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SJC-12661

              COMMONWEALTH   vs.   RAHEEM ABUBARDAR.


                         April 25, 2019.


Practice, Criminal, Instructions to jury, Presumptions and
     burden of proof. Evidence, Presumptions and burden of
     proof, Self-defense. Self-Defense.


     The defendant, Raheem Abubardar, was convicted of assault
and battery as a lesser included offense of attempted murder.1
On appeal, he challenged the trial judge's instruction on self-
defense, specifically the judge's failure to instruct on the use
of nondeadly force in self-defense. In an unpublished
memorandum and order pursuant to its rule 1:28, the Appeals
Court affirmed the conviction. See Commonwealth v. Abubardar,
93 Mass. App. Ct. 1121 (2018). It concluded that the defendant
was not entitled to such an instruction and, even if he had
been, its absence did not give rise to a substantial risk of a
miscarriage of justice. See id. On further appellate review,
we reverse.

     Discussion. In relevant part, the charges against the
defendant arose out of an altercation inside a parked van. The
defendant testified that the complainant instigated the events
by hitting and scratching him, and he was "just sitting there,"
"trying to hold [the complainant] and contain her . . . so [he]

    1  The defendant was acquitted of rape, intimidation of a
witness, and unauthorized use of a motor vehicle. An indictment
alleging rape as a subsequent offense was nol prossed. The
defendant also was convicted of threatening to commit a crime,
and pleaded guilty to failure to register as a sex offender;
neither of those convictions is at issue on appeal.
                                                                   2


could get away." The complainant testified that the defendant
threatened and choked her; the defendant claimed he only pushed
her away. When a passerby saw the altercation and knocked on
the van window, the defendant pushed the complainant and she
opened the door and fled.

     At the defendant's request and over the Commonwealth's
objection, the judge gave an instruction on self-defense.
Although the instruction was in its essence a deadly force
instruction, it was not identified in that way: the jury were
instructed on "proper self-defense" as a general concept. Based
on the instruction, the jury would have understood that "the
defendant did not act in proper self-defense if [the
Commonwealth] prove[d] . . . that the defendant did not actually
believe that he was in immediate danger of death or serious
bodily harm." On the evidence at trial, to be sure, the jury
could have concluded that the defendant did not believe he was
in "immediate danger of death or serious bodily harm" during the
altercation, and so -- following the instructions that were
given -- the defendant could not have acted in "proper self-
defense."

     The defendant did not propose a specific self-defense
instruction, nor did he object to the one that was given. We
conclude, however, that, in the circumstances present here, he
was also entitled to a nondeadly force instruction. Drawing
reasonable inferences in the defendant's favor, see Commonwealth
v. Pike, 428 Mass. 393, 395 (1998); Commonwealth v. Toon, 55
Mass. App. Ct. 642, 645 (2002), and taking the defendant's
testimony as true, the evidence supported a finding that the
defendant's actions against the complainant consisted solely of
nondeadly force, i.e., holding and pushing her away, rather than
choking her as she had claimed.2

    2  A defendant is entitled to a self-defense instruction
where the evidence, viewed in the light most favorable to the
defendant, together with "all reasonable inferences" drawn
therefrom, raises a reasonable doubt as to each component of the
instruction. Commonwealth v. Toon, 55 Mass. App. Ct. 142, 645
(2002). For these purposes, "no matter how incredible [the
defendant's] testimony, that testimony must be treated as true."
Id. at 645-646, quoting Commonwealth v. Pike, 428 Mass. 393, 395
(1998). The defendant's claim in this case is that he used only
nondeadly force rather than deadly force to defend himself
against the complainant. Contrast Commonwealth v. Walker, 443
Mass. 213, 217 (2005) (person has no right of "self-defense
where deadly force is used in response to nondeadly force").
                                                                  3



    "Where nondeadly force is used, a defendant is entitled to
    a self-defense instruction if the evidence, viewed in the
    light most favorable to the defendant without regard to
    credibility, supports a reasonable doubt that (1) the
    defendant had reasonable concern for his personal safety;
    (2) he used all reasonable means to avoid physical combat;
    and (3) 'the degree of force used was reasonable in the
    circumstances, with proportionality being the touchstone
    for assessing reasonableness.'"

Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting
Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369
(2004). There is no real dispute in this case that the evidence
was sufficient with respect to the first and third elements.
Viewing the evidence in the light most favorable to the
defendant, the jury could have found that he had a reasonable
concern for his personal safety and that he responded
proportionally: he testified that the complainant was hitting
and scratching him, and that he responded by holding or pushing
her away.

