clarifying the term "first aggressor,"
we made the following statements:
"It is important to note that, although Adjutant evidence
may assist a jury to determine whether the defendant has
lost the right of self-defense, it is not limited to this
33
purpose. In the Adjutant case, as in this case, the jury
were not instructed that a first aggressor loses the right
to claim self-defense, so we reasonably may infer that the
contested evidence was not admitted for the purpose of
addressing that issue. Rather, it was admitted for the
broader purpose of giving the jury relevant information
regarding the victim's prior acts of violence that may help
them to evaluate the conflicting evidence, to arrive at the
truth regarding the events that led to the victim's death,
and ultimately to determine whether the prosecution has met
its burden of proving that the defendant did not act in
self-defense."
Chambers, supra at 529.
The defendant contends that this language was a
pronouncement by this court expanding the permissible use of
Adjutant evidence, such that it may be broadly considered "to
determine the overall question of whether the Commonwealth
proved that the defendant did not act in proper self-defense."
This argument takes the quoted language out of context. This
language is part of a broader discussion explaining the law of
self-defense and its intersection with Adjutant evidence before
clarifying and expanding our understanding of the term "first
aggressor." See Chambers, 465 Mass. at 528-530. And while we
have repeatedly emphasized that the purpose of our decision in
Chambers was to expand or clarify the definition of first
aggressor, see, e.g., Deconinck, 480 Mass. at 263; Camacho, 472
Mass. at 593, we acknowledge that the language upon which the
defendant relies has potential to create confusion. Therefore,
we take this opportunity to explicitly articulate the limited
34
purposes for which Adjutant evidence may be considered within
the broader context of self-defense.
Adjutant evidence is not broadly admissible to determine
whether the Commonwealth has disproved self-defense. As we
explained in our original Adjutant decision, and have
consistently reiterated in subsequent cases, Adjutant evidence
is admissible for the "limited purpose of supporting the
defendant's self-defense claim that the victim was the first
aggressor" (emphasis added). Adjutant, 443 Mass. at 660.
Adjutant evidence is exclusively admissible to help the jury
identify who initiated the conflict and who was the first person
to use deadly force when relevant to the issue of self-defense.
See Chambers, 465 Mass. at 530 ("the resolution of [who
initiated the violence or escalated the conflict by the use or
threat of deadly force] may assist the jury in deciding whether
the prosecution has met its burden of proving that the defendant
did not act in self-defense"). Cf. Camacho, 472 Mass. at 594("Neither the identity of the person who threw the bottle nor
the identity of the person who fired shots is in dispute, and
the limited sweep of Adjutant and Chambers does not authorize
the introduction of evidence to shed light on any other
question").
Limiting the scope of Adjutant evidence is consistent with
our recognition that when the "first aggressor," as defined by
35
Adjutant, 443 Mass. at 649-650, 664, and Chambers, 465 Mass. at
528-530, is disputed, evidence about the victim's prior violent
conduct is considered relevant and probative to determining who
the first aggressor was. Comacho, 472 Mass. at 591-592.
Moreover, this limitation on Adjutant evidence strikes the
requisite balance between the primary purpose of allowing
Adjutant evidence -- "to give the jury a full picture of the
altercation so as to make an informed decision about the
identity of the first aggressor," Deconinck, 480 Mass. at 263,
quoting Pring-Wilson, 448 Mass. at 737 -- and our general
distrust of propensity evidence, Adjutant, supra at 661-662. As
such, we discern no error in the judge instructing the jury in
this case that they were not permitted to consider the victim's
prior bad acts for any purpose other than determining who
attacked whom first.
2. Prosecutor's closing argument. The defendant next
claims that the prosecutor misstated evidence in his closing
argument. He specifically takes issue with the prosecutor's
first few sentences: "'Tell Kyle Brady I've got something for
him. Tell Kyle Brady I've got something for him.' Those are
the words that this defendant used outside of [the bar] when he
was talking to [Emond]."
"Although 'counsel may argue the evidence and the fair
inferences which can be drawn from the evidence,' . . . 'a
36
prosecutor should not . . . misstate the evidence of refer to
facts not in evidence.'" Kapaia, 490 Mass. at 804, quoting
Commonwealth v. Cheng Sun, 490 Mass. 196, 221 (2022). "Such
arguments are improper." Kapaia, supra. Because there was no
objection lodged at trial, we review to determine whether any
error created a substantial risk of a miscarriage of justice.
