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 partie s 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 deci sion 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

- 52 2

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 th a n 200 grams , and possession with intent to distribute both class B and class D substance s . On appeal, he challenges the judge's failure to instruct the jury, sua sponte, on duress. W e 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 the2 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;
t o the extent that we discern error in the judge's failure to provid e 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 (19 6 7). Summarized in the light most favorable to the defendant ,

see Guardado , 491 Mass. at 683, th e 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 ra tionale 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 justi fied 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 cocaine 2 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 su mmer of 2016 while Soto was in jail ; 3 (2) unspecified threats made to him by Soto in August or September 201 7 ; and (3) his observation of a firearm in Soto's possession on an occasion in the same late summer timeframe in 201 7
. For our purposes, the evide nce 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 du ress because several elements of duress were not established in the evidence

. 4

2 The defendant also possessed an d 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 purc hases 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 ( d uress " is not available to a person who recklessly puts hi mself 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 thre atened 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 inferr ed 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 firearms 5 (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 agains t 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
t he evidence establishe d th at the defendant's ongoing participation in the drug operation was the result of his "well

founded 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 imminenc y of harm and the possibility of escape, we advance, as matter of p olicy, 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 p ossession 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 201 7 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 tele phone, a vehicle, and a family member who was a n 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 1 84 , 185 (defendant n ot 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). Contra st 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. A pp. 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 s hotgun 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.