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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 felonymurder 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 felonymurder."

The court: "All right, this is what I don't understand 

about that position. Isn't manslaughter a defendantfriendly 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 selfdefense. 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 selfdefense 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 reinstructing 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 selfdefense.' 

"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 selfdefense."
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 felonymurder. 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 selfdefense." 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 selfdefense 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 selfdefense 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 selfdefense 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 selfdefense 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 selfdefense 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 felonymurder 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.