Commonwealth v. Fantauzzi

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15-P-574 Appeals Court
COMMONWEALTH vs. MIGUEL FANTAUZZI.
No. 15-P-574.
Suffolk. October 4, 2016. - March 21, 2017.
Present: Kafker, C.J., Trainor, & Henry, JJ.
Homicide. Self-Defense. Felony-Murder Rule. Firearms.
Practice, Criminal, Instructions to jury.
Indictments found and returned in the Superior Court
Department on March 25, 2013.
The cases were tried before Christine M. Roach, J.
Katherine C. Riley for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
KAFKER, C.J. The defendant, Miguel Fantauzzi, was
convicted by a jury of voluntary manslaughter on an indictment
that charged murder in the second degree.1 On appeal, he claims
1
The defendant was also convicted of possession of a
firearm without a license. See G. L. c. 269, § 10(a). He does
not challenge that conviction on appeal. He was found not
2
that the trial judge's jury instructions regarding the
relationship of self-defense to felony-murder and voluntary
manslaughter were erroneous and that the Commonwealth's closing
argument contained improper statements. We agree that the
instructions in this particularly complicated case, where the
underlying felony did not mark the defendant as either the
aggressor or initiator of the violence, were incorrect, and
therefore we reverse the conviction of voluntary manslaughter.
Background. The jury were warranted in finding the
following facts. On October 27, 2012, the victim, Christopher
Powell, made plans with the defendant via text message to
purchase drugs from the defendant. At 6:29 P.M., the defendant
called the victim's cellular telephone (cell phone) and talked
with him for a little over a minute. Shortly thereafter, the
defendant entered the rear passenger seat of the victim's sport
utility vehicle (SUV), which was parked on the street near 50
Clark Avenue in Chelsea. The victim sat in the driver's seat,
and his friend, Robert Dobay, sat in the front passenger seat.
After the defendant entered the SUV, the drug deal went
awry. The defendant, who had brought a loaded firearm to the
meeting, fired two shots inside the SUV. The defendant got out
of the SUV, which began rolling until it hit the vehicle in
guilty of armed assault with the intent to murder and assault
and battery by means of a dangerous weapon.
3
front of it. The defendant then fired two more shots at the
SUV, one of which shattered the back passenger side window and
the other of which went through the front passenger door,
grazing Dobay's leg. Dobay testified that after the shots were
fired, he jumped out of the SUV and began running down Clark
Avenue. As Dobay ran, he looked back and saw the defendant run
to the SUV. Dobay continued to run, screaming for help, and the
defendant began to run in the same direction. The defendant
eventually arrived at the apartment where the mother of his son
lived.
Residents of an apartment building near 50 Clark Avenue
testified that they heard gunshots on the night of the incident
and went outside to the SUV, where they found the victim slumped
over the steering wheel, bleeding profusely. The victim died
from a large gunshot wound to his left chest. He also suffered
two gunshot wounds to his scrotum and multiple gunshot wounds to
his arms and legs.
Police officers responding to the incident found a black
stun gun on the floor beneath the SUV's steering wheel, an
unsheathed knife between the driver's seat and the door frame, a
digital scale on top of the vehicle's center console, and the
victim's cell phone. Responding officers also recovered two
discharged cartridge casings inside the SUV, one in the rear
passenger's seat and the other toward the middle of the back
4
seat, as well as four discharged casings in the street near the
SUV. Two spent projectiles were recovered from the victim's
body.
Defense. The defendant testified at trial as follows. On
the day of the incident, the defendant had agreed to sell the
victim ten grams of heroin, and told the victim, via text
message, to meet him at 50 Clark Avenue. Prior to meeting the
victim, the defendant armed himself with a gun, because it was
getting dark, and he had been robbed twice before at night in
Chelsea. When he arrived at 50 Clark Avenue that night, the
defendant called the victim and asked the victim to meet him by
the stairs. Instead, the victim asked the defendant to meet him
in his SUV, which was parked on Clark Avenue. After getting
into the victim's SUV, the defendant handed the drugs to the
victim, who placed them on an electronic scale sitting atop the
SUV's center console. The man in the front passenger seat then
reached around the seat, held a knife to the defendant's throat,
and said, "[G]ive me everything you got or I'll stab you."