See Commonwealth v. Carroll, 439 Mass. 547, 554 (2003).
The defendant's statement was that "he had something for
Kyle Brady," not "Tell Kyle Brady I've got something for him."
As such, the prosecutor's statement to some extent misstated the
evidence. "Because the prosecutor's statement was improper, 'we
are guided by the following factors when deciding whether' the
error created a substantial [risk] of a miscarriage of justice:
'[(1)] whether defense counsel seasonably objected to the
arguments at trial . . . [(2)] whether the judge's instructions
mitigated the error . . . [(3)] whether the errors in the
arguments went to the heart of the issues at trial or concerned
collateral matters . . . [(4)] whether the jury would be able to
sort out the excessive claims made by the prosecutor . . . and
[(5)] whether the Commonwealth's case was so overwhelming that
the errors did not prejudice the defendant.'" Kapaia, 490 Mass.
at 804 & n.13, quoting Commonwealth v. Teixeira, 486 Mass. 617,
635 (2021). No one factor is dispositive, and our ultimate
focus is whether we have a serious doubt that the result of the
37
trial might have been different had the statement not been made.
Kapaia, supra at 804 n.13. See Commonwealth v. Dirgo, 474 Mass.
1012, 1016-1017 (2016).
Although the statement was technically inaccurate, we
discern no substantial risk of a miscarriage of justice. The
prosecutor's statement was a minor deviation from what the
defendant actually said. It occupied only two lines of an
approximately fifteen-page closing argument. See Kapaia, 490
Mass. at 804-805. Moreover, the judge properly "instructed the
jury that closing arguments are not evidence and that, to the
extent an attorney's statement conflicts with their memory, it
is the jury's memory that controls." Id. at 805. See
Commonwealth v. Salazar, 481 Mass. 105, 118 (2018) (where judge
properly instructed jury that closing arguments were not
evidence, brief isolated statement was "not egregious enough to
infect the whole of the trial"). "Furthermore, '[w]e ascribe a
certain level of sophistication to the jury, and, [on this
record], have little doubt that they would not have been swayed
by this [misstatement].'" Kapaia, supra, quoting Commonwealth
v. Wilkerson, 486 Mass. 159, 181 (2020).
3. Ineffective assistance of counsel. In his motion for a
new trial, the defendant argued that trial counsel was
ineffective in failing to present additional easily obtainable
evidence about the victim's reputation for violence and
38
additional instances of prior violence initiated by the victim.
He maintains this argument on appeal.
Where, as here, the defendant claims that trial counsel was
ineffective, "we ask whether counsel's performance fell
'measurably below that which might be expected from an
ordinarily fallible lawyer,' and 'likely deprived the defendant
of an otherwise available, substantial ground of defence.'"
Commonwealth v. Henry, 488 Mass. 484, 497 (2021), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "The burden
of proving entitlement to a new trial based on ineffective
assistance of counsel rests on the defendant." Commonwealth v.
Watson, 455 Mass. 246, 256 (2009). "A defendant must show that
better work might have accomplished something material for the
defense." Id. "A strategic or tactical decision by counsel
will not be considered ineffective assistance unless the
decision was manifestly unreasonable when made" (quotation and
citation omitted). Id. Only decisions that a lawyer of
ordinary training and skill in criminal law would not consider
competent are manifestly unreasonable. Commonwealth v.
Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189(2017).
Here, trial counsel's strategy in support of the victim's
self-defense claim involved showing the jury that the victim was
a "violent person with a history of getting into fights." This
39
focus on the victim's violence was present in both trial
counsel's opening statement and closing argument. And the
argument that the victim was a ferocious and violent person was
supported by the evidence. During the defendant's case-in-
chief, three police officers testified about three separate
violent fights initiated by the victim, and the defendant
himself testified about both the victim's reputation as a
fighter and the threatening messages that the victim had been
sending him in the months preceding the conflict.
In essence, the defendant's claim of ineffective assistance
of counsel is that trial counsel was ineffective by failing to
present even more evidence about the victim's violence.
