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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.
                                                                    22


642, 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.
