# Commonwealth v. Arias

> Massachusetts Appeals Court · October 30, 2013 · 84 Mass. App. Ct. 454

URL: https://www.frixlaw.com/law-library/cases/6464510

## Case

- **Full name:** Commonwealth v. Randy Arias
- **Court:** Massachusetts Appeals Court
- **Decided:** October 30, 2013
- **Citations:** 84 Mass. App. Ct. 454; 997 N.E.2d 1200; 2013 Mass. App. LEXIS 163
- **Precedential status:** Published
- **Opinion:** Dissent by Sullivan
- **Judges:** Meade, Sullivan
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Sullivan, J.
(dissenting). Although the defense argued to the jury was identification, the defendant never conceded his alternative theories of defense of another and use of excessive force in defense of another. Because he requested instructions on these defenses, and because intent is always for the jury in murder cases, the issue of intent remained a “live issue” at his trial for murder in the first degree. See Commonwealth v. Repoza, 400 Mass. 516 , 522 n.7 (1987); G. L. c. 265, § 1. The instructions on defense of another and the use of excessive force in defense of another did not inform the jury that the use of excessive force in defense of another permitted a conviction of manslaughter rather than murder. Whether viewed as preserved or unpreserved error, the omissions in the instructions were systemic in a case where the evidence put intent at issue and the jury were still required, once they rejected the identification defense, to decide the degree of culpability. Accordingly there is, at the very minimum, “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quot *470 ing from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). I therefore respectfully dissent.
1. Background. The Commonwealth’s theory at trial was that the defendant shot Julio Zuniga in cold blood and threatened Frederich Frias in a subsequent telephone call to procure his cooperation. The defense theory, as argued to the jury, was that Frias’s cousin, Edward Rosario, was the shooter; that Rosario shot Zuniga to protect Frias; and that Frias was lying about the shooting and the telephone call to protect his cousin, Rosario. The jury rejected both the prosecution and the defense theories, finding that the defendant was the shooter, but that the shooting was not premeditated. On appeal, the issue is no longer whether the defendant was the shooter, a finding for which there was a clear basis in the evidence, as the majority’s summary of the evidence amply demonstrates. Rather, the issue is whether intent remained a live issue, and if so, whether incorrect instructions resulted in error requiring that the judgments be vacated.
Viewing the evidence in the light most favorable to the defendant, the evidence plainly raised the issue of intent and was sufficient to support the instructions on defense of another and use of excessive force in defense of another. 1 See generally Commonwealth v. Johnson, 412 Mass. 368, 372-373 (1992). The shooting took place after a fight broke out in which Frias was on the ground being beaten and kicked in the head. In his own words, after he fell to the ground, “everyone” began to hit or “stomp” him in the face, head, ribs, and body some twenty to thirty times. 2 Sugeilly Perez, a bystander, also testified that she *471 could see the fight, that a group of four men fought with Frias and another man, and that Frias was being kicked on the ground by “all of them.” Frias heard the gunshots while he was on the ground, that is, while he was under attack. The Commonwealth agreed at trial that the instructions were warranted, and the judge so found. Accordingly, this appeal must be evaluated in the following context: that the defendant was entitled to the instructions, that the instructions were requested, and that the evidence of intent, use of excessive force, and defense of another was contested.
2. Instructions. During the charge conference, the defendant requested that the judge give the Model Jury Instructions on Homicide (1999) regarding self-defense, defense of another, and use of excessive force in self-defense, which the defendant had edited to emphasize the defense of another. The judge agreed to give an instruction, but took the requests, which were in writing, under advisement.
The next day, when charging the jury, the judge did not give the instructions requested but did instruct on self-defense, defense of another, and use of excessive force after he instructed on murder in the first degree and before he instructed on manslaughter. 3 In an effort that presaged the 2013 revisions to the Model Jury Instructions on Homicide, the judge also attempted to modify the model instructions by making parallel references to both self-defense and defense of another when he described the jury’s obligation to acquit if the Commonwealth failed to *472 prove that the defendant did not act in self-defense or defense of another.
