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17-P-740                                              Appeals Court

             COMMONWEALTH    vs.   RAFAEL LEONER-AGUIRRE.1


                              No. 17-P-740.

         Suffolk.       October 12, 2018. - December 13, 2018.

             Present:     Rubin, Wolohojian, & Blake, JJ.


Assault and Battery. Assault and Battery by Means of a
     Dangerous Weapon. Assault with Intent to Kill. Firearms.
     Practice, Criminal, Presumptions and burden of proof,
     Instructions to jury. Self-Defense. Evidence, Self-
     defense.



     Indictments found and returned in the Superior Court
Department on June 30, 2014.

     The case was tried before Kimberly S. Budd, J.


     S. Anders Smith for the defendant.
     Julianne Campbell, Assistant District Attorney, for the
Commonwealth.


     BLAKE, J.      Following a jury trial in the Superior Court,

the defendant, Rafael Leoner-Aguirre, was convicted of numerous


     1 As is our custom, we spell the defendant's name as it
appears in the indictments.
                                                                    2


crimes stemming from a shooting in Chelsea.2   He argued that he

shot the victim in self-defense.   On appeal, the defendant

claims that the judge erred when she instructed the jury that

the defendant had a duty to retreat, and that the judge

improperly shifted the burden of production to the defendant on

whether a self-defense instruction was warranted by the

evidence.   We affirm.

     Background.   The jury were presented with the following

evidence.   On April 16, 2014, at approximately 2:30 P.M., Javier

Servellon and Amilcar Portillo were walking down Broadway Street

in Chelsea.   Two men, Josue Morales and the defendant,

approached Servellon and Portillo because they believed

Servellon and Portillo had stabbed their friend.   A fight broke

out, initiated by the defendant and Morales.   Servellon believed

that one of the attackers had a weapon and tried to run away.

However, Servellon turned back because he did not want to leave

Portillo alone with the attackers.   While trying to help

Portillo, Servellon tried to hit the attackers with an object.3


     2 The defendant was convicted of assault with intent to
kill, aggravated assault and battery by means of a dangerous
weapon, assault and battery by means of a dangerous weapon, two
counts of assault and battery, possession of a firearm without a
firearm identification (FID) card, and possession of a loaded
firearm without an FID card.

     3 Javier Servellon described the object as a big necklace or
a chain. Portillo testified that the object was a rock, a
brick, or a chain. A bystander described the object as a belt.
                                                                     3


       During the fight, Portillo saw the defendant display a gun

and heard him say, "Today I'm going to kill you."    Servellon saw

the defendant "brace the gun," and turned around to flee.    The

defendant fired two shots at Servellon, who was struck in the

buttocks.   The defendant later admitted to others that he had

shot Servellon and showed the gun to them.

       In connection with a police investigation of the shooting,

the defendant told police that one of "two young men" had

displayed a gun, and that the man tripped and dropped the gun

during the altercation.    The defendant explained that he was mad

so he picked up the gun, shot it once, and then hid it in his

bag.

       At trial, the defendant testified that he shot Servellon

but did so in self-defense.    He explained that he had problems

with Servellon in the past, and that when he saw Portillo and

Servellon on the street, he thought Portillo had a weapon.    He

testified that Portillo dropped a gun and that he, the

defendant, "picked it up," "put it away," and then "r[an] to

fight Servellon."    He testified that Servellon tried to hit him

twice with a bike chain, and that on Servellon's second attempt

to hit him, he shot the gun at Servellon twice in self-defense.

       At the close of the evidence, the defendant filed a motion

for "a self-defense jury instruction."    Over the objection of
                                                                    4


the Commonwealth, the judge so instructed the jury.4    The

defendant did not object to the instruction as given.

