NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-522

COMMONWEALTH

vs.

BRIAN J. KELLIHER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was 

convicted of trafficking in cocaine, 100 grams or more but less 

than 200 grams, and possession with intent to distribute both

class B and class D substances. On appeal, he challenges the 

judge's failure to instruct the jury, sua sponte, on duress. We 

affirm.

Discussion. As relevant here, for a defendant to rely on 

the affirmative defense of duress, the evidence must show that 

there was "a present, immediate, and pending threat of such a 

nature as to induce a well-founded and reasonable fear of death 

or serious bodily injury if the criminal act is not done, with 

no reasonable and available chance of escape, and where no 

person of reasonable firmness could have acted otherwise in the 
2

circumstances."1 Commonwealth v. Vasquez, 462 Mass. 827, 832-833 

(2012). In assessing the adequacy of that showing in this case, 

we consider the evidence in its totality and in the light most 

favorable to the defendant. See Commonwealth v. Guardado, 491 

Mass. 666, 683 (2023), S.C., 493 Mass. 1 (2023); Commonwealth v. 

Melzer, 14 Mass. App. Ct. 174, 184 (1982) ("even if a criminal 

defendant gives incredible testimony, he is entitled to any 

instruction required upon the hypothesis that the testimony is 

true"). The defendant did not request an instruction on duress; 

to the extent that we discern error in the judge's failure to 

provide the duress instruction sua sponte, our review is for a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Freeman, 352 Mass. 556, 563-564 (1967).

Summarized in the light most favorable to the defendant,

see Guardado, 491 Mass. at 683, the evidence at trial showed 

that at the direction of a former friend, Darwin Soto, the 

defendant unwillingly participated for several months in a 

1 "The rationale of the defense [of duress] is not that the 

defendant, faced with the unnerving threat of harm unless he 

does an act which violates the literal language of the criminal 

law, somehow loses his mental capacity to commit the crime in 

question. Nor is it that the defendant has not engaged in a 

voluntary act. Rather it is that, even though he has done the 

act the crime requires and has the mental state which the crime 

requires, his conduct which violates the literal language of the 

criminal law is justified because he has thereby avoided a harm 

of greater magnitude." Commonwealth v. Vasquez, 462 Mass. 827, 

833 (2012), quoting United States v. LaFleur, 971 F.2d 200, 205 

(9th Cir. 1991), cert. denied, 507 U.S. 924 (1993).
3

scheme to distribute fentanyl and cocaine2 and that he did so

because he feared for his life and the safety of his family at 

the hands of Soto and Soto's drug suppliers. The defendant's

fear was based on three considerations: (1) his observation of 

a gun in a car used by a non-English speaking stranger to 

deliver drugs to the defendant during the summer of 2016 while 

Soto was in jail;3 (2) unspecified threats made to him by Soto in 

August or September 2017; and (3) his observation of a firearm 

in Soto's possession on an occasion in the same late summer 

timeframe in 2017.

For our purposes, the evidence established that Soto 

threatened the defendant and that the defendant continued to 

participate in the drug operation because he was afraid of Soto 

and Soto's suppliers. It did not, however, establish the 

defendant's entitlement to an instruction on duress because 

several elements of duress were not established in the evidence.4 

2 The defendant also possessed and sold marijuana by agreement 

with Soto although, at trial, he testified that he did so 

voluntarily.

3 The defendant testified that he was aware that he and Soto owed 

money to the people from whom Soto obtained the drugs that the 

defendant and Soto sold.

4 We assume without deciding that the defendant's voluntary 

participation in one facet of Soto's drug dealing (his selling 

marijuana to defray the cost of his own marijuana purchases from 

Soto) did not disqualify him from relying on duress as an 

affirmative defense to the indictments related to his role in 

selling cocaine and fentanyl. But see Vasquez, 462 Mass. at 833 

(duress "is not available to a person who recklessly puts 

himself in a position where coercion probably will be applied").
4

First, without any detail about the substance of the threats, 

the jury had no basis on which to determine whether the 

threatened harm met the "imminence requirement" under our law by 

showing that the harm was "near at hand" or "menacingly near." 