     With respect to the second element, requiring reasonable
avoidance of physical combat, defense counsel requested and
received a self-defense instruction over the Commonwealth's
specific objection that such an instruction was not warranted
because the defendant failed to retreat. See Toon, 55 Mass.
App. Ct. at 653 (instruction warranted where defendant "availed
himself of all proper means to avoid physical combat before
resorting to the use of any force, deadly or nondeadly").
Viewing the evidence in the light most favorable to the
defendant, after the complainant started hitting him, "[he]
tried to keep her from hitting [him]," and he "just wanted to
get away from her." The defendant testified that he pushed her
back because "she had scratched [him] when she slapped [him] in
the face;" he said, "I'm trying to get out the thing," "I'm
getting away from her if I can," "trying to get to the door --
reach back to the door," while "trying to keep her from hitting
me." Drawing inferences favorable to the defendant, this was
sufficient to warrant the instruction. See Commonwealth v.
Baseler, 419 Mass. 500, 502 (1995), quoting Commonwealth v.


The Commonwealth acknowledges that "[v]iewing the evidence in
the light most favorable to the defendant, his use of force did
not involve a dangerous weapon and was not intended or likely to
cause death." See Commonwealth v. Pring-Wilson, 448 Mass. 718,
734 (2007) (accepting defendant's version of events).
                                                                   4


Houston, 332 Mass. 687, 690 (1955) ("right reasonably to use a
nondeadly force, such as one's fists, in self-defense, arises at
a somewhat lower level of danger . . . than the right to use a
dangerous weapon").

     As stated, the defendant did not object to the omission of
an instruction on the use of nondeadly force in self-defense.3
Although the jury acquitted the defendant of attempted murder by
strangulation, on the instructions they were given, they could
not have considered whether there was any lawful basis on which
he could have touched the complainant at all, unless they also
found that he reasonably believed he was in imminent danger of
death or serious bodily harm.4 See Baseler, 419 Mass. at 503-
504. They were not, in other words, given the option of
considering whether he properly exercised self-defense by
applying nondeadly force out of a "reasonable concern for his
personal safety." King, 460 Mass. at 83.

     This case is similar to Baseler, supra. In that case, the
defendant was indicted on charges including assault and battery
by means of a dangerous weapon and assault and battery.

     "The trial judge properly gave an instruction on deadly
     force when he charged the jury on the law of self-defense
     regarding assault and battery by means of a dangerous
     weapon. Nevertheless, the judge used the same deadly force
     instruction that he had given for assault and battery by
     means of a dangerous weapon when he charged the jury on the
     law of self-defense for simple assault and battery. Thus,
     the judge charged the jury on deadly force when he should
     have given an instruction on self-defense relating to
     nondeadly force. See Commonwealth v. Bastarache, [382
     Mass. 86, 105 (1980)]. As a result, the judge's
     instruction lowered the Commonwealth's burden of proving
     that the defendant did not act in self-defense in relation
     to the assault and battery charge. Instead of having to
     prove that the defendant did not have a reasonable concern

     3 We can conceive of no tactical reason for trial counsel's
failure to object to the omission of a nondeadly force
instruction.

     4 This is not a case where the conduct might be excused or
justified, such as, for example, a touching that might occur
during medical examination or rescue. See Commonwealth v.
Oberle, 476 Mass. 539, 548 n.5 (2017).
                                                                   5


    over his own safety, see id. at 105 n.15, the Commonwealth
    only had to prove that the defendant did not have a
    reasonable belief that he was being attacked and in
    imminent danger of death or serious bodily injury, or that
    he did not use all reasonable efforts to avoid combat, or
    that he used greater force than was reasonably necessary to
    defend himself. Commonwealth v. Harrington, 379 Mass. 446,
    450 (1980). We conclude, therefore, that the trial judge's
    instruction on self-defense relating to the assault and
    battery charge constitutes reversible error because a jury
    convicted the defendant of assault and battery."
    (Footnotes omitted.)

Baseler, 419 Mass. at 503-504. Likewise, in this case, the
trial judge instructed only on deadly force when he charged on
the law of "proper self-defense." That instruction preceded the
instruction on attempted murder by strangulation, and the term
"proper self-defense" was repeated (without further instruction)
at the end of both the attempted murder and the assault and
battery instructions. Based on the instructions, the jury
reasonably would have understood that the defendant did not act
in "proper self-defense" if the Commonwealth proved he did not
have a reasonable belief that he was in imminent danger of death
or serious bodily harm. Like in Baseler, supra at 504, the
omission of the nondeadly force component of self-defense
effectively lowered the Commonwealth's burden of proof as to
self-defense, given that the Commonwealth did not have to
demonstrate that the defendant did not have a "reasonable
concern over his own safety" before touching the complainant.

     Conclusion. The failure to provide a nondeadly force self-
defense instruction lowered the Commonwealth's burden to prove
the absence of proper self-defense. Where the defendant was
acquitted of the most serious charges against him, and where the
evidence on all the charges depended heavily on the credibility
of the testimony of both the defendant and the complainant, we
are satisfied that the absence of such an instruction created a
substantial risk of a miscarriage of justice. The judgment of
conviction on the assault and battery charge is therefore
reversed, the verdict is set aside as to that, and the matter is
remanded for a new trial on that charge.

                                   So ordered.
                                                              6


     Thomas C. Foley for the defendant.
     Johanna S. Black, Assistant District Attorney, for the
Commonwealth.