Although some of evidence that the defendant contends should
have been presented involved different violent acts by the
victim, there already was powerful Adjutant evidence and
evidence regarding the defendant's knowledge of the victim's
reputation for violence that was properly admitted to support
the defendant's theory of self-defense. The evidence that the
defendant contends should have been offered would have been
admitted for the same purpose and to support the same theory of
the case, thereby rendering it cumulative.9 And "[t]he failure
9 By stating that the evidence was cumulative, we express no
view on how the trial judge might have exercised her discretion
to "exclude relevant evidence if its probative value is
substantially outweighed by a danger of," inter alia,
40
to offer cumulative evidence is not ineffective assistance of
counsel." Commonwealth v. Drew, 447 Mass. 635, 650 (2006),
cert. denied, 550 U.S. 943 (2007). See Commonwealth v. Britt,
465 Mass. 87, 94 (2013) ("The decision not to raise cumulative
evidence merely for quantity's sake does not constitute
ineffective assistance of counsel"). Therefore, trial counsel
was not ineffective for failing to offer this additional
evidence.
4. Firearm convictions. Finally, the defendant challenges
his conviction of carrying a firearm without a license and
carrying a loaded firearm without a license based on the absence
of a jury instruction requiring the Commonwealth to prove that
the defendant did not have a valid license to possess a firearm.
Recently, in Guardado, 491 Mass. at 690, 693, we held that "to
convict a defendant of unlawful possession of a firearm, the
Commonwealth must prove as an element of the crime charged that
the defendant in fact failed to comply with the licensure
requirements for possessing a firearm" (quotation and citation
omitted). Id. at 690. Our decision was based on the United
States Supreme Court's recognition, in New York State Rifle &
Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022) (Bruen),
that the Second Amendment to the United States Constitution
"needlessly presenting cumulative evidence" if the evidence had
been offered. Mass. G. Evid. § 403.
41
protects an individual's right to carry a firearm outside the
home. For that reason, our precedent predicated on a narrower
view of the rights secured by the Second Amendment, see
Commonwealth v. Gouse, 461 Mass. 787, 807 (2012), no longer was
valid. Guardado, supra at 689-690. The Guardado holding
applied prospectively and to those cases, like this one, that
were active or pending on direct review as of the date of the
issuance of Bruen.
Without the benefit of the Supreme Court's holding in
Bruen, or of our ruling in Guardado, the judge did not instruct
the jury that the Commonwealth was required to prove an absence
of a valid license, and the defendant did not object to the
instructions. When the issue appealed is not preserved, we
usually grant relief only if the error created a substantial
risk of a miscarriage of justice. In Guardado, however, we
applied the "clairvoyance exception" to excuse the failure to
object to the absence of a jury instruction on licensure because
"the constitutional theory on which the defendant . . . relied
was not sufficiently developed at the time of trial . . . to
afford the defendant a genuine opportunity to raise his claim."
Guardado, 491 Mass. at 686, quoting Commonwealth v.
Rembiszewski, 391 Mass. 123, 126 (1984). Here, similarly, the
defendant did not have an "an adequate opportunity at the time
of his trial to raise the present issue." Guardado, supra.
42
Because the clairvoyance exception applies, "[t]he remaining
question is whether the error was harmless beyond a reasonable
doubt." Commonwealth v. D'Agostino, 421 Mass. 281, 286-287
(1995).
Here, as the Commonwealth concedes, no evidence was
admitted at trial that would suggest the defendant did not have
a license to carry a firearm. As such, we cannot say that the
judge's failure to instruct was harmless beyond a reasonable
doubt and therefore vacate the defendant's convictions of
carrying a firearm without a license and carrying a loaded
firearm without a license.10
Conclusion. For the reasons set forth supra, we affirm the
defendant's convictions of murder in the second degree and
assault and battery by discharge of a firearm and the orders
denying his motions for a new trial and for reconsideration.
However, we vacate the convictions of carrying a firearm without
a license and carrying a loaded firearm without a license and
remand for further proceedings consistent with this opinion.
So ordered.
10The issue whether retrial shall be permitted is currently
pending before the court and is scheduled for oral argument in
September 2023. See Commonwealth vs. Guardado, No. SJC-13315.
The rescript in this opinion shall be stayed pending our
decision in that case.
Appendix.
Model Jury Instruction -- Adjutant evidence.
For the purpose of determining who attacked whom first in
the altercation [or who escalated the potential for violence
through the use or threat of deadly force], 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. You may not consider such evidence for
any other purpose.