However, when instructing the jury on the circumstances in which the use of excessive force would result in a conviction of manslaughter rather than murder, the judge referred only to the use of excessive force in self-defense, omitting any reference to defense of another. At no time during the instructions were the jury told that the use of excessive force in defense of another would reduce the crime from murder to manslaughter. 4 In addition, the judge gave an instruction defining self-defense, but did not give the instruction defining defense of another that the defendant had requested. Instead, the judge told the jury that deadly force could be used in defense of another, and that defense of another “mirrored” self-defense.
In his final instruction to the jury, as he reviewed the verdict slip for manslaughter, the judge again instructed on heat of passion induced by sudden combat as a mitigating factor reducing a verdict to manslaughter, but did not address the use of excessive force in self-defense or defense of another as basis for reducing a verdict from murder in the second degree to manslaughter. See note 4, supra. Moreover, he instructed the jury that if the Commonwealth failed to prove self-defense or defense of another, the defendant was guilty of manslaughter. 5 *473 The final instruction was therefore infirm in two respects. First, the judge should have inserted the words “lack of” before the reference to self-defense and defense of another, and second, self-defense and defense of another are complete defenses, not mitigating factors. See Commonwealth v. Johnson , 412 Mass, at 372-373; Commonwealth v. Santos, 454 Mass. 770, 774 (2009). Thus, in addition to being deficient with respect to the use of excessive force, the judge’s final words on manslaughter and the use of excessive force in defense of another were erroneous and contradicted the earlier instruction on the same subject. 6 Compare Commonwealth v. Young, 461 Mass. 198, 210 (2012).
3. Live issue. In a prosecution for murder, “[t]he degree of murder shall be found by the jury.” G. L. c. 265, § 1. Despite the fact that the primary issue argued to the jury was identification, “under our statute, there is always an element of intent for the jury to determine in murder cases in which the defendant does not concede that a conviction of murder in the first or second degree would be warranted if the proper person were prosecuted. See, e.g., Commonwealth v. Lee, 383 Mass. 507, 512 (1981).” Commonwealth v. Repoza , 400 Mass, at 522 n.7. In Commonwealth v. Repoza , the Supreme Judicial Court reversed a conviction for second degree murder in which identification, “was the pivotal element at trial,” but an erroneous instruction, to which there was no objection, shifted the burden of proof on intent. Ibid. Where, as here, the evidence places self-defense or defense of another in play, it remains for the jury to decide whether the defendant is guilty of murder in the first degree, second degree or manslaughter, even where the main contested issue at trial is identification. Here, the defendant also did not concede intent, and requested instructions on his altema *474 live theory of defense of another. Contrast Commonwealth v. Norris, 462 Mass. 131, 142-143 (2012). Counsel’s decision to argue the evidence of identification before the jury and “leave the discussion of the law to the judge” was permitted and reasonable. Cf. Commonwealth v. Callahan, 401 Mass. 627, 636 (1988); Commonwealth v. Stockwell, 426 Mass. 17, 22 (1997). By arguing identification, the defendant did not give up his right to have the issue of intent decided by the jury under a proper instruction. Intent remained a live issue. Commonwealth v. Repoza, supra; Commonwealth v. Callahan, supra. 7
4. Standard of review. This case presents a close and difficult question of preservation, made all the more difficult by the fact that there was enormous effort by a conscientious judge and conscientious counsel (on both sides) to craft fair instructions and preserve the defendant’s rights to appellate review. At the close of the instructions the defendant reiterated his request for his written instructions, and the judge interrupted to assure him that his rights were saved. 8 No further objection was made as to the issues argued on appeal.
