NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-479
COMMONWEALTH
vs.
KEITH J. LYMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Keith J. Lyman, was convicted of failure to stop for
a police officer and assault and battery on a police officer.1
On appeal, he contends that the judge's failure to provide jury
instructions on self-defense and "justification" created a
substantial risk of a miscarriage of justice. We affirm.
Background. On March 13, 2021, around 11:20 P.M.,
Massachusetts State Police Trooper Adam Couture was in full
uniform in his marked cruiser on Route 2 in Greenfield.
Observing a vehicle stopped at a traffic light, Trooper Couture
conducted an inquiry on his mobile data terminal. After running
1The defendant was also charged with unlicensed operation of a motor vehicle. That count was dismissed at the request of the Commonwealth. the vehicle's registration, he "learned that the vehicle was not
inspected, and then also the registered owner had an expired
Massachusetts license." Trooper Couture "waited until the light
turned green," observed the vehicle turn on Route 2A, activated
his emergency blue lights, and initiated a motor vehicle stop.
After the vehicle pulled over, Trooper Couture spoke to the
defendant, who was the driver and lone occupant. The defendant
"seemed reluctant" to speak with Trooper Couture, and "seemed
agitated that [Trooper Couture] was even stopping him." After
Trooper Couture advised the reasons for the stop, the defendant
said that "he did not understand how [Trooper Couture] knew the
vehicle wasn't inspected because he didn't believe that there
was a physical way of [Trooper Couture] being able to see the
vehicle or the vehicle's inspection sticker." Trooper Couture
attempted to explain that he gleaned that information from the
computer in his cruiser, but the defendant "just stated that he
believed he was being unlawfully detained." The defendant's
tone was "relatively harsh . . . agitated . . . and abrasive."
The defendant provided his New York license to Trooper
Couture, who returned to his cruiser and confirmed that the
vehicle driven by the defendant was registered to the defendant
in Massachusetts. Trooper Couture re-approached the vehicle and
attempted to ask the defendant whether he lived in New York or
Massachusetts. The defendant spoke over him, raised his voice,
2 and refused to answer any questions. "He was visibly angry and
getting angrier." The defendant stated that he knew a
Greenfield police officer with whom he wanted to speak and
advised that "he wanted to go to a more populated area." As
Trooper Couture attempted to de-escalate the situation, he
observed the defendant "reach for the shifter and put the car
into drive." Concerned that he might be struck by the vehicle
and that the defendant was "fleeing from the stop," Trooper
Couture attempted to open the door to the vehicle. He also told
the defendant to stop and "put the vehicle in park." At some
point, Trooper Couture reached into the vehicle, and the
defendant struck his hand and arm multiple times with a closed
fist. The defendant then grabbed Trooper Couture's arm, and
continued to punch, and "rake" his arm and hand. Trooper
Couture stepped away, drew his taser, warned the defendant that
he would use his taser, but withdrew as the defendant drove
away.
Trooper Couture radioed for backup and observed the
defendant drive "down route 2A." Although Trooper Couture
followed the defendant with his cruiser light activated, the
defendant did not stop. Instead, he drove to the Greenfield
Police Department parking lot where Trooper Couture and
3 additional police officers stopped and arrested him.2 As the
defendant was being arrested and placed into a cruiser for
transport to the State police barracks, he "kept referring to [a
Greenfield Police Department] officer that he had a personal
connection with and that he wanted [the State police troopers]"
to contact.
Discussion. The defendant claims that the judge erred by
failing to instruct the jury on self-defense and justification.
Where, as here, the defendant neither requested either
instruction nor objected at trial to the instructions provided
to the jury, our review is limited to whether there was any
error, and if so, whether that error created a substantial risk
of a miscarriage of justice. See Commonwealth v. Alphas, 430
Mass. 8, 13 (1999).
We first address the belated claim of self-defense. "Where
the facts of the case permit, a judge is required to instruct on
that theory [of self-defense] even in the absence of a request
from the defendant." Commonwealth v. Kivlehan, 57 Mass. App.
Ct. 793, 795 (2003). More specifically, where nondeadly force
is used, a defendant is entitled to an instruction on self-
defense "if any view of the evidence would support a reasonable
2 An audio-video depicting the scene and arrest at the Greenfield Police Department parking lot was played for the jury and admitted in evidence as an exhibit.
