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22

- P

- 1036 Appeals Court

COMMONWEALTH vs . JEFFREY WHITE

.

No. 22

- P

- 1036.

Worcester. September 14, 2023.

– January 9 , 2024

.
Present: Wolohojian, Shin, & Ditkoff, JJ.

Assault and Battery

. Practice, Criminal , Request for jury instructions. Self

- Defense

. Evidence , Self

- defense , Credibility of witness

. Witness , Credibility. Abuse Prevention

.

C omplaint received and sworn to in the Worcester Division of the District Court Department on May 6, 2021.

The case was tried before Andrew J. Abdella , J.

Ann Grant , Committee for Public Counsel Services, for the defendant. Danielle E. Borges , Assistant District Attorney, for the Commonwealth.

DITKOFF, J. The defendant, Jeffrey White, appeals from his

conviction, after a jury trial in the District Court, of assault

and battery on a family or household member, G. L. c. 265 ,2

§ 13M ( a ). 1 We conclude the trial judge erred in denying the

defendant's request for an instruction on self

- defense, as t he

defendant testi fied that he pushed the victim away and fled

while she was coming towards him with a broken beer bottle after

hitting him with a dog leash

. Further concluding that evidence

that the victim obtained an abuse prevention order subsequent to

the criminal acts charged functioned as inadmissible evidence

that the victim repeated her allegatio ns and that a judge

believed her, we vacate the judgment

.

1. Background . a. The Commonwealth's case

. The fifty

seven year old victim and the fifty year old defendant had been

living together and in a romantic relationship for approximately

fifteen years. The relationship "went downhill" when the

defendant started cheating on the victim. On the evening of May

5 , 2021, the defendant and the victim "started arguing," and the

defendant

-- who was th e only person named on the lease

--

instructed the victim to leave. When she refused, he told her ,
"You're going to jail today," left the house, and called the

police.

When the defendant returned to the house, the couple

"started arguing, and he launched at [the victim] and knocked

[her] on the floor and started strangling [her]." The victim

1 The jury acquitted the defendant of strangulation or suffocation, G

. L

. c. 265 , § 15D ( b ).3

wrestled with the defendant, eventually got away, and called the

police herself.

The responding officer interviewed the defendant, who told

the officer that the vic tim threatened him "with a bottle going

toward a knife" and hit him with a dog leash. He stated that

"he was threatened, and then eventually he ended up p ushing her

and grabbing at her jacket around the neck." The officer

observed that the defendant appe ared uninjured and the victim

had "reddish marks around her neck."

The following morning, the victim went to the same District

Court and applied for an abuse prevention order against the

defendant "in front of a judge

. " Over objection, the victim

testifi ed that she obtained the order. Also over objection, t he

order was admitted in evidence

. The exhibit consist s of the

initial order , which was granted on May 6, 2021, and signed by a

judge, and a subsequent extension of that order, which was

granted on Ma y 24, 2021, and signed by a judge. At the top of

the first page, the exhibit showed that the judge had checked

the box next to a preprinted statement that the order was

"issued without advance notice because the Court determined that

there is a substantia l likelihood of immediate danger of abuse."

The judge ordered the defendant "not to abuse the [victim] by

harming, threatening or attempting to harm the [victim]

physically." The judge further ordered the defendant to "not4

contact the [victim]

. . . [and] to immediately leave and stay

away from the [victim's] residen ce ."

b. The defendant's case . The defendant testified that he

and the victim had broken up a year prior to the incident but he

had been allowing her to live in the house . This did not sit

well with his new girlfriend, so he told the victim that she had

to find a new place to stay w ithin two months. He then

discovered that the victim had posted on the social networking

w ebsite Facebook that he was a child molester , so he told her

she had to leave that night. "She grabbed a beer bottle, broke

the beer bottle on the side of the bed, and told [him] t hat she

wasn't going anywhere, that she was staying there." The

defendant went downstairs, and the victim " followed [him] with

the beer bottle in her hand

. " While the defendant and the

victim were in the kitchen, the victim grabbed a thic k metal dog

leash off the counter and hit the defendant's shoulder with it

.

