COMMONWEALTH vs. ANTHONY CATALDO.

LIACOS, C.J. On June 3, 1990, Anthony Cataldo was convicted by a jury of assault by means of a dangerous weapon on Detective Joseph Britt. [Note 1] On appeal he challenges

Page 319

the judge's charge on the use of deadly force in self-defense, the judge's denial of his motion for a view, and the judge's allowance of certain evidence. The Appeals Court set aside the verdict, concluding that the judge's instruction on self-defense improperly allowed the jury to convict the defendant on the basis that his actions constituted an excessive use of force in response to the level of force presented. Commonwealth v. Cataldo, 37 Mass. App. Ct. 957 (1994). We allowed the Commonwealth's application for further appellate review. We granted further appellate review to consider whether brandishing a gun constitutes the use of deadly force in the context of self-defense.

We recite the evidence in the light most favorable to the defendant. See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980), citing Commonwealth v. Monico, 373 Mass. 298, 299 (1977) (defendant entitled to instruction on self-defense if warranted by the evidence, viewed in light most favorable to defendant). In the early morning hours of March 18, 1990, the defendant, while working as a tow-truck operator, met two friends and followed them to Dominic's Lounge in the Back Bay section of Boston. The defendant carried a licensed handgun because of the large amounts of cash he carried and the dangerous nature of his automobile repossession work. The three men entered the lounge briefly before walking down the street to join a line of persons waiting nearby to buy pizza. A scuffle broke out, and someone who knew the defen-

Page 320

dant pulled him away from the group. The defendant returned to the automobile of his friend, Kevin Hardy. Hardy was in the driver's seat, while the defendant stood by the passenger side door of the automobile.

During the scuffle moments earlier, someone entered Dominic's Lounge and informed off-duty Boston police Detectives Joseph Britt and John Martel of the scuffle on the street. The two officers were drinking at Dominic's, each having just come off work at 1 A.M. They were dressed in plain clothes. Detective Martel left the lounge first with his service revolver drawn. Detective Britt followed, proceeding around the rear of the automobile, and was met by the defendant's friend, Hardy, who was unarmed. Detective Britt pushed Hardy onto the trunk of the automobile, pointing his revolver at Hardy's head. The defendant reached for his handgun, [Note 2] and was shot in the chest by Detective Britt. At the close of the trial, the defendant requested and received an instruction on self-defense and the defense of another. The testimony at trial, although conflicting on several important points, warranted jury instructions on both self-defense and the defense of another. See Commonwealth v. Epsom, 399 Mass. 254, 257-258 (1987), S.C., 422 Mass. 1002 (1996). The judge's instruction is set out in the margin. [Note 3]

We are concerned here with the correctness of the instructions, specifically, the use of "deadly force" language. In

Page 321

analyzing challenged jury instructions, we examine the charge in its entirety to determine its impact on the jury's perception of their fact-finding function. Commonwealth v. Mejia, 407 Mass. 493, 495 (1990). The defendant did not object at trial to the instructions given, and thus reversal is warranted only if the instructions created a substantial risk of a miscarriage of justice. The Appeals Court concluded that instructing the jury as to the use of deadly force in self-defense created a substantial risk of a miscarriage of justice because the defendant's menacing gestures did not amount to the use of deadly force, and thus, in its view, there was no evidence of the use of deadly force. Commonwealth v. Cataldo, supra at 959.

A person may defend himself with the use of nondeadly force if he reasonably fears for his personal safety. Deadly force may be used in defense of oneself only on a reasonable belief that one is in imminent danger of death or serious bodily harm, and that no other means will suffice to prevent such harm. See Commonwealth v. Bastarache, 382 Mass. 86, 105 (1980). Deadly force is defined in this Commonwealth as "force intended or likely to cause death or great bodily harm." Commonwealth v. Klein, 372 Mass. 823, 827 (1977).

Page 322

Even if we assume the defendant drew his gun, as the Commonwealth alleges, it would be for the jury to determine the reasonableness of force used by him and they alone must conclude whether such force was excessive in the circumstances. The instruction here required the jury to find that the defendant's actions constituted the use of deadly force if they found the defendant drew his gun. Also, if the jury believed the defendant engaged in the use of deadly force, they they have convicted him based on a belief that in the circumstances as presented to him, his use of deadly force was excessive. [Note 4]

The conflicting evidence in this case indicated that the defendant did not draw his gun or merely reached for the gun tucked in his waistband or, in the alternative, drew his gun and pointed it at the detectives. In the latter context, a crucial question was whether the act of pointing a gun at another constituted the use of deadly force.

We conclude the proper rule is that in cases such as this where a weapon which, in some circumstances, is dangerous per se, see Commonwealth v. Appleby, 380 Mass. 296, 303 (1980), was not used in its intended deadly manner, i.e., it was brandished but not fired, the jury must determine whether the defendant intended to use the weapon in a deadly manner. [Note 5] See Commonwealth v. Klein, supra at 827 (force intended to cause death or great bodily harm is deadly force). In this Commonwealth, acts intended to cause serious bodily injury constitute the use of deadly force in the context of self-defense.