4 doubt as to whether the prerequisites of self-defense were
present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
Those prerequisites are: "(1) the defendant had a reasonable
concern over his personal safety"; (2) the defendant "used all
reasonable means to avoid physical combat"; and "(3) the degree
of force used was reasonable in the circumstances" (quotation
and citation omitted). Commonwealth v. Franchino, 61 Mass. App.
Ct. 367, 369 (2004). However, "such an instruction need not be
given where there was insufficient evidence to support a theory
of self-defense." Commonwealth v. Maguire, 375 Mass. 768, 772
(1978).
In the present case, as the defendant concedes, he did not
request a self-defense instruction at trial. That was for good
reason, as he was not entitled to such an instruction where no
view of the evidence would support a reasonable doubt that he
used all reasonable means to avoid physical combat. There is no
dispute that Trooper Couture lawfully stopped the defendant. In
any event, a "permitted exercise of self-defense does not turn
upon the legality or illegality of the arrest itself." See
Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 448 (2005).
Moreover, the defendant could have avoided physical combat by
answering Trooper Couture's questions; by refusing to answer any
questions but remaining on scene; or by not fleeing the scene.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-479
COMMONWEALTH
vs.
KEITH J. LYMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Keith J. Lyman, was convicted of failure to stop for
a police officer and assault and battery on a police officer.1
On appeal, he contends that the judge's failure to provide jury
instructions on self-defense and "justification" created a
substantial risk of a miscarriage of justice. We affirm.
Background. On March 13, 2021, around 11:20 P.M.,
Massachusetts State Police Trooper Adam Couture was in full
uniform in his marked cruiser on Route 2 in Greenfield.
Observing a vehicle stopped at a traffic light, Trooper Couture
conducted an inquiry on his mobile data terminal. After running
1The defendant was also charged with unlicensed operation of a motor vehicle. That count was dismissed at the request of the Commonwealth. the vehicle's registration, he "learned that the vehicle was not
inspected, and then also the registered owner had an expired
Massachusetts license." Trooper Couture "waited until the light
turned green," observed the vehicle turn on Route 2A, activated
his emergency blue lights, and initiated a motor vehicle stop.
After the vehicle pulled over, Trooper Couture spoke to the
defendant, who was the driver and lone occupant. The defendant
"seemed reluctant" to speak with Trooper Couture, and "seemed
agitated that [Trooper Couture] was even stopping him." After
Trooper Couture advised the reasons for the stop, the defendant
said that "he did not understand how [Trooper Couture] knew the
vehicle wasn't inspected because he didn't believe that there
was a physical way of [Trooper Couture] being able to see the
vehicle or the vehicle's inspection sticker." Trooper Couture
attempted to explain that he gleaned that information from the
computer in his cruiser, but the defendant "just stated that he
believed he was being unlawfully detained." The defendant's
tone was "relatively harsh . . . agitated . . . and abrasive."
The defendant provided his New York license to Trooper
Couture, who returned to his cruiser and confirmed that the
vehicle driven by the defendant was registered to the defendant
in Massachusetts. Trooper Couture re-approached the vehicle and
attempted to ask the defendant whether he lived in New York or
Massachusetts. The defendant spoke over him, raised his voice,
2 and refused to answer any questions. "He was visibly angry and
getting angrier." The defendant stated that he knew a
Greenfield police officer with whom he wanted to speak and
advised that "he wanted to go to a more populated area." As
Trooper Couture attempted to de-escalate the situation, he
observed the defendant "reach for the shifter and put the car
into drive." Concerned that he might be struck by the vehicle
and that the defendant was "fleeing from the stop," Trooper
Couture attempted to open the door to the vehicle. He also told
the defendant to stop and "put the vehicle in park." At some
point, Trooper Couture reached into the vehicle, and the
defendant struck his hand and arm multiple times with a closed
fist. The defendant then grabbed Trooper Couture's arm, and
continued to punch, and "rake" his arm and hand. Trooper
Couture stepped away, drew his taser, warned the defendant that
he would use his taser, but withdrew as the defendant drove
away.