     Duty to retreat.   At the close of evidence, the judge,

without objection, instructed the jury5 that the defendant had a

duty to retreat if he could do so in safety prior to using

deadly force.   On appeal, the defendant claims that "[t]he

longstanding Massachusetts' duty to retreat rule, as an undue

restriction of a fundamental right [to self-defense]," is

unconstitutional.   In support of his claim, the defendant relies

on the holdings of McDonald v. Chicago, 561 U.S. 742 (2010), and

District of Columbia v. Heller, 554 U.S. 570 (2008), to suggest

that the right to defend one's self is a fundamental

constitutional right that cannot be limited by the "undue


     4 In his motion, the defendant refers to Instruction 9.260
of the Criminal Model Jury Instructions for Use in the District
Court (2009). Nonetheless, this error has no bearing on the
defendant's argument, as the judge correctly instructed the jury
in accordance with § 5.4.1 of the Massachusetts Superior Court
Criminal Practice Jury Instructions (2d ed. 2013).

     5 Consistent with § 5.4.1 of the Massachusetts Superior
Court Criminal Practice Jury Instructions, and the holding in
Commonwealth v. Mercado, 456 Mass. 198, 208-209 (2010), the
judge instructed the jury that "[t]he Commonwealth satisfies its
burden of proving that the defendant did not act in proper self-
defense if it proves . . . the defendant did not use or attempt
to use all proper and reasonable means under the circumstances
to avoid physical combat before resorting to the use of deadly
force." She further instructed that "[a] person must retreat
unless he cannot do so in safety or unless retreat would
increase the danger to his or her own life."
                                                                     5


restriction" of a duty to retreat.   He also relies on Brown v.

United States, 256 U.S. 335 (1921), for the proposition that an

individual does not forfeit his right to use deadly force, even

when it is safe to retreat and he fails to do so.

     In Heller, 554 U.S. at 635, the United States Supreme Court

concluded that a "ban on handgun possession in the home violates

the Second Amendment [to the United States Constitution], as

does its prohibition against rendering any lawful firearm in the

home operable for the purpose of immediate self-defense."      The

Second Amendment was subsequently held applicable to the States.

See McDonald, 561 U.S. at 791.   The defendant argues that the

United States Constitution gives someone possessing a handgun

the right to utilize it in self-defense even where he or she

could retreat in safety without increasing the danger to his or

her own life.   There is no basis in law or history for this

view.   Where one can retreat in safety, it is not necessary to

utilize deadly force in self-defense.   Defendant's counsel

conceded as much at oral argument.

     Here, the defendant was in a public place and in possession

of an unlicensed handgun.   Even assuming that the defendant had

a constitutional right to use his firearm in self-defense if

necessary, it did not give him, or anyone, the right to utilize

a firearm in self-defense when it is unnecessary, for example,
                                                                   6


when one can safely retreat as required by the defense of self-

defense under Massachusetts law.

     In essence, the defendant is asking us to supplant

centuries of common law that requires a defendant to retreat

before using deadly force, see Monize v. Begaso, 190 Mass. 87,

88-89 (1906), and to hold that the Constitution imposes a "stand

your ground" regime even in States that have not adopted one.6,7

Indeed, at oral argument, the defendant likened his position to

the laws of some States that establish a right to self-defense

against threats or perceived threats, even to the point of

applying deadly force, the so called "stand your ground" laws.

See, e.g., Fla. Stat. Ann. § 776.012, Ala. Code § 13A-3-23(b).



     6 "[The Supreme Judicial Court] is the highest appellate
authority in the Commonwealth, and [its] decisions on all
questions of law are conclusive on all Massachusetts trial
courts and the Appeals Court." Commonwealth v. Vasquez, 456
Mass. 350, 356 (2010). See Commonwealth v. Dube, 59 Mass. App.
Ct. 476, 485-486 (2003) (Appeals Court has "no power to alter,
overrule or decline to follow the holdings of cases" decided by
Supreme Judicial Court).

     7 The adoption of the Massachusetts Constitution in 1780 did
not displace centuries of common law. See Part II, c. 6, art.
6, of the Massachusetts Constitution ("All the laws which have
heretofore been adopted, used and approved in the Province,
Colony or State of Massachusetts Bay, and usually practiced on
in the courts of law, shall still remain and be in full force,
until altered or repealed by the legislature; such parts only
excepted as are repugnant to the rights and liberties contained
in this constitution").
                                                                   7


    Barring some constitutional prohibition, States are free to

adopt such laws.   But Massachusetts has not, and nothing in

Heller, McDonald, or the Second Amendment prohibits States from

abiding by the long-standing rule that deadly force, including

by the use of a firearm, may be used only when actually

necessary in self-defense.