The defendant went to reach for the passenger side door,
but when he tried to open it, the victim grabbed the defendant's
jacket with his right hand and pulled him back into the SUV.
With his left hand, the victim reached toward the defendant with
a powered-on stun gun. The front passenger reiterated, "Give me
everything you got or I'll fucking stab you." The defendant
5
managed to slap the knife away from the front passenger's hand
before grabbing his own firearm. Without aiming, the defendant
fired two shots inside the SUV. Then, he dove out of the SUV
and fell to the ground. While on the ground, he heard another
door of the SUV open, and he fired two more times toward the
front passenger side of the vehicle. He stood up, fired two
more shots into the air, and began walking quickly down Clark
Avenue.
The defendant eventually arrived at an apartment at 51
Parker Street to look for the mother of his son. At the
apartment, the defendant met Jeffrey Martinez, who saw him
looking panicked and crying. The defendant told Martinez that
someone had tried to rob him. The defendant also introduced
testimony from Detective Kevin Witherspoon, a computer forensic
examiner, regarding text messages sent from the victim's cell
phone the night before the incident stating, "I stuck somebody
up tonight. . . . I robbed somebody for their drugs again."
The defendant testified that after the shooting, he dyed
his hair in order to change his appearance, fled to New York,
and disposed of the gun used in the shooting.
Jury instructions. At trial, the jury were instructed on
two theories of murder: murder in the second degree, and
felony-murder in the second degree. The predicate felony for
felony-murder in the second degree was unlawful possession of a
6
firearm. The jury were also instructed on voluntary
manslaughter and self-defense.
Prior to charging the jury, the judge discussed the wording
of the voluntary manslaughter instruction at length with the
prosecutor and defense counsel. The discussion began with the
judge asking whether the jury must first find the defendant not
guilty under both theories of murder in the second degree before
considering voluntary manslaughter. The prosecutor and defense
counsel both answered yes, but defense counsel qualified his
answer with, "to an extent."2 When it became clear the judge
meant to instruct the jury that voluntary manslaughter was a
lesser included offense of felony-murder in the second degree,
2
The following exchange occurred:
The court: "In order to reach the manslaughter questions,
does not the jury have to find essentially against the
Commonwealth with respect to each of the theories of
murder?"
Prosecutor: "If I'm understanding you correctly, they
would have to find him not guilty for second degree felony-
murder as well as not guilty for sort of standard second
degree murder, and the[n] consider manslaughter."
The court: "Right."
Prosecutor: "I would agree. . . ."
Defense counsel: "I have a different position. My
position is that the manslaughter, the lesser included of
manslaughter would only apply to the general theory of
murder in the second degree. It would not apply to the –-
I'm sorry, I mis-spoke. I would agree with that, Your
Honor, to an extent, yes."
7
defense counsel stated his disagreement. The judge then asked
defense counsel why he would not want a "defense-friendly
charge," and defense counsel did not reiterate his disagreement.3
The judge then told the prosecutor and defense counsel that she
thought "the correct statement of the law . . . is to tell [the
jury] that manslaughter is an option on both theories [of murder
in the second degree], but only if they first find against the
Commonwealth on both theories." Both defense counsel and the
prosecutor agreed this was correct. A few minutes later,
however, the prosecutor clarified that she did not believe
voluntary manslaughter was a lesser included offense of felony-
3
Specifically, the parties responded as follows:
The court: "I say [in the instructions], 'If you find the
defendant not guilty of murder in the second degree on
either theory, you shall consider manslaughter.' And I
thought what we just said it should say is, 'If you find
the defendant not guilty of murder in the second degree on
both theories.'"
Prosecutor: "I would agree."
". . ."
Defense counsel: "I'm going to change my position.
Manslaughter should only be applied as to the general
theory of murder in the second degree, not as to felony-
murder."
