Commonwealth v. Vacca

Massachusetts Appeals Court

Commonwealth v. Vacca

441 N.E.2d 795, 14 Mass. App. Ct. 1019, 1982 Mass. App. LEXIS 1507

DecidedNovember 9, 1982

StatusPublished

This text of 441 N.E.2d 795 (Commonwealth v. Vacca) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Vacca, 441 N.E.2d 795, 14 Mass. App. Ct. 1019, 1982 Mass. App. LEXIS 1507 (Mass. Ct. App. 1982).

Pincite

Opinion

Where, as here, there was a claim of self-defense and defense of others, see Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 750-751 (1980), the threat, on the defendant’s version, was relevant as evidence of the defendant’s apprehension for her own safety or that of her companion and “the reasonableness of that apprehension.” Commonwealth v. Rubin, 318 Mass. 587, 588 (1945). Commonwealth v. Edmonds, 365 Mass. 496, 499-500 (1974). There was testimony that the car was a few inches away from the defendant, that the car window was rolled down, that the defendant was next to her companion who had “heated words” with the passenger, and that immediately thereafter the driver came out of the car. In these circumstances, the jury could infer that the threat was “made in the presence and hearing of the defendant,” and that the driver was acting in concert with the passenger. Commonwealth v. Simpson, 300 Mass. 45, 50 (1938). Commonwealth v. Monahan, 349 Mass. 139, 168 (1965). The threat may be admissible even if the defendant did not hear it to show that the person assaulted was attempting to carry out a threat. Commonwealth v. Rubin, supra at 589; Commonwealth v. Edmonds, supra at 500.

The excluded evidence was important to the defendant’s contention and could have shed some light on “the circumstances preceding the encounter which culminated in the assault.” Commonwealth v. Fiore, 364 Mass. 819, 824 (1974). On this record we think it should have been received, as we cannot “say with confidence that, had the judge admitted the testimony. . ., it would have been without material effect on the jury.” Commonwealth v. Caldron, 383 Mass. 86, 92-93 (1981).

The judge should have permitted the defendant to make an offer of proof. His failure to allow such an offer could have led, without the defendant’s fault, to an inadequate record on appeal. In this case the ex-[1020]*1020eluded evidence appears only as an affidavit in the record of the defendant’s appeal from the denial of her motion for a new trial.

Michael M. Maxey for the defendant. Carmen W. Picknally, Jr., Assistant District Attorney (Charles J. Hely, Assistant District Attorney, with him) for the Commonwealth.

The judgments are reversed, the verdicts set aside, and the case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

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Where, as here, there was a claim of self-defense and defense of others, see Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 750-751 (1980), the threat, on the defendant’s version, was relevant as evidence of the defendant’s apprehension for her own safety or that of her companion and “the reasonableness of that apprehension.” Commonwealth v. Rubin, 318 Mass. 587, 588 (1945). Commonwealth v. Edmonds, 365 Mass. 496, 499-500 (1974). There was testimony that the car was a few inches away from the defendant, that the car window was rolled down, that the defendant was next to her companion who had “heated words” with the passenger, and that immediately thereafter the driver came out of the car. In these circumstances, the jury could infer that the threat was “made in the presence and hearing of the defendant,” and that the driver was acting in concert with the passenger. Commonwealth v. Simpson, 300 Mass. 45, 50 (1938). Commonwealth v. Monahan, 349 Mass. 139, 168 (1965). The threat may be admissible even if the defendant did not hear it to show that the person assaulted was attempting to carry out a threat. Commonwealth v. Rubin, supra at 589; Commonwealth v. Edmonds, supra at 500.