noting the jury "received multiple versions of the instructions over two days”
How later courts described this case
- noting the jury "received multiple versions of the instructions over two days”
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). Apart from the troubling fact that a manslaughter instruction was neither given nor requested, I am of opinion that this case can be affirmed simply on the basis of the defendant’s status as the initial aggressive user of deadly force — a handgun. 1 Neither the defense of another nor the failure to retreat, in my view, enters into the calculus.
As an additional aside, I think the judge’s handling of the peremptory challenge issue would have been more efficacious if he had followed the teachings of Commonwealth v. Futch, 38 Mass. App. Ct. 174, 177-178 (1995), and cases cited therein.
kfiie teaching point here is “sticks and stones” may break bones, but a loaded handgun will very likely kill a person.