928 N.E.2d 664
Mass. App. Ct.
2010
Mills, J.

A jury сonvicted the defendant of assault and battery on a police officer, G. L. c. 265, § 13D. She appeals, claiming that (1) the judge erred in not instructing the jury on defense of another, and (2) the prosecutor made improper references to a codefendant who had pleaded guilty and was no longer a party. Because we conclude that the judge should have instructed the jury on defense of another, we reverse.

Background. The testimony at trial reveаled the following. On September 6, 2006, after drinking alcohol with Demetria Battle, the defendant was waiting in the driver’s seat of her *77sport utility vehicle (SUV) in a parking lot in Somerville. State Trooper Brian Sweet noticed that the SUV’s headlights were off, approached the vehicle, and asked the defendant for her license and registration. He noticed indicia of alcohol impairment, and the defendant admitted that she had been drinking. At the trooper’s request, she gоt out of and walked to the front of the SUV.

At this point, Battle approached the back of the SUV. She was angry, yelled at Trooper Sweet, and then walked away. She returned shortly thereafter and joined the trooper and thе defendant, who were at the front of the SUV. Battle became increasingly agitated and hostile, continued yelling at the trooper, took out her cellular telephone, and began recording the trooper’s interaction with the defendant. Trooper Sweet testified that Battle also showed indicia of alcohol impairment and that he became concerned for his own safety as well as the safety of the defendant. He told Battle to either sit in the SUV or leave the area. The defendant coaxed her into the vehicle.

Trooper Sweet then attempted to administer field sobriety tests to the defendant. Trooper Carl Johnson, who had arrived at the sсene, parked behind Trooper Sweet’s cruiser. As he approached, Battle got out of the SUV and began yelling and pointing her finger at both troopers. Trooper Sweet testified that Battle was extremely agitated and hostile and that he was concerned for the safety of everyone present. He decided to place Battle in protective custody and ordered her to put her hands behind her back. She initially complied, but aftеr he placed a handcuff on her left wrist, she attempted to twist and pull away. Battle then dropped to the ground and attempted to free herself from his grasp. Trooper Sweet testified that while they were on the ground, Battlе kicked him approximately eight times, and during the scuffle, the defendant ran from the front of the SUV, grabbed his left arm, and pulled on it as he was attempting to handcuff Battle. Trooper Sweet further testified that he was concerned that thе defendant could access his firearm, so he pushed her away and observed her fall onto the sidewalk.

The defendant offered a somewhat different version of events and testified to the following. While Battle was yelling and screaming, Trooper Sweet tried to restrain her. He grabbed Battle’s arm, threw her to the ground, flipped her over, and kneeled *78on her back. The trooper had one knee on top of Battle’s back, with her face on the grоund. Battle screamed, “You’re hurting me,” and the defendant screamed two or three times, “Sir, you’re hurting her.” The defendant also screamed, “Sir, you are hurting her. Can you please get off of her.” She testified that she believed the trooper was rough with Battle, and she was concerned about her own safety. She explicitly testified that she did not grab the trooper’s arm, and that after the trooper placed Battle in custody, he grabbed the defendant’s arm, twisted it, and threw her to the ground.

Discussion. The defendant argues that the judge erred in declining to instruct the jury on defense of ‍‌​‌​‌‌​​‌​‌‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​​‌‌​‌‌​‌‍another. We note that because “defense of another tracks the elements of self-defense,” Commonwealth v. McClendon, 39 Mass. App. Ct. 122, 126 (1995), we apply familiar рrinciples in determining whether the requested instruction was warranted. “A defendant is entitled to a [defense of another] instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of [defense of another] were present.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998). In making this inquiry, “all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible [her] testimony, that testimony must be treated as true.” Ibid.

An apparent incоnsistency emerges when we seek to apply these instructions to the facts of this case. The defendant claims she did not grab Trooper Sweet’s arm, while the Commonwealth’s evidence was that she did. If the defendant’s testimony must be trеated as true, defense of another was not available because she never grabbed the trooper’s arm. See Commonwealth v. Martin, 369 Mass. 640, 649 (1976) (defense of another requires, in part, that an actor use “force against another to prоtect a third person”). If, however, we apply the “any view of the evidence” standard, then a defense of another instruction may have been warranted based, in part, upon the Commonwealth’s evidence.1

We conсlude that the “any view of the evidence test” should be applied in this case. To the extent that some cases utilize *79language suggesting we treat the defendant’s story as true, the “any view of the evidence” standard is not abrogatеd. In those cases, the defendant claimed facts consistent with the requested instruction. That is not the situation here.

Our conclusion that the “any view of the evidence” test is the controlling principle, notwithstanding language in other cаses that could be perceived to the contrary, is supported by the notion that judges should “err on the side of caution in determining that self-defense has been raised sufficiently to warrant an instruction.” Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 701 (2002), quoting from Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644 (2002). Further, we note that “[t]he evidenсe bearing upon self-defense may be contained ‍‌​‌​‌‌​​‌​‌‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​​‌‌​‌‌​‌‍in the Commonwealth’s case, the defendant’s case, or the two in combination.” Commonwealth v. Galvin, supra at 699. See Commonwealth v. Santos, 454 Mass. 770, 773 (2009) (“[t]he defendant is entitled to an instruction on self-defense with a dangerous weapon if the еvidence, from any source, would warrant a finding in [her] favor on that issue” [emphasis added]). Thus, the defendant’s testimony that she never touched the trooper does not preclude a defense of another instruction in this case.