    Nor does Brown, 256 U.S. at 342-344, in which the Supreme

Court found that the judge erred by instructing the jury that

the defendant was required to attempt to retreat before he could

claim self-defense, provide any support for the defendant's

argument.   Brown was a common-law case, not purporting to

interpret the United States Constitution, and it did not and

does not prevent the Commonwealth from adopting the opposite

rule.   See Commonwealth v. Trippi, 268 Mass. 227, 232 (1929),

quoting Commonwealth v. Peterson, 257 Mass. 473, 478 (1926)

("right of self-defence does not accrue to a person 'until he

has availed himself of all proper means in his power to decline

the combat'").

    On the merits of his self-defense claim, the defendant

fares no better.   "[T]he privilege to use self-defense arises

only in circumstances in which the defendant uses all proper

means to avoid physical combat."   Commonwealth v. Mercado, 456

Mass. 198, 209 (2010), citing Commonwealth v. Benoit, 452 Mass.

212, 226 (2008).   Accord Commonwealth v. Berry, 431 Mass. 326,
                                                                     8


335 (2000).   Here, no view of the evidence supports the

suggestion that the defendant availed himself of any means to

retreat before using deadly force on a public street, and a

reasonable jury could so find.    The defendant acknowledged that

Servellon was shot in the backside while running from the scene.

There was no evidence that the defendant was not able to walk

away from the fight.     Unlike in Brown, 256 U.S. at 344, there

was no evidence here that the defendant feared for his life or

that the attack was initiated by the victim.    Out of an

abundance of caution, the jury were instructed on the duty to

retreat, which was part of the self-defense instruction that the

defendant asked for and to which he did not object.    Indeed, the

defendant got more than he was entitled to receive.    According-

ly, there was no error, let alone a substantial risk of a

miscarriage of justice.

    Self-defense instruction and burden of proof.     The

defendant claims that the judge improperly shifted the burden of

proof to him by stating that he must present evidence in order

to receive a self-defense instruction, and that this essentially

forced him to testify.    There are no facts in the record to

support this burden-shifting claim.     Near the end of the

Commonwealth's case, the judge cautioned that she was not likely

to give a self-defense instruction absent some additional
                                                                     9


evidence from the defendant.8   The defendant did not seek

clarification, nor did he argue that he was entitled to the

instruction based on the Commonwealth's case-in-chief.     Rather,

he raises the claims of burden shifting and compulsion to

testify for the first time on appeal.

     "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."

Commonwealth v. Pike, 428 Mass. 393, 395 (1998).    The

Commonwealth, in its case-in-chief, introduced in evidence a

transcription of the police interview of the defendant.      The

defendant told the police that he shot the gun out of anger

rather than out of fear.   He explained, "I got mad, I got mad, I

got mad, then, because I really wanted to grab him, and it was

like he tripped and dropped the gun.    I was mad, I grabbed it

and shot it."   Although the Commonwealth presented evidence that

Servellon used an object during the fight, at the close of the

Commonwealth's case there was no evidence that the defendant

"reasonably and actually believed that he was in 'imminent

danger of death or serious bodily harm, from which he could save

himself only by using deadly force.'"    Id. at 396, quoting


     8 The prosecutor asked the judge if she would give a self-
defense instruction if the defendant "hasn't put any witnesses
to show self-defense." The judge answered, "No, it's not likely
if he doesn't put anyone on."
                                                                  10


Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).     Viewing

the evidence in the Commonwealth's case-in-chief in the light

most favorable to the defense, the absence of any evidence that

the defendant attempted to avoid physical combat rendered a

self-defense instruction unwarranted at that stage of the trial.

See Commonwealth v. Espada, 450 Mass. 687, 692-694 (2008).

There was no error in the judge's statement that she was

unlikely to instruct on self-defense without additional evidence

from the defendant.

                                   Judgments affirmed.