The exchange thus pitted two well-honed principles of law directly against one another. The first is the requirement of postcharge objection. See Commonwealth v. Chapman, 433 Mass. 481, 489 (2001). 9 The second is the degree to which the defendant may rely upon a judge’s assurances that his rights are *475 “saved.” See Commonwealth v. Aviles, 461 Mass. 60, 66 (2011); Commonwealth v. Jones, 464 Mass. 16 , 19 & n.4 (2012). It is not necessary to decide whether the error was preserved, however, because, in my view, even if one treats the error as unpreserved, and analyzes it under this more exacting standard, there is still a “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Acevedo, 446 Mass. 435, 450 (2006), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
5. Error in the instructions, a. Use of excessive force in defense of another. The conviction must be reversed if there was error in the instructions on the use of the use of excessive force in defense of another that created a substantial risk of miscarriage of justice. See Commonwealth v. Grant, 49 Mass. App. Ct. 169, 172 (2000) (although primary issue at trial was self-defense, erroneous instruction on provocation created substantial risk of miscarriage of justice where evidence at trial raised issue of provocation). Cf. Commonwealth v. Carlino, 429 Mass. 692, 694 (1999); Commonwealth v. LaPage, 435 Mass. 480, 486 (2001) (substantial likelihood of miscarriage of justice following conviction of murder in first degree where defendant’s principal defense was self-defense, but there was “sufficient evidence that obligated the judge to instruct the jury correctly on provocation”). See generally Commonwealth v. Chotain, 31 Mass. App. Ct. 336, 341 (1991). 10
Once the identification defense was rejected, the “degree of criminal liability” was the primary issue for the jury. Commonwealth v. Johnson , 412 Mass, at 373. The Commonwealth bore the burden of disproving the use of excessive force in *476 defense of another beyond a reasonable doubt. “The jury should . . . have been told that, if the defendant used excessive force in an otherwise appropriate exercise of . . . defense of another, ... if death resulted from the use of excessive force, he should be found guilty of manslaughter.” Commonwealth v. Carlino , 429 Mass, at 694. The lack of instruction regarding the use of excessive force in defense of another left the jury with “no correct understanding” of mitigation, Commonwealth v. Johnson, supra, with the result that the jury were “given the option of considering that a murder ha[d] been committed.” Commonwealth v. Santos , 454 Mass, at 776. Cf. Commonwealth v. Bolling, 462 Mass. 440, 452 (2012) (lack of instruction on element of case relieved Commonwealth of burden of proof and created substantial risk of miscarriage of justice).
The majority concludes that the omission was immaterial because the instruction adequately conveyed, and the jury understood, that all aspects of the instruction on self-defense applied to both self-defense and defense of another equally. 11 The judge did not use the terms interchangeably. He used both terms when instructing on the circumstances where the appropriate use of self-defense or defense of another required acquittal. He did instruct on the use of excessive force in self-defense. He did not do so, however, when instructing on the mitigating impact of use of excessive force in defense of another. Thus, the instruction differentiated between the use of excessive force in self-defense and the use of excessive force in defense of another. The jury were thrice told that use of excessive force in self-defense reduced the offense from murder to manslaughter, but were not told that the same was true of the use of excessive force in defense of another.
A reasonable juror could have understood the use of exces *477 sive force instruction to mean what it said, that is, the excessive force instruction applied to self-defense, but not defense of another. 12 A reasonable juror might well be given the erroneous impression that the use of excessive force was in some manner less blameworthy and more likely to be excused in the context of self-defense (where a defendant is under personal attack) than in the situation where one person decides to go to the aid of another. This is not the law of the Commonwealth. See Commonwealth v. Young , 461 Mass, at 208-209. 13 “[T]he judge’s omission created the significant possibility that the defendant was erroneously convicted of murder in the [second] degree instead of manslaughter.” Commonwealth v. Boucher, 403 Mass. 659, 663 (1989).