The defendant then noticed that the victim looked at a knife

that was on the counter and, as she was approaching him, " [ s ] he

went to reach for the knife." A t this point the defen dant

" grabbed her by the collar " and " pushed her away. " The

defendant went outside and called the police

.

2. Self

- d efense

. Where, as here, nondeadly force i s 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 a5

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 fo rce 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). "The eviden tiary threshold for a defendant seeking an

instruction on self

- defense is low, as it is the Commonwealth's

burden to prove that the defendant did not act in proper self

defense once the issue is raised." Commonwealth v. Ortega , 480

Mass. 603, 610 (2018). The issue is preserved, as the defendant

requested the instruction both in writing and orally. 2 See

Commonwealth v. Arias , 84 Mass. App. Ct. 454, 463 (2013) ("when

a judge refuses to give a requested instruction, a defendant's

rights are saved without t he necessity of a further objection").

"We therefore review to determine whether the failure to

instruct was error, and if it was, whether the error was

prejudicial." Commonwealth v. Graham , 62 Mass. App. Ct. 642,

651 (2004).

2 The defendant requested that the jury be instructed on self

- defense during the charge conference and again during jury deliberations when the jury asked whether "it [is] reasonable to factor self

- defense in the assessment of guilt within the legal definition of assault."6

Viewing the evidence in the light most favorable to the

defense of self

- defense , see Commonwealth v. Tirado , 65 Mass.

App. Ct. 571, 574 (2006) , we conclude t he defendant was entitled

to a self

- defense instruction. Here, according to the

defendant's testimony, the defendant tried to leave when the

victim threatened him with a broken beer bottle, but the victim

followed him with the beer bottle and then hit him with a heavy,

metal chain dog leash

. When she reached for a knife, 3 he pushed

her away and fled. On this evidence, a jury could find that the

defendant had a reasonable fear for his safety as the person who

had just struck him was armed with a broken beer bottle and was

reaching for a knife. See Commonwealth v. Galvin , 56 Mass. App.

Ct. 698, 700 (2002) (defendant's t estimony that victim attacked

her and was shoving her face adequate to raise reasonable doubt

that defendant "had a reasonable concern for her physical

safety"). Similarly, a jury could find that the defendant, who

3 The defendant testified both on direct examination and on

cross
- examination that the victim reached for the knife and told the responding off icer that she "went for a knife." We reject the Commonwealth's argument that, because the defendant also testified that he "saw her look at the knife," the jury had to find that she did not attempt to grab it. Putting aside the obvious truth that it woul d be difficult to reach for an item without looking at it, we consider the evidence in the light most favorable to the defense of self

- defense, not (as the Commonwealth urges) in the light most favorable to the Commonwealth. See Tirado , 65 Mass. App. Ct. at 574 (defendant is entitled to self

- defense instruction "[w]hen any view of the evidence suggests that [the] defendant may have acted in self

defense").7

had already tried to retreat only to hav e the victim follow him ,

had availed himself of all reasonable means of retreat. See

Commonwealth v. Benoit , 452 Mass. 212, 227 (2008), quoting

Commonwealth v. Pike , 428 Mass. 393, 398 (1998) ("This rule does

not impose an absolute duty to retreat regardl ess of personal

safety considerations; an individual need not place himself in

danger nor use every means of escape short of death before

resorting to self

- defense"). The Commonwealth, quite properly,

does not contest the proposition that a simple push in response

to being threatened with a broken beer bottle and a knife was a

proportionate response. Accordingly, we conclude that the

failure to instruct on self

- defense constituted reversible

error.

3

. Admission of the a buse prevention order

. Because th e

defendant objected to the admission of the abuse prevention

order and the victim's testimony that she obtained it , we review

for prejudicial error. See Commonwealth v. Cruz , 445 Mass. 589,

591 (2005). " An error is not prejudicial if it did not

influence the jury, or had but very slight effect."

Commonwealth v. Souza , 492 Mass. 615, 627 (2023), quoting

Commonwealth v. Wolfe , 478 Mass. 142, 150 (2017)

. To be sure,

in other cases, the issuance of an abuse prevention order may be

relevant and important evidence. See , e.g., Commonwealth v.