The court: "All right, this is what I don't understand
about that position. Isn't manslaughter a defendant-
friendly charge? And why wouldn't you want the option?"
Defense counsel: "Well, I want the option."
8
murder in the second degree.4 Not only did defense counsel
eventually assent to an instruction that voluntary manslaughter
was a lesser included of felony-murder in the second degree, he
also pressed the judge, albeit unsuccessfully, to include a
fourth element in the charge of felony-murder requiring that the
Commonwealth prove the absence of mitigating circumstances, and
he repeatedly stated, "[M]y position [is] that [self-defense is]
an absolute defense to all charges of murder, all theories, and
all lesser included offenses." Self-defense was the essence of
the defense in the instant case.
The judge instructed the jury regarding murder in the
second degree in accordance with the Model Jury Instructions on
Homicide 57-58 (2013) (Model Instructions), including a detailed
explanation of the requirement that the Commonwealth must prove
that the defendant did not act in self-defense: "A person is
not guilty of any crime if 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." The judge also
instructed the jury that the Commonwealth must prove the absence
of mitigating circumstances.5
4
The prosecution repeated this objection thereafter.
5
The instruction included a description of each of the
mitigating circumstances of heat of passion on reasonable
9
The judge also instructed the jury on felony-murder in the
second degree, identifying the underlying felony as the unlawful
possession of a firearm and making clear that the jury must
determine that the felony was committed with a conscious
disregard for the risk to human life.6 See Model Instructions
provocation, heat of passion induced by sudden combat, and the
use of excessive force in self-defense.
6
The felony underlying a charge of felony-murder must be
inherently dangerous or committed with a conscious disregard for
human life. Decisional law has identified certain felonies that
are inherently dangerous as a matter of law, such as arson,
rape, burglary, armed robbery, and armed home invasion. See
e.g., Commonwealth v. Matchett, 386 Mass. 492, 505 n.15 (1982);
Commonwealth v. Wadlington, 467 Mass. 192, 208 (2014). Because
the risk to human life is implicit in the intent required for
any such felony, a jury should be instructed that the felony is
inherently dangerous as a matter of law. See Commonwealth v.
Cook, 419 Mass. 192, 206 (1994); Commonwealth v. Wadlington,
supra. The second category of offenses involve felonies that
are not inherently dangerous in their commission and therefore
require the Commonwealth to prove the defendant committed the
crime with a conscious disregard of the risk to human life. See
Commonwealth v. Matchett, supra at 508; Commonwealth v. Moran,
387 Mass. 644, 650-651 (1982). The underlying felony at issue
in this case, the unlawful possession of a firearm, falls within
the latter category, and the jury were properly instructed that
they must determine whether it was committed with a conscious
disregard of risk for human life. See Commonwealth v. Ortiz,
408 Mass. 463, 466-467 (1990) (jury could have found that where
defendant illegally carried loaded firearm in vehicle, crime was
committed with conscious disregard for risk to human life where
defendant and his brother were looking for individual involved
in feud); Commonwealth v. Garner, 59 Mass. App. Ct. 350, 358
(2003) (smuggling gun into crowded nightclub where shots had
been fired in past constituted evidence of conscious disregard
of risk to human life). The defendant properly does not dispute
that the illegal possession of a firearm may properly constitute
the predicate felony in a charge of felony-murder in the second
degree.
10
56, 58-60. With regard to felony-murder, the judge instructed
the jury that the Commonwealth was "not required to prove the
absence of self-defense to prove felony-murder in the second
degree," and that "[t]herefore, the instruction on self-defense
I have just described . . . does not apply to the Commonwealth's
theory of second degree felony-murder." The judge further
instructed the jury that "if you find the Defendant not guilty
of murder in the second degree and not guilty of second degree
felony-murder, you shall consider whether the Commonwealth has
proved the Defendant guilty beyond a reasonable doubt of the
lesser included offense of voluntary manslaughter."
With regard to manslaughter, the judge stated:
"A killing that would otherwise be murder in the second
degree is reduced to the lesser included offense of
voluntary manslaughter where the Commonwealth has failed to
prove that there were no mitigating circumstances. . . .
