In Commonwealth v. Allen No. 08-P-2112 12/14/2009, the appeals court affirmed the conviction of Mr. Allen for assault by means of a dangerous weapon. They also ruled he was not entitled to a jury instruction on use of non-deadly force for self defense purposes.
The case began as the victim reported his saxophone missing, “Scovacricchi called friends and family members to lament his loss, and made arrangements with a friend to go out to dinner. As the pair passed Symphony Hall on their way to the restaurant, Scovacricchi’s companion directed his attention to the defendant, who was waiting at a bus stop with Scovacricchi’s bright red case hanging from his shoulder. Scovacricchi confronted the defendant and informed him that the saxophone was his. In response, the defendant asserted that he had purchased the saxophone earlier that day. Scovacricchi grabbed the handle of the red case, and a tugging match ensued. Two occurrences combined to end the scuffle. First, the defendant slowly pulled a folded knife from his pocket, unfolded it, and moved it in Scovacricchi’s direction, in an attempt to hit the hand with which Scovacricchi grasped the handle to the saxophone case; that act led Scovacricchi to relinquish his grasp. …police officers from a paid detail at Symphony Hall arrived on the scene and placed the defendant under arrest.
The defendant was tried before a jury in the Boston Municipal Court, and was convicted on a charge of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B. [FN2] The defendant’s appeal presents the question whether the defendant was entitled to a jury instruction on the use of nondeadly force in self-defense. [FN3]
“[A] self-defense instruction must be given when deadly force was used only if the evidence, viewed in the light most favorable to the defendant, permits at least a reasonable doubt *11 that the defendant reasonably and actually believed that he was in ‘imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.’ ” Commonwealth v. Pike, 428 Mass. 393, 396 (1998), quoting from Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). “Where the level of force cannot be determined as a matter of law, . . . instructions on both the use of deadly force and nondeadly force must be given.” Commonwealth v. Walker, 443 Mass. 213, 217 (2005). The defendant argues that the evidence in the present case raised a question of fact, to be resolved by the jury, whether the defendant’s use of the knife constituted the use of deadly or nondeadly force. Accordingly, the defendant claims error in the form of the judge’s instruction on self-defense which, the defendant contends, limited the jury’s consideration to whether the defendant was justified to use deadly force in self-defense. [FN4] We agree with the Commonwealth that the defendant was not entitled to an instruction on self-defense by means of deadly force, because the evidence establishes that the defendant could not reasonably have believed himself to be in imminent danger of death or serious bodily injury at the hand of his unarmed, albeit larger, assailant. See Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 554-555 (2006).
The issue of jury instructions aside, I would like to know how our Governor expects a Flagman to react to this type of situation?