Rintala , 488 Mass. 421, 446 (2021) (existence of abuse8

prevention order s obtained prior to murder " relevant an d

admissible to show motive and the hostile nature of the

relationship between the defendant and the victi m");

C ommonwealth v. Sharpe , 4 54 Mass. 135 , 144

- 145 (200 9 ) ( four

abuse prevention orders obtained by victim admissible to

demonstrate existence of hostile relationship and motive to

kill) ; Commonwealth v. Butler , 445 Mass. 568, 575 (2005) ( prior

issuance of order s admissible in assault and battery prosecution

to demonstrate existence of "a continuous hostile

relationship") ; Commonwealth v. Gonsalves , 99 Mass. App. Ct.

638, 640 (2021) ( existe nce of order admissible in prosecution

for stalking in violation of abuse prevention order) ;

Commonwealth v. Watson , 94 Mass. App. Ct. 244, 245 (2018) (abuse

prevention order admitted in prosecution for violation of that

order)

.

Here, however , the Comm onwealth d id not need to establish

the existence of an abuse prevention order as an element of the

crime or to show the nature of the relationship prior to the

crime

. Rather , the abuse prevention order had no use s other

than to show that the victim repeated her allegations and that a

judge believed her. It is not proper to show a witness's

credibility by demonstrating that someone else believed (or, for

that matter, disbelieved) the witness

.9

The error is particularly significant here, as "[t]he

judicial imprimatur on the [abuse prevention] order lends it

significant weight

. This is not just a f iling in court but a

determination by the court." Commonwealth v. Foreman , 52 Mass.

App. Ct. 510, 515 (2001). Such an error effectively informs the

jury "that a judge had already reviewed the facts and decided

the credibility dispute that the jury were being asked to

consider." Id

.
Indeed, it is difficult to understand why even the fact

that the victim requested an abuse prevention order was

admissible here

. "Prior consistent statements are ' generally

inadmissible to corroborate in

- court testimony or a witness's

credibility. ' " Commonwealth v. Lessieur , 472 Mass. 317, 323,

cert. denied, 577 U.S. 963 (2015), quoting Commonwealth v.

Saarela , 376 Mass. 720, 722 (1978). Requests for a buse

prevention orders "fall within the general rule precluding prior

consistent statements. " Foreman , 52 Mass. App. Ct. at 513.

To be sure, "the use of prior consistent statements to

rehabilitate a witness is permissible when a court finds that a

party has claimed that a witness's in

- court testimony is the

result of recent contrivance or bias, so long as the prior

consistent statement was made before the witness had a motive to

fabricate or the occurrence of an event indicating a bias. "

Commonwealth v. Morales , 483 Mass. 676, 678 (2019), quoting10

Commonwealth v
. Caruso , 476 Mass. 275, 284 n.5 (2017). Accord

Foreman , 52 Mass. App. Ct. at 514 ( limited testimony that

witness sought and obtained abuse prevention order may be

justified to rehabilitate witness). Here, however, there was no

suggestion that the victim's motive to fabricate arose after the

request for the abuse prevention order. The defendant request ed

that the victim move out of the house , called the police to

remove her , and described to the police an assault by the victim

prior to her request for the abuse prevention order

. S ee i d

. at

513 ("defendant's rejection of [the victim] predated all of [the

victim's] differing descriptions of the assault and battery at

trial, including those contained in the [abuse prevention order]

documents").

Although the Commonwealth questions the prejud icial effect

of the evidence regarding the abuse prevention order, the

Commonwealth quite properly makes no argument that the omission

of the self

- defense instruction , if error, was not prejudicial.

Accordingly, we need not reach the question whether the improper

admission of the evidence regarding the abuse prevention order,

standing alone, would require reversal of the conviction. See

Commonwealth v. Santos , 46 0 Ma ss. 128 , 138 n. 12 (201 1 ). 4

4 As the defendant points out, the nonresponsive testimony of the responding office r that he " came to a conclusion of the main aggressor in the situation, which was I came to a conclusion that it was the male, Jeffrey White" was improper

.11

4

. Conclusion

. The judgmen t is vacated , and the verdict

is set aside. The matter is remanded to the District Court for

such further proceedings as may be appropriate.

So ordered

.

See Commonwealth v. Quinn , 469 Mass. 641, 646 (2014). We pre sume that, in the event of retrial , the officer will be instructed not to repeat this testimony.