b. Defining defense of another. The failure to give the requested instruction on defense of another, and thus define for the jury what defense of another meant, contributed to the risk of confusion and misdirection. Having been told that defense of another “mirrors” self-defense, the jury had no guidance as to what perspective to use in judging when deadly force was permitted — Frias’s perspective, the defendant’s perspective, or that of a reasonable person in the defendant’s position. Consistent with the case law, the requested instruction tracked the model instruction verbatim, stating that “[a] person may lawfully use a dangerous weapon (or deadly force) in defense of a third person when *478 a reasonable person in the actor’s position would believe that such intervention was necessary for the protection of the third person, and in the circumstances as that reasonable person would believe them to be, the third person would have been justified in using a dangerous weapon (or deadly force) to protect himself.” Model Jury Instructions on Homicide 58 (1999). See Commonwealth v. Martin, 369 Mass. 640, 649 (1976); Commonwealth v. Barbosa, 463 Mass. 116, 135-136 (2012). Had this instruction been given, the jury would have known that they were permitted to find the defendant guilty of manslaughter, not murder in the second degree, based on the defendant’s mistaken, though reasonable, belief that the victim of the attack (Frias) would have been entitled to use deadly force. See Commonwealth v. Young, supra at 209-210 & n.19; Commonwealth v. Norris , 462 Mass, at 141-143. 14
That distinction is material here, because the jury were instructed on self-defense, and there were facts in dispute concerning whether Frias was the first aggressor. See note 2, supra. If Frias was the first aggressor, Frias forfeited his right to self-defense. See Commonwealth v. Maguire, 375 Mass. 768, 772 (1978). It is not true, however, that defense of another was forfeited under these circumstances. If a jury found that a person in the defendant’s position reasonably but incorrectly believed Frias to be the victim of the attack, the defendant was entitled to maintain that he acted in defense of Frias. See Commonwealth v. Young , 461 Mass, at 209. To this extent, the defense of another does not “mirror” self-defense, and there was a substantial risk that jury may have been misled by the failure to define defense of another and to instruct on excessive force in defense of another. We cannot charge “the jury with knowing and understanding legal definitions” of concepts this complicated. Commonwealth v. LaPage , 435 Mass, at 487, n.8. This is not a case where there is “little chance that the jury misunderstood” an instruction that was otherwise clear in context. Commonwealth v. Clemente, 452 Mass. 295, 323 (2008). 15
*479 c. Instructions given on other offenses. The fact that the instruction on the use of excessive force in defense of another was (for the most part, see note 11, supra) correctly given in those portions of the charge dealing with assault with intent to murder Roberto Francisco Sanchez Rios does not mean the jury must have clearly understood the parameters of the defense with respect to murder in the second degree and manslaughter. This gloss on the instructions requires us to assume that the jury discounted the instructions on the murder charges and understood that the instructions on the offense of assault with intent to murder were to be imputed to the murder charges. “As [defense of another] was an issue in this case, and where we have no indication as to the rationale or process behind the jury’s decision, it would be inappropriate to speculate that they were not influenced by [the] flawed instruction.” Commonwealth v. McLaughlin, 433 Mass. 558, 563 (2001). Moreover, when the jury were properly instructed on the issue of use of excessive force in defense of another in relation to assault with intent to murder, they acquitted the defendant of that charge. Finally, the jury were instructed, in reference to the indictment on assault and battery causing substantial bodily injury, that the use of excessive force did not mitigate that crime in any respect. Thus, the jury were also clearly told to consider the mitigation issue separately for each offense.
The over-all impact on the jury of the correct instruction on a separate indictment charging assault with intent to murder cannot make up for the erroneous instructions on the murder charges. The one correct instruction was sandwiched between several incorrect ones, and the incorrect ones could only have misled the jury. See Commonwealth v. McLaughlin, supra at 562-563 ; Commonwealth v. Grant, 49 Mass. App. Ct. 172 . The incorrect *480 instructions were the last statement to the jury, and the incorrect standard was communicated repeatedly. Compare Commonwealth v. Young , 461 Mass, at 210-211. The instructions as a whole were confusing and internally inconsistent. “[T]he center of gravity of the . . . instructions was strongly on the side of misstatement.” Commonwealth v. Grant, supra, quoting from Commonwealth v. Acevedo , 427 Mass, at 717.
6. Substantial risk of miscarriage of justice. “Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice.” Commonwealth v. Randolph , 438 Mass, at 298, quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). The accounts of the melee were not one-sided. They were conflicting and fractured. The shooting occurred in the midst of a brawl in the early morning hours in which various witnesses, most of whom were combatants, saw bits and pieces, and had predetermined loyalties. There was evidence that Zuniga presented no threat at the time he was shot, but the Commonwealth also introduced evidence from which the jury could find that Frias was under attack by four men, including Zuniga, and that the defendant acted in Zuniga’s defense. The testimony regarding the defendant’s statement to Frias that the defendant “did it for [him],” if believed, may well have been utterly fatal to the defense of identification. But the same admission, if believed, could also have been viewed by the jury either as probative of intent or further evidence of defense of another. In short, the evidence of intent was in dispute, and resolution of that dispute hinged largely on credibility determinations. The jury had rejected the Commonwealth’s theory of premeditation based on their evaluation of the evidence of intent, and were left to sift through multiple and conflicting versions of events to determine what occurred. The “strength of the Commonwealth’s case” on the issue of defense of another and excessive use of force in defense of another was “not overwhelming.” Commonwealth v. Bolling , 462 Mass, at 452.