Trooper Couture radioed for backup and observed the
defendant drive "down route 2A." Although Trooper Couture
followed the defendant with his cruiser light activated, the
defendant did not stop. Instead, he drove to the Greenfield
Police Department parking lot where Trooper Couture and
3 additional police officers stopped and arrested him.2 As the
defendant was being arrested and placed into a cruiser for
transport to the State police barracks, he "kept referring to [a
Greenfield Police Department] officer that he had a personal
connection with and that he wanted [the State police troopers]"
to contact.
Discussion. The defendant claims that the judge erred by
failing to instruct the jury on self-defense and justification.
Where, as here, the defendant neither requested either
instruction nor objected at trial to the instructions provided
to the jury, our review is limited to whether there was any
error, and if so, whether that error created a substantial risk
of a miscarriage of justice. See Commonwealth v. Alphas, 430
Mass. 8, 13 (1999).
We first address the belated claim of self-defense. "Where
the facts of the case permit, a judge is required to instruct on
that theory [of self-defense] even in the absence of a request
from the defendant." Commonwealth v. Kivlehan, 57 Mass. App.
Ct. 793, 795 (2003). More specifically, where nondeadly force
is used, a defendant is entitled to an instruction on self-
defense "if any view of the evidence would support a reasonable
2 An audio-video depicting the scene and arrest at the Greenfield Police Department parking lot was played for the jury and admitted in evidence as an exhibit.
4 doubt as to whether the prerequisites of self-defense were
present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
Those prerequisites are: "(1) the defendant had a reasonable
concern over his personal safety"; (2) the defendant "used all
reasonable means to avoid physical combat"; and "(3) the degree
of force used was reasonable in the circumstances" (quotation
and citation omitted). Commonwealth v. Franchino, 61 Mass. App.
Ct. 367, 369 (2004). However, "such an instruction need not be
given where there was insufficient evidence to support a theory
of self-defense." Commonwealth v. Maguire, 375 Mass. 768, 772
(1978).
In the present case, as the defendant concedes, he did not
request a self-defense instruction at trial. That was for good
reason, as he was not entitled to such an instruction where no
view of the evidence would support a reasonable doubt that he
used all reasonable means to avoid physical combat. There is no
dispute that Trooper Couture lawfully stopped the defendant. In
any event, a "permitted exercise of self-defense does not turn
upon the legality or illegality of the arrest itself." See
Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 448 (2005).
Moreover, the defendant could have avoided physical combat by
answering Trooper Couture's questions; by refusing to answer any
questions but remaining on scene; or by not fleeing the scene.
Indeed, even after attempting to leave the scene, the defendant
5 could have avoided physical combat by stopping his vehicle,
instead of repeatedly striking, punching, and scratching the
trooper.
Additionally, no view of the evidence would support a
reasonable doubt that the degree of force used by the defendant
was reasonable in the circumstances. Here, there was no
evidence that Trooper Couture employed excessive or unnecessary
force. Indeed, there was no evidence that Trooper Couture
touched or harmed the defendant in any way. Furthermore,
"[e]ven in circumstances where the defendant would be justified
in using force in lawful defense of his person against a third
person, he may not do so against a police or correction officer
unless the officer uses excessive or unnecessary force."
Commonwealth v. Francis, 24 Mass. App. Ct. 576, 579 (1987).
Even assuming arguendo that Trooper Couture's attempt to stop
the defendant from fleeing the scene could be construed as a
show of some "force," there is no evidence of excessive or
unnecessary force.
The defendant also argues that the judge created a
substantial miscarriage of justice by failing to give the jury a
"justification instruction" at trial. The defendant cites no
Massachusetts authority or persuasive precedent for any such
6 instruction.3 We further note that Trooper Couture was in a
marked cruiser and in full uniform on a well traveled public
way. Under these circumstances it was not error, much less a
miscarriage of justice, for the judge to "fail" to provide such
an instruction sua sponte.
Judgments affirmed.
By the Court (Milkey, Massing & Neyman, JJ.4),
Assistant Clerk
Entered: April 11, 2024.
The defendant cites to a case from the Indiana Court of 3
Appeals, Cowans v. State, 53 N.E.3d 540 (Ind. Ct. App. 2016), for the proposition that a similar justification instruction should have been given to the jury. This argument is unpersuasive where the Indiana Supreme Court subsequently "expressly disapprove[d]" that suggested instruction. See Batchelor v. State, 119 N.E.3d 550, 563 (Ind. 2019).
4 The panelists are listed in order of seniority.