Page 323

We cannot say as matter of law that a defendant who points a gun but is prevented from pulling the trigger does not intend to cause serious bodily injury or death. To do so would redefine the use of deadly force as a wholly objective determination. We believe it is proper to include within the definition of deadly force the threatening gestures of one who intends to inflict serious bodily harm or death. Where, as here, the evidence is conflicting and the jury would have been warranted in believing evidence that the defendant pointed a gun at another with or without the intent to shoot the latter, the jury must be instructed properly on the definitions of deadly force and the use of deadly force in self-defense, and the jury must determine whether the defendant's acts constituted the use of deadly force.

The Model Penal Code takes the position that a threat to use deadly force does not itself constitute deadly force, so long as the actor's intent is limited to creating an apprehension that he or she will resort to deadly force if necessary. ALI, Model Penal Code and Commentaries s. 3.11 (1985). [Note 6] See W.K. LaFave & A.W. Scott, Jr., Criminal Law s. 53, at 392 (1972) (same). Deadly force as defined by the Model Penal Code includes "force the actor uses with the purpose of

Page 324

causing or that he knows to create a substantial risk of causing death or serious bodily injury." This definition of deadly force closely resembles the definition adopted in this Commonwealth, as force "intended or likely to cause death or great bodily harm." Commonwealth v. Klein, supra. The official comments to the Model Penal Code explain that allowing one to threaten deadly force without the intent to use it (unless necessary) advances the law of self-defense by avoiding the duty to retreat in certain confrontations. Thus, a defendant threatened by a knife held by an aggressor, who may perhaps be weaker than the aggressor, may threaten the aggressor with a gun without first having to retreat. If the knife-wielding aggressor then retreats, the confrontation has ended and the threatened use of force was permissible. If the aggressor continues to pursue the defendant to the point at which the defendant can no longer escape, the defendant is justified in using deadly force by shooting the aggressor. See ALI, Model Penal Code and Commentaries s. 3.11 comment 2, at 160 (1985).

The rule advocated by the Appeals Court, that the threat of deadly force cannot as a matter of law constitute the use of deadly force, does not encourage retreat from altercations but rather may encourage escalation of violence. Cf. Commonwealth v. Carter, 396 Mass. 234, 237 (1985) (use of unloaded gun in robbery may provoke violent resistance and thus is inherently dangerous to human life). Alternatively, in a situation where a dangerous weapon is brandished but not used in such a way that death or serious bodily harm is likely, allowing a jury to determine whether the defendant's threat of force (which, as we have explained, in and of itself need not constitute the use of deadly force) was intended to cause death or great bodily harm preserves the integrity of the duty to retreat by not providing a "safe harbor" for the escalation of violence. Moreover, a defendant who is threatened with harm of the type that cannot be repelled other than by a threat of deadly force is protected in his or her actions if the actions are limited to merely creating an apprehension that the defendant will resort to deadly force if necessary. The problem of escalation is further minimized by the jury's ever present role in determining if the defendant's actions are excessive in light of the circumstances as perceived by the defendant. Allowing the jury to determine whether a defendant's

Page 325

use of a dangerous weapon in a manner not likely to cause death or great bodily harm constitutes deadly force protects those defending themselves from violence, avoids unnecessary escalation of force, and preserves the vital role of the jury in fact-finding. "[T]he question of whether a weapon is dangerous as used is always one for the fact finder." Commonwealth v. Appleby, supra at 307 n.5 (1980). [Note 7]

That the judge was correct to instruct the jury on the use of deadly force in self-defense does not save this instruction. The judge instructed that "[a] person may use reasonable force to defend himself from physical attack." This lone statement is not an adequate instruction on the use of force in self-defense. These instructions were inadequate to guide the jury properly in their fact finding role. See Commonwealth v. Harrington, 379 Mass. 446, 454 (1980). Where evidence exists, from whatever source, to support a defendant's claim that he used nondeadly force in self-defense (force neither intended nor likely to cause death or great bodily harm), he is entitled to an instruction on the use of nondeadly force in self-defense. Commonwealth v. Baseler, 419 Mass. 500, 503 (1995). The absence of such an instruction here took from the jury the option to find that the Commonwealth did not prove beyond a reasonable doubt that (a) the defendant intended to shoot at the officers, or (b) his actions were likely to cause death or great bodily harm. The error created a substantial risk of a miscarriage of justice.