In other words, a killing that would otherwise be murder
under either of the two theories of murder described above
is reduced to voluntary manslaughter if the Defendant
killed someone because of heat of passion on reasonable
provocation or heat of passion induced by sudden combat."
At the end of the voluntary manslaughter instruction, the judge
stated:
"I have already told you that to prove the Defendant guilty
of murder in the second degree under its first theory,[7]
the Commonwealth is required to prove . . . that the
Defendant did not act in the proper exercise of self-
defense. If the Commonwealth proves that the Defendant did
not act in proper self-defense solely because the Defendant
7
The judge here referred to "standard second degree
murder."
11
used more force than was reasonably necessary, then the
Commonwealth has not proved that the Defendant committed
the crime of murder. But if the Commonwealth has proved
the other required elements, you shall find the Defendant
guilty of voluntary manslaughter. I repeat that the
element of self-defense does not apply to the
Commonwealth's theory of second degree felony-murder."
At the end of the jury instructions, the judge heard the
prosecutor's and defense counsel's objections at side bar.
Defense counsel objected to the jury "not being instructed on
self-defense with regard to felony murder and/or that self-
defense is an absolute defense as to all murder charges and all
theories and lesser included offenses of murder." The judge
noted the objection but made no other reply.
On the first day of jury deliberations, the jury submitted
a question to the judge, reading, in relevant part, "Please
instruct on voluntary manslaughter as if it were the only
indictment. We are having trouble unravelling voluntary
manslaughter's interaction with the other two theories of
[second] degree murder. In particular, we need to know the
connection to self-defense and mitigating circumstances." After
consulting with counsel, the judge called the jury back into the
court room and read the model instruction for voluntary
manslaughter recommended in the absence of a murder charge,
which included the element that "the defendant did not act in
12
proper self-defense."8 Model Instructions 71-72. Defense
counsel objected to the judge "failing to . . . instruct[] the
jury that self-defense is an absolute defense, and . . . not re-
instructing the jury on self-defense as it specifically applies
to manslaughter."
A few hours later, the jury submitted another question,
which indicated their confusion regarding the relationship
between self-defense and voluntary manslaughter as a "lesser
included offense" of felony-murder:
"The jury is confused by . . . your supplementary
instruction: 'the defendant did not act in proper self-
defense.'
"Compared to your original instructions . . . : '. . . the
element of self-defense does not apply to . . . second
degree felony-murder.'
"We interpret your sentences . . . as indicating that
felony-murder can be reduced to voluntary manslaughter:
'. . . under either of the two theories of murder' . . .
"Our question is whether felony-murder under mitigating
circumstances is reducible to voluntary manslaughter
without considering self-defense."
8
The judge's instructions, which were identical to the
model instruction, were as follows:
"To prove the defendant guilty of voluntary manslaughter,
the Commonwealth must prove beyond a reasonable doubt the
following elements. One, the defendant intentionally
inflicted an injury or injuries on the victim likely to
cause death. Two, the defendant caused the death of the
victim. Three, the defendant did not act in proper self-
defense."
13
Before responding to the question, the judge heard from
both the prosecutor and defense counsel. The prosecutor stated
that a "yes" answer would be consistent with the judge's
previous instructions, but advised the judge to answer "no,"
because consistent with her previous position, she did not think
voluntary manslaughter was a lesser included offense of felony-
murder. Defense counsel agreed that voluntary manslaughter was
not a lesser included offense of felony-murder, but stated that
in the interest of consistency, the judge should answer "yes,"
while specifying that the jury should consider self-defense on
the issue of voluntary manslaughter. The judge rejected the
prosecutor's approach, and said that following defense counsel's
approach would "overcomplicat[e] matters." The judge told
defense counsel that "yes" was a "defense-friendly answer," and
"I'm not sure how I could do better . . . by the defense than to
say yes."