We next examine whether there was a factual predicate for a defense of another instruction based upon any view of the evidence. “An actor is justified in using force against another to protect a third person when (a) a reаsonable person in the actor’s position would believe [her] intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them tо be, the third person would be justified in using such force to protect [her]self.” Commonwealth v. Martin, 369 Mass. at 649.

The Commonwealth’s version of the evidence, namely that *80the defendant grabbed Trooper Sweet’s arm during his scuffle with Battle, shows that the defendant used force for the protection of Battle. Further, in the light most favorable to the defendant, a reasonable person in the defendant’s position could believe that her intervention was necessary to protect Battle. The defendant testified that the trooper had thrown Battle to thе ground and that she was lying face down with the trooper’s knee on her back. Further, the defendant testified that the trooper was rough with Battle, that he was hurting her, and that she, the defendant, feared for her own and Battle’s safety.2

Finally, in the light most favorable to the defendant, the evidence suggests that Battle could have been justified in using force to protect herself. An individual may resist an arrest if excessive force is used in effectuating the arrest. Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 448 (2005). In this case, the jury could have believed that the trooper used excessive force. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 652 (2004).

Further, even though Battle may have been the initial aggressor, the jury could have found that Trooper Sweet’s use of excessive force restorеd her right to self-defense. See generally Commonwealth v. Evans, 390 Mass. 144, 153-154 (1983) (victim did not use excessive force and thus court declined to consider ‍‌​‌​‌‌​​‌​‌‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​​‌‌​‌‌​‌‍whether the defendant’s right to self-defense may have been restored); Commonwealth v. Naylor, 407 Mass. 333, 335 & n.3 (1990) (noting that although self-defense was not avаilable to the defendant because he was the initial aggressor, “[a] different conclusion might result if the [victim] used excessive force”).3 *81We conclude that this result flows logically from Commonwealth v. Evans, supra, and Commonwealth v. Naylor, supra.

The judge’s failure to instruct on defense of another was error and because it was preserved,4 we review under the familiar prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (an error is nonprejudicial only if we are “sure that the error did not influence the jury, or had but very slight effect”). The prejudice here is obvious because the jury could have acquitted the defendant based upon defense of another if they chose to believe the evidence supporting that defense. Further, questions from the jury during deliberations suggest that they were considering whether the defеndant’s actions may have been justified based on defense of another.5 Compare Commonwealth v. Green, 55 Mass. App. Ct. 376, 380-381 (2002) (failure to instruct on defense of another not prejudicial when jury rejected defendant’s self-defense argument).

Because we conclude that the defendant’s conviction must be reversed, we need not consider her argument that the prosecutor made inappropriate references to Battle during the course of trial.

Judgment reversed.

Verdict set aside.

Notes

For cases relying on the “any view of the evidence” test and similar formulations, see Commonwealth v. Monico, 373 Mass. 298, 299 (1977) (“if any view of the evidence would provide support for an ‍‌​‌​‌‌​​‌​‌‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​​‌‌​‌‌​‌‍affirmative defense, a defendant is entitled to such an instruction”); Commonwealth v. Lopes, 440 *79Mass. 731, 740 (2004); Commonwealth v. Brum, 441 Mass. 199, 206 (2004); Commonwealth v. Haith, 452 Mass. 409, 415-416 (2008); Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 700-701 (2002); Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 736 n.5 (2003).

For cases relying on language suggesting we treat the defеndant’s story as true, see Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975), quoting from Commonwealth v. Campbell, 352 Mass. 387, 398 (1967) (court must consider the defendant’s testimony “based upon the hypothesis that it is entirely true”); Commonwealth v. Brown, 387 Mass. 220, 227 (1982).

As discussed above, it does not matter that a portion of the evidence supporting defense of another cаme from the trooper’s testimony while another portion of the evidence came from the defendant’s testimony. See Commonwealth v. Galvin, supra at 699.

The Commonwealth relies on Commonwealth v. Brum, 441 Mass. at 208, for the proposition that an initial aggressor who has not withdrawn has no viable claim of self-defense. We read that case somewhat differently.

In Commonwealth v. Brum, the court relied on the well-settled principle that the defendant, an initial aggressor who had failed to withdraw, did not have a right to self-defense. However, that court did not have oсcasion to address whether an initial aggressor’s right to self-defense may be restored by virtue of a victim’s use of excessive force. Thus, Commonwealth v. Brum is not controlling on that issue.

Defense counsel requested, and the judge denied, a defense of another instruction both аt the conclusion of trial and after the judge received a second set of questions from the jury.

Shortly after beginning deliberations, the jury submitted questions requesting review of the elements of the charged offenses and for “clarification of what is allowed by law for a citizen if they believe an officer is potentially injuring someone arrested.” The judge reinstructed on the elements of the offenses, police privilege, and a citizen’s right to resist an arrest effеctuated with excessive force.

At some point thereafter, the jury submitted a second set of questions requesting a review of the elements of resisting arrest and assault and battery on a police ‍‌​‌​‌‌​​‌​‌‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​​‌‌​‌‌​‌‍officer. The judge denied defense counsel’s explicit request for a defense of another instruction and reinstructed on the elements of those offenses.