Commonwealth v. Perl, 50 Mass. App. Ct. 445, 448-449 (2000)

(quotation omitted). Contrast Commonwealth v. Robinson, 382 

Mass. 189, 192 (1981) (defense of duress available where 

codefendant responded to defendant's withdrawal from robbery 

plan by reentering defendant's car and discharging shotgun into 

car's interior door). To the extent that the defendant suggests 

that the jury could have inferred that the threat was both 

imminent and serious from the fact that the defendant "did not 

feel safe being involved" with Soto and was concerned for his 

family's safety, we do not agree. Analogizing to the 

affirmative defense of necessity, we consider the defense 

applicable only to threats of harm that are "imminent," not

those that are "debatable or speculative." See Commonwealth v. 

O'Kane, 53 Mass. App. Ct. 466, 470 (2001) (quotation omitted).

Second, in the absence of any evidence about the substance 

of Soto's threats, the threats and the defendant's observations 

of the firearms5 (in a stranger's car and in Soto's possession)

are insufficient to allow a judge or jury to assess whether the 

5 There was no evidence to suggest that Soto threatened the 

defendant with a gun, or that anyone else did so.
5

defendant's fears were "well-founded and reasonable," or 

whether, in context, "no person of reasonable firmness could 

have acted otherwise in the circumstances."6 Vasquez, 462 Mass. 

at 832-833. Contrast Perl, 50 Mass. App. Ct. at 446 (defense of 

duress available where defendant subjected to threats against 

his daughter accompanied by maker's miming strangling movements, 

"wav[ing] a gun in front of the defendant's nose," and 

indicating intention to set "large dog" then in his car on the 

daughter).

Third, even if we were to conclude (which we do not) that 

the evidence established that the defendant's ongoing 

participation in the drug operation was the result of his "wellfounded and reasonable fear" of an imminent threat of harm by 

Soto or his suppliers, we are not persuaded that the evidence 

could support a finding that the defendant lacked a "reasonable 

and available chance of escape." Vasquez, 462 Mass. at 832-833. 

See Perl, 50 Mass. App. Ct. at 449-450. "By linking the 

imminency of harm and the possibility of escape, we advance, as 

matter of policy, the proposition that a threatened person, 

given the opportunity, must utilize available law enforcement 

6 We are not blind to the inherent dangers involved in drug 

trafficking or in the possession of illicit drugs. A 

participant's fear on general principles of being harmed by 

other drug dealers does not, however, require a sua sponte 

instruction on duress.
6

resources to avoid committing a serious crime, provided those 

resources reasonably may be relied upon in the circumstances to 

protect him and any other threatened person." Perl, supra at 

450.

Soto's threats were made in August or September 2017 and 

the defendant's observations of the two firearms about which he 

testified had been made by that time. Despite having a home 

apart from Soto's, a telephone, a vehicle, and a family member 

who was an attorney, the defendant made no effort to contact the 

police for help, either when the threats were made or in the 

months that followed.7 Where the defendant had an available 

avenue of escape from participation in Soto's operation, but 

"did not want to" avail himself of it and did not do so, he was 

not entitled to rely on the affirmative defense of duress. See 

Melzer, 14 Mass. App. Ct. at 184, 185 (defendant not entitled to 

duress instruction where uncontested evidence revealed 

defendant's coercers left him alone for "at least a half an hour 

in the middle of a continuing criminal episode"; facts did not 

show that defendant lacked opportunity to escape). Contrast 

Robinson, 382 Mass. at 192 (judge obligated to instruct on 

7 Further, as demonstrated by the defendant's immediate 

cooperation with the police, including his provision of a 

detailed statement about the drug operation, nothing in the 

evidence suggested that the defendant had reason to doubt that 

the police could or would help him to escape from Soto and his 

other associates. See Perl, 50 Mass. App. Ct. at 450.
7

duress where evidence included defendant's testimony that he 

participated in crime because he "couldn't see anything else to 

do" after codefendant responded to his effort to withdraw by 

firing shotgun inside defendant's car).

We are satisfied that, in this case, the judge did not err 

by failing to instruct the jury on duress.

Judgments affirmed.

By the Court (Blake, 

Massing & Hand, JJ.8),

Clerk

Entered: November 15, 2023.

8 The panelists are listed in order of seniority.