Commonwealth v. NobleCommonwealth v. Noble
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- Before:
- Abrams
The defendant, Kevin V. Noble, has appealed from
The charge against the defendant stemmed from an incident that occurred on June 24, 1994. The defendant lived in the basement apartment of his brother David’s home. The defendant was playing his stereo loudly, disturbing David. David went downstairs leaving his girl friend in his (David’s) apartment. David told the defendant to lower the volume. David’s girl friend heard the two men yelling. She then heard “banging noises.” She went downstairs. She saw the defendant on top of his brother. The defendant had his brother in a headlock with his arm around David’s neck. The defendant was strangling David. David’s girl friend said that the defendant appeared to be “using all his might.” He appeared to be using “every bit of strength he had.”
The girl friend yelled to thе defendant, “Stop. Get off him. You’re strangling him. You’re killing him.” The defendant made no response. He continued to strangle David. She yelled that David was turning blue. The defendant again made no response. She saw the defendant give David three “really, really tight jerks.” The defendant got off David and said, “I don’t care. It was self-defense.” When the defendant released his hold, the girl friend unsuccessfully attempted to resuscitate David. •
1. Self-defense instruction. The defendant’s theory at trial was self-defense. He testified that his brother, who was slightly taller and much heavier, attacked him after complaining about the volume of the stereo. The defendant also stated that he did not intend to kill his brother and that he was frightened of him. The judge instructed the jury on the use of deadly force in self-defense.
The defendant complains that the judge failed also to charge the jury on the use of nondeadly force in self-defense. The defendant raises this argument for the first time on appeal. Although defense counsel objected аt the close of the charge and the supplementary charge, the objections did not focus on
We consider whether the defendant was entitled to a non-deadly force instruction and agree he was. In construing the necessity fоr a nondeadly self-defense instruction, we view the evidence in the light most favorable to the defendant. See Commonwealth v. Pike, 428 Mass. 393, 396 (1998); Commonwealth v. Reed, 427 Mass. 100, 102-103 (1998), and cases cited. Deadly force — force intended or likely to cause death or serious bodily harm — can be used in self-defense only on a reasonable belief that one is in imminent danger of death or serious bodily harm. See Commonwealth v. Cataldo, 423 Mass. 318, 321 (1996); Commonwealth v. Klein, 372 Mass. 823, 827 (1977).
“An individual may use nondeadly force in self-dеfense when he has a reasonable concern over his personal safety.” Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995) (holding that, when a defendant is charged with assault and battery by means of a dangerous weapon and assаult and battery, judge must instruct on self-defense relating to both deadly and non-deadly force). Nondeadly force, such as the force of one’s fists, hands, and arms, is considered to be nondeadly evеn if a death results. The right to use nondeadly force in self-defense arises at a lower level of danger than the right to use a weapon, which is ordinarily considered to be deadly force. Id. at 502. See Cataldo, supra; Klein, supra.
Thе defendant presented evidence that he did not intend to kill or seriously harm David and that the force he used was unlikely to do so.2 There was evidence the defendant was frightened of his brother, whо was taller and heavier than the defendant. It was for the jury to determine whether the headlock used by the defendant was deadly or nondeadly force. Cataldo, supra at 323. If the force was intended or likely to cause death, then the defendant was entitled to use it only if he reasonably believed he was in danger of death or serious bodily harm. If the force used by the defendant was nondeadly, the defеndant had to reasonably fear for his personal safety. The judge
Because there was error, we must detеrmine whether that error created a substantial risk of a miscarriage of justice. Commonwealth v. Pares-Ramirez, 400 Mass. 604, 609 (1987), citing Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We examine the jury instructions in their entirety “to determine their probable impact on the jury’s perceptiоn of the fact-finding function.” Commonwealth v. Mejia, 407 Mass. 493, 495 (1990).
The judge’s instructions removed from the jurors’ consideration the issue whether the defendant used nondeadly force in response to a reasonable fear for his safеty. That error substantially undermined the defendant’s claim of self-defense and also deprived him of jury consideration of a substantial part of his defense. See Commonwealth v. Thomas, 401 Mass. 109, 118-119 (1987) (new trial required where there was a failure to instruct on requirement of scienter); Commonwealth v. Pickles, 393 Mass. 775, 779-780 (1985) (new trial required where instructions created jury confusion on both burden of proof and elements of crime). We conclude that the judge’s failure tо instruct on nondeadly force created a substantial risk of a miscarriage of justice.
2. Grand jury instructions. The defendant moved to dismiss the indictment charging murder in the first degree. Invoking the protection of art. 12 of the Massachusetts Declaration of Rights, he argued that, without instructions on the elements of murder, the grand jurors could not perform their function of determining whether and for what offense to indict.3 The motiоn judge denied the defendant’s motion, reasoning that, although the grand jury would have benefited from instructions on the ele
The Commonwealth is not required to inform a grand jury of the elements of the offense for which it seeks an indictment or of any lesser included offenses. See Commonwealth v. Bousquet, 407 Mass. 854, 860 (1990) (rejeсting contention that prosecutor required to instruct grand jurors on differences between murder in first degree and second degree and manslaughter). See also United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988) (prosecutor under no obligаtion to give grand jurors legal instructions); United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir.), cert. denied, 452 U.S. 920 (1981) (holding that United States Constitution imposes no requirement that grand jurors receive legal instructions). The degree of murder is properly determined by the petit jury.
Our rule comports with our practice of subjecting grand jury proceedings to only limited judicial review. As long as the evidence bеfore the grand jury was sufficient to warrant a conclusion of probable cause and the integrity of the proceedings was unimpaired, we do not disturb an indictment. Commonwealth v. Mayfield, 398 Mass. 615, 619-620 (1986), and cases cited. Any further reviеw of grand jury proceedings would add delay and complexity without serving any significant purpose.
3. Issue likely to arise at retrial. One additional issue raised by the defendant is likely to arise at retrial. The defendant argues that he was prejudiced by the judge’s incomplete instruction on the absence of a duty to retreat from a person unlawfully in one’s dwelling.
We affirm the denial of the motion to dismiss the indictment. But because of the error in the self-defense instruction, the judgment is reversed, the verdict set aside, and the case remanded to the Superior Court for a new trial.
So ordered.
Notes
Appellate counsel was not trial counsel.
Therewas no evidence that the defendant used a weapon.
The defendant, citing People v. Calbud, Inc., 49 N.Y.2d 389 (1980), urges us to follow the law of New York, which, he claims, requires that the grand jury be informed of the elements of the offense. Our review of that case reveals otherwise. The Court of Appeals of New York noted that the law directed the рrosecutor to give legal instruction to the grand jury, but only where “necessary or appropriate.” Id. at 394. The court held that the grand jury “need not be instructed with the same degree of preсision that is required when a petit jury is instructed on the law,” advising that this requirement is met “by reading to the Grand Jury from the appropriate sections of the Penal Law.” Id. at 394, 395 & n.1. The prosecutor did so in this case.
This does not foreclose other means by which a person may be held to be unlawfully in a dwelling. See, e.g., Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 64 (1997) (crime of “home invasion,”