After consulting with the defendant, defense counsel told
the judge that "my position would be that the Court simply
answer yes, that felony-murder under mitigating circumstances is
reducible to voluntary manslaughter without considering self-
defense." Defense counsel then added, "I would reiterate my
request that the jury also be told that they should consider the
issue of self-defense if they're considering the issue of
manslaughter under either theory." The judge responded to the
14
jury's question as follows: "Under the circumstances of this
case the answer to this question is yes."
The jury returned a verdict of guilty of the lesser offense
of voluntary manslaughter without identifying whether the
verdict was based on mitigation of murder in the second degree,
mitigation of felony-murder in the second degree, or on the
conclusion that the separate offense of voluntary manslaughter
had been proven.
Legal analysis. 1. Jury instructions. The defendant
argues that the trial judge erred in instructing the jury that
they could reduce felony-murder to voluntary manslaughter
without considering self-defense. He claims that in the
particular circumstances of this case, he was entitled to a
self-defense instruction on the felony-murder charge and the
judge should have provided clear guidance to the jury that they
could not reduce felony-murder to voluntary manslaughter without
considering self-defense. In addition, the defendant argues
that it was error for the judge to instruct the jury that
felony-murder could be reduced to voluntary manslaughter.
We address only the defendant's argument that he was
entitled to an instruction on self-defense,9 because we conclude
9
The defendant also argues that an instruction on
mitigation based on excessive force in self-defense should have
been given, but because he was convicted of voluntary
manslaughter, it is not in any way clear how such an instruction
15
it is dispositive. The Commonwealth tried the murder indictment
on two theories, murder in the second degree, and felony-murder
in the second degree. The judge instructed the jury on self-
defense in relation to murder in the second degree, but in
accordance with the Model Instructions 18, 55, the judge made
clear that self-defense was not a defense to felony-murder.
During deliberations when the jury sought confirmation of this
point, the judge affirmed that they were not to consider self-
defense in relation to felony-murder.
In support of this rule, the Model Instructions cite only
two cases, Commonwealth v. Griffith, 404 Mass. 256, 264-265
(1989), and Commonwealth v. Smith, 459 Mass. 538, 548 (2011).
Model Instructions 55 n.128. The underlying felony in Griffith,
supra at 257, was an armed robbery, and in Smith, supra at 541,
it was an armed home invasion. In both cases, the defendant
initiated the attack by making demands at gunpoint, but the
killing was prompted by the victim's resistance. See Griffith,
supra at 265; Smith, supra. In Griffith, the court recognized
that "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," and rejected the claim, noting that "[t]he right to
in relation to the felony-murder charge could have benefited
him.
16
claim self-defense may be forfeited by one who commits an armed
robbery, even if excessive force is used by the intended victim.
. . ." Griffith, supra at 264-265, quoting from Commonwealth v.
Maguire, 375 Mass. 768, 772-773 (1978). After engaging in a
similar analysis, the court in Smith, supra at 548, ruled that
"[s]elf-defense is inapplicable to a charge of felony-murder,"
and this rule has been incorporated into the Model Instructions.
This decisional history suggests "[t]he 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. 249, 260 (2011), quoting from
Commonwealth v. Garner, 59 Mass. App. Ct. 350, 363 n.14 (2003).
"The present case, however, may not fit well within that general
rule." Ibid. Here, viewing the evidence in the light most
favorable to the defendant, as is required to determine whether
an instruction on self-defense was warranted, the evidence
showed that the defendant only used the firearm once the drug
deal went awry and after the victim pointed a taser at him and
the victim's compatriot held a knife to the defendant's throat.
See generally Commonwealth v. Pike, 428 Mass. 393, 395 (1998);
Commonwealth v. Lopez, 474 Mass. 690, 696 (2016). Massachusetts
decisions stating that a defendant who engages in a felony
forfeits the right of self-defense "did not in arise in such a
context." Commonwealth v. Rogers, supra at 261. Rather, the
17
felonies in these cases defined the defendant as the initiator
of the violence. See, e.g., Commonwealth v. LePage, 352 Mass.