The Appeals Court relied primarily on Commonwealth v. Yazbeck, 31 Mass. App. Ct. 769 (1992), to determine that either reaching for or pointing a gun at another does not constitute the use of deadly force. In that case, Boston police officers broke through the front door of the defendant's home with a sledgehammer at 10:45 P.M. in order to execute a search warrant. In the house with the defendant were his mother and his girl friend, whose estranged husband had

Page 326

threatened and battered her, and had also threatened to kill the defendant and the defendant's mother. As one of the officers walked down the hall, the defendant, believing that the person breaking down the door was his girl friend's estranged husband, "appeared with a loaded rifle aimed directly at the officer." Id. at 770. The defendant was charged with assault by means of a dangerous weapon, apparently on the theory that the officer was placed in apprehension of immediate bodily harm. There appears to have been no evidence in that case that the defendant intended to use force likely to cause death or serious bodily injury, and therefore the instruction did not create a substantial risk of a miscarriage of justice for failing to instruct on the duty to retreat. The evidence in that case supported only a theory that the defendant intended a threatening gesture. Where no evidence supported a finding that the defendant's use of force was intended or likely to cause death or serious bodily harm, no deadly force instruction was required.

Our decision today is consistent with our recent case of Commonwealth v. Baseler, supra. In that case we held that a defendant charged with assault and battery by means of a dangerous weapon and assault and battery was entitled to instructions on the use of both deadly force and nondeadly force in self-defense where the evidence was conflicting and the jury could have found either that the defendant held a gun to the victim's head after knocking her to the floor or that the victim fell against a stove as the defendant tried to prevent her from slapping him. In Baseler, supra, there was ample evidence of a battery, as opposed to an assault, from which the jury would have been warranted in finding that the force used by the defendant was either intended or likely to cause great bodily harm. The mere existence of a dangerous weapon, without more, would not have warranted an instruction on the use of deadly force.

The judge's instruction concerning the use of force in defense of another was necessarily flawed to the extent it referred to and relied on his earlier instructions on self-defense. For purposes of any retrial that might occur we note that, aside from the reference to the instructions on self-defense, the instructions on defense of another appeared

Page 327

confusing. [Note 8] "Self-defense is a sensitive part of the jury instructions in a criminal trial, and inappropriate language in the instructions can readily lead to a result in which an appellate court lacks confidence. Commonwealth v. Rodriguez, 17 Mass. App. Ct. 547, 551 (1984)." Commonwealth v. Mejia, 407 Mass. 493, 497 (1990).

Judgment reversed.

Verdict set aside.

O'CONNOR, J. (concurring). I agree with the Appeals Court and this court that the jury instruction on self-defense contained error requiring reversal. Like the Appeals Court, however, I do not agree that the jury would have been warranted in finding that the defendant used deadly force. At most, the evidence would have warranted a finding that the defendant brandished, but did not fire, a gun; that is, he used a gun in a threatening manner but, as the Appeals Court observed, "did not actually use deadly force or engage in

Page 328

combat." 37 Mass. App. Ct. 957, 959 (1994), quoting Commonwealth v. Yazbeck, 31 Mass. App. Ct. 769, 772 (1992).

Contrary to the Appeals Court's rationale and relying at least in part on the Model Penal Code, the court concludes that "it is proper to include within the definition of deadly force the threatening gestures of one who intends to inflict serious bodily harm or death. Where, as here, the evidence is conflicting and the jury would have been warranted in believing evidence that the defendant pointed a gun at another with or without the intent to shoot the latter, the jury must be instructed properly on the definitions of deadly force and the use of deadly force in self-defense, and the jury must determine whether the defendant's acts constituted the use of deadly force." Ante at 323.

As the court recognizes, by itself a defendant's pointing of a gun at another person does not constitute the use of deadly force. In the court's view, however, if, while he points the gun, the defendant plans to shoot someone, the pointing of the gun without firing it is the use of deadly force. I do not agree. As I see it, the defendant's pointing of a gun, regardless of what he may intend to do thereafter, cannot logically be characterized as the use of deadly force. A defendant who points a gun intending subsequently to shoot someone, intends to use deadly force but, until the shots are fired, has not done so. Commonwealth v. Klein, 372 Mass. 823 (1977), cited by the court, which involved a defendant's assertion that he shot in self-defense, does not suggest otherwise. I conclude, therefore, that, regardless of the defendant's plan when he used "threatening gestures," those gestures did not constitute the use of deadly force. It follows, of course, that the defendant's intention was irrelevant to the self-defense issue and jury consideration of that issue would have been, and on retrial will be, inappropriate.

There is an additional reason why, in this case, no question about whether the defendant intended to shoot Detective Britt should have been submitted to the jury. The court states, ante at 320, that the evidence was "conflicting" in regard to whether the defendant intended to shoot Britt. The court does not identify, and my review has not revealed, any evidence sufficient to warrant a finding that the defendant intended not merely to threaten Detective Britt, who was dressed in street clothes, to deter him from shooting the

Page 329

defendant's friend, Hardy, but to shoot Britt. Surely, on retrial, in the absence of adequate evidence, as here, the jury should not be permitted to speculate on the defendant's intention.