Commonwealth v. Leoner-Aguirre
Commonwealth v. Leoner-Aguirre
Opinion
*583 *581 Following a jury trial in the Superior Court, the defendant, Rafael Leoner-Aguirre, was convicted of numerous crimes stemming from a shooting in Chelsea. 2 He argued that he shot the victim in self-defense. On appeal, the defendant claims *582 that the judge erred when she instructed the jury that the defendant had a duty to retreat, and that the judge improperly shifted the burden of production to the defendant on whether a self-defense instruction was warranted by the evidence. We affirm.
Background . The jury were presented with the following evidence. On April 16, 2014, at approximately 2:30 P.M. , Javier Servellon and Amilcar Portillo were walking down Broadway Street in Chelsea. Two men, Josue Morales and the defendant, approached Servellon and Portillo because they believed Servellon and Portillo had stabbed their friend. A fight broke out, initiated by the defendant and Morales. Servellon believed that one of the attackers had a weapon and tried to run away. However, Servellon turned back because he did not want to leave Portillo alone with the attackers. While trying to help Portillo, Servellon tried to hit the attackers with an object. 3
During the fight, Portillo saw the defendant display a gun and heard him say, "Today I'm going to kill you." Servellon saw the defendant "brace the gun," and turned around to flee. The defendant fired two shots at Servellon, who was struck in the buttocks. The defendant later admitted to others that he had shot Servellon and showed the gun to them.
In connection with a police investigation of the shooting, the defendant told police that one of "two young men" had displayed a gun, and that the man tripped and dropped the gun during the altercation. The defendant explained that he was mad so he picked up the gun, shot it once, and then hid it in his bag.
At trial, the defendant testified that he shot Servellon but did so in self-defense. He explained that he had problems with Servellon in the past, and that when he saw Portillo and Servellon on the street, he thought Portillo had a weapon. He testified that Portillo dropped a gun and that he, the defendant, "picked it up," "put it away," and then "r[an] to fight Servellon." He testified that Servellon tried to hit him twice with a bike chain, and that on Servellon's *584 second attempt to hit him, he shot the gun at Servellon twice in self-defense.
At the close of the evidence, the defendant filed a motion for "a self-defense jury instruction." Over the objection of the Commonwealth, *583 the judge so instructed the jury. 4 The defendant did not object to the instruction as given.
Duty to retreat
. At the close of evidence, the judge, without objection, instructed the jury
5
that the defendant had a duty to retreat if he could do so in safety prior to using deadly force. On appeal, the defendant claims that "[t]he longstanding Massachusetts' duty to retreat rule, as an undue restriction of a fundamental right [to self-defense]," is unconstitutional. In support of his claim, the defendant relies on the holdings of
McDonald
v.
Chicago
,
In
Heller
,
*584 Here, the defendant was in a public place and in possession of an unlicensed handgun. Even assuming that the defendant had a constitutional right to use his firearm in self-defense if necessary, it did not give him, or anyone, the right to utilize a firearm in self-defense when it is unnecessary, for example, when one can safely retreat as required by the defense of self-defense under Massachusetts law.
In essence, the defendant is asking us to supplant centuries of common law that requires a defendant to retreat before using deadly force, see
*585
Monize
v.
Begaso
,
Barring some constitutional prohibition, States are free to adopt such laws. But Massachusetts has not, and nothing in Heller , McDonald , or the Second Amendment prohibits States from abiding by the long-standing rule that deadly force, including by the use of a firearm, may be used only when actually necessary in self-defense.
Nor does
Brown
,
On the merits of his self-defense claim, the defendant fares no better. "[T]he privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat."
Commonwealth
v.
Mercado
,
*586 Self-defense instruction and burden of proof . The defendant claims that the judge improperly shifted the burden of proof to him by stating that he must present evidence in order to receive a self-defense instruction, and that this essentially forced him to testify. There are no facts in the record to support this burden-shifting claim. Near the end of the Commonwealth's case, the judge cautioned that she was not likely to give a self-defense instruction absent some additional evidence from the defendant. 8 The defendant did not seek clarification, nor did he argue that he was entitled to the instruction based on the Commonwealth's case-in-chief. Rather, he raises the claims of burden shifting and compulsion to testify for the first time on appeal.
"A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present."
*586
Commonwealth
v.
Pike
,
Judgments affirmed .
The defendant was convicted of assault with intent to kill, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, two counts of assault and battery, possession of a firearm without a firearm identification (FID) card, and possession of a loaded firearm without an FID card.
Javier Servellon described the object as a big necklace or a chain. Portillo testified that the object was a rock, a brick, or a chain. A bystander described the object as a belt.
In his motion, the defendant refers to Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009). Nonetheless, this error has no bearing on the defendant's argument, as the judge correctly instructed the jury in accordance with § 5.4.1 of the Massachusetts Superior Court Criminal Practice Jury Instructions (2d ed. 2013).
Consistent with § 5.4.1 of the Massachusetts Superior Court Criminal Practice Jury Instructions, and the holding in
Commonwealth
v.
Mercado
,
"[The Supreme Judicial Court] is the highest appellate authority in the Commonwealth, and [its] decisions on all questions of law are conclusive on all Massachusetts trial courts and the Appeals Court."
Commonwealth
v.
Vasquez
,
The adoption of the Massachusetts Constitution in 1780 did not displace centuries of common law. See Part II, c. 6, art. 6, of the Massachusetts Constitution ("All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution").
The prosecutor asked the judge if she would give a self-defense instruction if the defendant "hasn't put any witnesses to show self-defense." The judge answered, "No, it's not likely if he doesn't put anyone on."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.