403, 419 (1967) (no manslaughter instruction appropriate where
crime occurred during armed assault with intent to rob);
Commonwealth v. Evans, 390 Mass. 144, 145, 153 (1983) (defendant
not entitled to self-defense instruction where underlying felony
was armed assault with intent to rob); Commonwealth v. Pagan,
440 Mass. 84, 91 (2003) ("[T]he defendant and his companions
were the intruders and instigators of the deadly confrontation,
and thus [in case involving armed home invasion], cannot claim
self-defense").
The defendant distinguishes the factual circumstances in
his case and the felony involved. He argues that he was "not
the first aggressor, [and] the offense of unlawful possession of
a firearm is not automatically a proper predicate felony for
invocation of the felony-murder doctrine." Therefore, in
contrast to other felony-murder cases, he argues the jury must
be instructed on self-defense and excessive force in self-
defense in these circumstances. He maintains that these
instructions were relevant and necessary because the
Commonwealth was required to prove that he committed the felony
in conscious disregard for human life;10 he contends that the
10
The elements of felony-murder in the second degree are as
follows:
18
Commonwealth could not do this, because the actions relied on to
prove a conscious disregard for human life were undertaken in
self-defense.
Whether the defendant was entitled to a self-defense
instruction for felony-murder purposes in these circumstances
presents a novel, unsettled question of law. It appears that
"1. The defendant committed or attempted to commit a
felony with a maximum sentence of less than imprisonment
for life.
"2. The death occurred during the commission or
attempted commission of the underlying felony.
"3. The underlying felony was inherently dangerous
(or) the defendant acted with a conscious disregard for the
risk to human life."
Model Instructions 60. See generally Commonwealth v. Matchett,
386 Mass. at 506-508(1982); Commonwealth v. Moran, 387 Mass.
644, 648 (1982); Commonwealth v. Rolon, 438 Mass. 808, 823
(2003). See also note 6, supra.
The only difference between felony-murder in the first
degree and felony-murder in the second degree is that the felony
for the former offense must be punishable by life in prison.
See Commonwealth v. Burton, 450 Mass. 55, 57-60 (2007); Model
Instructions 51, 60.
We note that there is no uniformity regarding felony-murder
within the United States: some States have abolished the crime,
and others have significantly departed from the traditional
formulation, like that in Massachusetts. Commonwealth v.
Tejeda, 473 Mass. 269, 277 n.9 (2015). The Model Penal Code has
abandoned this formula, "requiring the homicide to be
purposeful, knowing, or reckless in order to constitute murder,
but providing for a rebuttable presumption of recklessness where
the homicide occurred during the commission of certain felonies.
Model Penal Code §§ 1.12(5), 210.2(1)(b) (1985)." Commonwealth
v. Tejeda, supra.
19
trial judges in similar cases have struggled with the general
rule that self-defense is inapplicable to felony-murder, a point
that is evident in our appellate decisions. There are a variety
of felony murder cases in which an instruction on self-defense
has been requested and given without objection in such
circumstances. See, e.g., Commonwealth v. Rogers, 459 Mass. at
261 (self-defense instruction given where defendant stabbed
store employees who chased and assaulted defendant after he had
shoplifted items); Commonwealth v. Garner, 59 Mass. App. Ct.
350, 363 n.14 (2003) (where underlying felony was unlawful
possession of firearm, jury were instructed on self-defense).
See also Commonwealth v. Roderick, 429 Mass. 271, 272-273, 278
n.2 (1999) (self-defense instruction given where defendant
claimed he shot victim when, after trying to negotiate drug
sale, victim came at him with machete). In none of these cases
was the appellate court required to rule on the propriety of the
self-defense instruction, but there is a recognition that these
cases differ from ordinary felony-murders in which a defendant
is the first aggressor and a self-defense instruction has been
ruled inappropriate.
"Cases in other jurisdictions are split on the application
of the defense of self-defense to a charge of felony-murder."
