Opinion
20-P-909
02-10-2022
COMMONWEALTH v. JOSEPH WILLIAM BELANGER.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
Following a jury trial in the District Court, the defendant, Joseph William Belanger, was convicted of assault and battery, in violation of G. L. c. 265, § 13A. The sole issue on appeal is whether the judge erred by failing to give a defense of property instruction sua sponte. We affirm.
The defendant initially was charged with assault and battery on a household member, but the charge was amended to simple assault and battery prior to trial.
Background.
The jury could have found the following facts. On the afternoon of April 2, 2018, two women were in a car stopped at a red light behind a pick-up truck at an intersection in Woburn. The women noticed that the truck was "rocking back and forth" and observed the driver "pounding into the passenger," with his fist. The driver was subsequently identified as the defendant, and the victim, whom we shall call Sally, was the defendant's girlfriend with whom he had lived for many years. One of the women called 911 and reported the incident. When the defendant drove into a nearby parking lot, the women followed. Thereafter, they saw the defendant get out of the truck, open the passenger side door, and attempt to pull Sally out of the truck by her ankles. Ultimately, Sally got out of the truck and the defendant began to drive away, but he was stopped by the police before he left the parking lot. Sally, who was considerably smaller than the defendant, was "hysterically upset" and had a small laceration over one eyebrow. The defendant was also injured in the altercation; he had a large laceration on his neck.
The defendant testified at trial and denied hitting Sally while the two were in the truck. He stated that Sally was "agitated" and demanded money from him to buy drugs and that she began to kick him when the truck stopped at the red light. The defendant asserted that he blocked the blows with his hand in self-defense. The defendant acknowledged that, after he stopped the truck in the parking lot, he got out and "grabbed" Sally by her ankles but claimed that he did so because Sally would not leave the truck. According to the defendant, Sally did not get out of the truck until he gave her some money. The defendant also acknowledged that he had the keys to the truck throughout the entire incident.
Discussion.
The judge instructed the jury on self-defense as requested by the defendant. The defendant did not request an instruction on defense of property, nor did he object to the judge's omission of the instruction. He now claims that he is entitled to a new trial because the judge should have instructed the jury that the defendant had the right to protect his property, i.e., his pick-up truck, sua sponte. We review this claim under the standard of a substantial risk of a miscarriage of justice and conclude there was none. Commonwealth v. Peterson, 53 Mass.App.Ct. 388, 392 (2001).
An instruction on defense of property is warranted where the evidence, viewed in the light most favorable to the defendant, supports the proposition that the defendant had "the right to use limited force to defend personal property from theft or destruction." Commonwealth v. Haddock, 46 Mass.App.Ct. 246, 248 n.2 (1999). See Peterson, 53 Mass.App.Ct. at 392. Here, there was no evidence that Sally was attempting to steal or cause damage to the defendant's truck. Viewed in the light most favorable to the defendant, the evidence showed that Sally kicked the defendant, and then refused to get out of the truck. There was no evidence of damage to the truck, and the defendant admitted that he had the keys to the truck on his person the entire time. These facts do not support the proposition that the defendant had the right to grab Sally by the ankles to protect his truck and, as a result, an instruction on defense of property was not warranted.
Given our conclusion, we need not address the defendant's argument that we should require judges to give a defense of property instruction sua sponte if the evidence supports it.
Judgment affirmed.
The panelists are listed in order of seniority.