Conclusion. “Of course, ‘a clear miscarriage of justice has occurred if [the defendant] was guilty of manslaughter but is now serving the penalty for murder.’ ” Commonwealth v. McLaughlin , 433 Mass, at 564, quoting from Commonwealth v. *481 Richards, 384 Mass. 396, 405 (1981). Because I cannot say either that the errors in the instructions “did not influence the jury, or had but very slight effect,” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (preserved error), or that I have no “serious doubt whether the result of the trial might have been different had the error not been made,” Commonwealth v. Acevedo , 427 Mass, at 450, quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999) (unpreserved error), I respectfully dissent.
“Although the defendant at trial denied having assaulted the victim, for purposes of this argument on appeal he does not contest the jury’s finding that he was the assailant. We therefore ‘summarize!] the evidence in a light most favorable to the defendant, consistent with his having killed the victim.’ ” Commonwealth v. Medina, 430 Mass. 800 , 809 & n.11 (2000), quoting from Commonwealth v. Pitts, 403 Mass. 665 , 667 n.2 (1989).
The evidence was in conflict as to how the fight started and who started it. Frias said that he was with both the defendant and Rosario, talking on his cellular telephone to his girlfriend, who was at another club, and yelled at her, “You stupid fucking bitch.” At this point, according to Frias, the other men, apparently thinking that the yelling was directed to them, confronted Frias. A fight broke out. Frias claimed that a man swung at him and missed, and that he (Frias) then hit the other man. According to the other victim, Roberto Francisco Sanchez Rios, Frias threw the first punch.
“Although it is generally preferable to instruct on the elements of a defense to a crime after describing the elements of the crime, a specific order in jury instructions is not required.” Commonwealth v. Santiago, 425 Mass. 491, 506 (1997). The Model Jury Instructions on Homicide (1999), as then in effect, suggested that the model instruction on voluntary manslaughter be given immediately following the instruction on murder in the first and second degree. The judge, instead, instructed on self-defense and defense of another immediately following the instructions on murder in the first and second degree, and then turned to the manslaughter instruction. When instructing on manslaughter, he identified heat of passion induced by sudden combat as a mitigating factor, but did not state that excessive use of force in self-defense or defense of another were mitigating factors, as set forth in the model instruction on manslaughter. Thus, any error in the defense of another instruction was not ameliorated by the model instruction on manslaughter because the defense of another instruction was not mentioned in conjunction with the manslaughter instruction.
The judge first told the jury that “if the Commonwealth fails to prove to you . . . that the defendant did not act in self-defense but does prove to you beyond a reasonable doubt that he used excessive force in self-defense, then . . . the defendant would be guilty of the lesser included offense of manslaughter.” He then repeated the instruction, stating, “But if they fail to do that, if they fail to prove to you beyond a reasonable doubt the defendant was not acting in self-defense or not acting in defense of another, but do prove to you, the Commonwealth does prove beyond a reasonable doubt that the defendant used excessive force in self-defense, then the Commonwealth has proved the lesser included crime of manslaughter.” On a third occasion he stated, “But if the Commonwealth proves beyond a reasonable doubt that the defendant did exercise excessive use of force in self-defense, then the Commonwealth has proven that it was an unlawful killing, but has not proven malice, so it would be the lesser included offense of manslaughter.” With respect to mitigating circumstances that would reduce murder in the second degree to manslaughter, the judge next instructed the jury that the Commonwealth must also prove the absence of other mitigating circumstances, to wit, heat of passion induced by sudden combat. He did not, however, reference the use of excessive force as a mitigating circumstance again in the murder instructions.
“Guilty of manslaughter, that is, if the Commonwealth fails to prove to *473 you beyond a reasonable doubt self-defense or defense of another, or fails to prove a lack of heat of passion based on sudden combat, and you find manslaughter, that all twelve of you agree with that, you check that one off.”
There is no indication in the record that written jury instructions were provided to the jury. Although a blackboard was used by the judge, the record does not reflect what was written on it or that a chart was given to the jury. The statement of the Supreme Judicial Court accompanying the Model Jury Instructions on Homicide (2013) recommends that the judge provide jurors with a recording of the charge and a written copy of the charge where one is available, as well as the chalk titled “Requirements of Proof for Homicide” appended to the model instructions.