Commonwealth v. Rogers, 459 Mass. at 260 n.15. This is true
even in the context of drug sales gone bad, where the defendant
20
is not the initiator of the violence. See Perkins v. State, 576
So. 2d 1310, 1311 (Fla. 1991) (defendant entitled to self-
defense instruction where he and victim were engaged in drug
deal and victim was first to threaten deadly force). Compare
State v. Mitchell, 262 Kan. 687, 696 (1967) (defendant not
entitled to self-defense where, during drug sale in cab of
victim's truck, defendant shot and killed victim after victim
allegedly fired first shot). See Davis v. State, 290 Ga. 757,
758-759 (2012) (self-defense is permitted in certain instances
of felony murder, but shooting that occurs during felony drug
deal is not such felony); People v. Walker, 908 N.Y.S. 2d 419,
425 (2010) (felony-murder statute limits felonies to which it
applies to certain enumerated crimes including robbery,
burglary, kidnapping, arson, and rape).
We conclude that the general rule that self-defense is not
applicable to felony-murder does not apply in the circumstances
of this case. Where the felony was not inherently dangerous,
and the defense was based on the assertion that the defendant
was not the aggressor and initiator of the violence, an
instruction on self-defense in relation to felony-murder should
have been given.11 See generally Commonwealth v. Kendrick, 351
11
There is no live dispute that the facts here support a
self-defense instruction, as evinced by the jury having been
instructed on self-defense in relation to murder in the second
degree.
21
Mass. 203, 211 (1966); Commonwealth v. Pike, 428 Mass. 393, 395
(1998) ("A defendant is entitled to a self-defense instruction
if any view of the evidence would support a reasonable doubt as
to whether the prerequisites of self-defense were present"). We
do so recognizing that this is a very close question, because
bringing a firearm to a drug transaction presents obvious risks
of violence.
Because the defendant requested an instruction on self-
defense with respect to felony-murder in the second degree and
objected when it was not given, we review to determine whether
the error was prejudicial. Commonwealth v. Graham, 62 Mass.
App. Ct. 642, 651 (2004). That standard requires that the
Commonwealth show "with fair assurance" that the error did not
"substantially sway[ ]" the verdict in the case. Commonwealth
v. Rosado, 428 Mass. 76, 79 (1998), quoting from Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). We cannot so conclude for
the following reasons.
In this case the jury returned their verdict without
specifying the theory of culpability, and therefore it is not
clear whether the defendant's conviction of voluntary
manslaughter resulted from the mitigation of murder in the
second degree or the reduction of felony-murder to voluntary
manslaughter. See, e.g., Commonwealth v. Brown, 470 Mass. 595,
601 & n.12 (2015). See also Commonwealth v. Accetta, 422 Mass.
22642, 646 (1996); Commonwealth v. Morse, 468 Mass. 360, 376
(2014). With respect to the former theory, the jury received
correct instructions on self-defense and excessive force in
self-defense, and their respective relationships to verdicts of
not guilty and guilty of voluntary manslaughter, and the
defendant does not contend otherwise. With respect to felony-
murder in the second degree, however, the jury were specifically
and erroneously instructed that they could reduce felony-murder
to voluntary manslaughter without considering self-defense.
This was confusing and incorrect. Most importantly, they were
not instructed, as the defendant requested, that self-defense
was an absolute defense that should result in a verdict of not
guilty of both felony-murder and voluntary manslaughter. This
was reversible error. Because we conclude that the defendant
was entitled to such an instruction, and because the jury's
verdict may have been the result of reducing felony-murder in
the second degree to voluntary manslaughter, we cannot say that
the elimination of self-defense from this calculus did not
substantially sway the verdict when self-defense was the
defendant's primary defense. See Commonwealth v. Graham, 62
Mass. App. Ct. at 651; Commonwealth v. Eberle, 81 Mass. App. Ct.
235, 241 (2012) (substantial risk of miscarriage of justice
23
where failure to give self-defense instruction deprived
defendant "of his primary argument of defense").12
Conclusion. We reverse the defendant's conviction of
voluntary manslaughter and set aside that verdict.
So ordered.
12
Because the other issues will not reoccur at a new trial,
we need not address them. We trust that any stereotypical
distinctions drawn between people from the city and suburbs will
be avoided.