The Supreme Judicial Court’s decision in Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986), and this court’s decision in Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 565-566 (2006), see ante at 468, do not involve murder prosecutions or requests for instructions on an alternate theory of defense. In Mitchell, the issue implicated by the challenged instruction was not raised in any way by the facts.
At the conclusion of the instructions the defendant stated his objections, with the following response from the judge.
Defense counsel: “Yes, your Honor, I’ll just note for the record that I did file written instructions. And I’m not waiving any of those, but I’m just pointing out a couple of things.”
The court: “Good point.”
Defense counsel: “With respect to —”
The court: “Your rights are saved.”
In Commonwealth v. McDuffee, 379 Mass. 353, 357 (1979), and Com *475 monwealth v. Thomas, 439 Mass. 362, 371 (2003), see ante at 463-464, the judge did not tell the defendant that his rights were saved.
This case is distinguishable from those in which the improper instruction pertained to an issue that was conceded at trial, Commonwealth v. Neimic, 427 Mass. 718, 721-722 (1998); uncontested, Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 250 (2012); unsupported by the evidence, Commonwealth v. Medina , 430 Mass, at 809 n.11; or immaterial, because the defendant was also convicted of felony-murder, Commonwealth v. Smith, 459 Mass. 538, 548 (2011). Nor is this a case where the jury’s verdict or questions made it clear that the jury had rejected the claim of self-defense or defense of another, Commonwealth v. Torres, 420 Mass. 479, 492-493 (1995), or where the error in the instruction worked to the defendant’s benefit, Commonwealth v. Puleio, 394 Mass. 101, 108 (1985).
This contention might have had more force if the Model Jury Instructions on Homicide had been followed. As drafted in 1999, the model instructions contained an instruction on self-defense, followed by an instruction on defense of another. In the main, the 1999 model instructions refer to self-defense, followed by a single instruction on defense of another. Thus, under this formulation, the defense of another instruction was given only once and by general reference to all the previous references to self-defense. The revised Model Jury Instructions on Homicide, issued in 2013, contain the formulation sought by the trial judge here, that is, parallel references to both self-defense and defense of another throughout the instructions.
The majority states, ante at note 15, that review from the perspective of “possible misunderstandings by reasonable jurors” applies only to instructional errors that lower the Commonwealth’s burden of proof as to the elements of the offense, citing Commonwealth v. Smith , 427 Mass 245, 249 n.6 (1998), and Commonwealth v. Medina , 430 Mass at 804 n.4. These cases explore the difference between State and Federal standards on postconviction collateral review. Without wading into these waters, suffice it to say that on review of instructions on self-defense or defense of another, as to which the Commonwealth bears the burden of proof, our appellate courts have looked to what a reasonable juror would have thought, Commonwealth v. Young , 461 Mass, at 211, or could have misunderstood, Commonwealth v. Clemente, 452 Mass. 295, 323 (2008), or whether the jury were given an erroneous impression. See Commonwealth v. Johnson , 412 Mass, at 373; Commonwealth v. Britt, 465 Mass. 87, 96 (2013).
The doctrine of defense of another is recognized for policy reasons “to discourage indifference to the plight of strangers, an ill that had been exposed in that era by the murder of Kitty Genovese in 1964.” Commonwealth v. Young, supra.
The majority correctly points out that on appeal the defendant misconstrues this instruction to be an alter ego instruction and has based an appellate argument in part on this misinterpretation of the instruction and the law. Because the instruction was correctly framed below, I have based this analysis on the instruction as requested.
For this reason, reliance on Commonwealth v. Clemente, supra, see ante *479 at 466-467, is misplaced. In Clemente , the judge instructed the jury, “A person may not use excessive force when intervening on behalf of another person. The actor’s justification is lost if he uses excessive force.” 452 Mass, at. 322. The instruction, viewed in isolation, appeared to foreclose mitigation. However, the challenged instruction followed a complete instruction on self-defense, as well as the complete instruction on defense of another in accordance with the model instructions. “It was clear in context that the instruction on self-defense, including the instruction on excessive force in self-defense, applied equally to the subject of defense of another.” Ibid. This case involves the omission of the key instructions upon which Clemente relied, and a final instruction that erroneously stated the law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6464510. Public record. Not legal advice.