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SJC-11850

                  COMMONWEALTH   vs.   JAMES ALLEN.



       Suffolk.      December 10, 2015. - April 20, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Homicide. Firearms. Defense of Others. Practice, Criminal,
     Instructions to jury. License. Constitutional Law, Right
     to bear arms.



     Indictments found and returned in the Superior Court
Department on February 1, 2011.

    The cases were tried before Patrick F. Brady, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Matthew V. Soares for the defendant.
     Amanda Teo, Assistant District Attorney (Jennifer J.
Hickman, Assistant District Attorney, with her) for the
Commonwealth.
     Levi W. Swank, of the District of Columbia, & David A.F.
Lewis & Stephen D. Poss, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
                                                                      2


         CORDY, J.   On March 21, 2012, a jury convicted the

defendant, James Allen, of murder in the second degree,1 and of

carrying a firearm without a license, possession of ammunition

without a firearms identification card, and possession of a

large capacity firearm feeding device without a license.2        At

trial, his defense was that he was justified in using deadly

force because he was coming to defense of a friend (Shawn

Buchanan) who was being threatened with deadly force by the

victim, Senai Williams.

     The defendant timely appealed his conviction, and we

granted his application for direct appellate review.      On appeal,

he raises several claims.      First, he argues that the trial

judge's instruction to the jury on defense of another was

incorrect because it improperly suggested that the defendant may

have had a duty to retreat, and because it negated the

possibility of a finding of so-called excessive force

manslaughter by instructing that the defendant was required to

avail himself of available alternatives before employing deadly

force and that if the Commonwealth proved that the defendant

     1
       The defendant was charged with murder in the first degree,
and the jury was instructed on murder in the first degree by
reason of deliberate premeditation.
     2
       The defendant was tried together with Shawn Buchanan.
Buchanan was acquitted of being an accessory after the fact to
the offense of assault and battery by means of a dangerous
weapon, and of several firearms charges.
                                                                     3


used excessive force then it had proved that he did not act in

lawful defense of another.    The defendant also claims error

based on misstatements by the prosecutor in closing argument;

the admission of irrelevant and prejudicial testimony;

insufficient evidence supporting the firearms convictions; and

constitutional violations in connection with the firearm

indictments.    We conclude that portions of the jury instructions

concerning excessive force manslaughter were erroneous and

prejudicial.    Accordingly, we reverse the defendant's conviction

of murder in the second degree and remand the case for a new

trial on that charge.    We affirm the defendant's remaining

convictions.3

     1.   Background.   We summarize the evidence.   On November

18, 2010, the defendant shot and killed the victim.     The

shooting arose from a dispute between two groups of neighbors

and their associates residing at 20 and 23 Homestead Street in

the Roxbury section of Boston.    The 20 Homestead Street group

included the victim; his girl friend, Shaquice Herring; and her

mother, brothers, and cousins.    The 23 Homestead Street group

included the defendant; his friend, Shawn "Lucky" Buchanan;

Buchanan's mother; his girl friend; and his half-brother,

Rellindo Stephens.

     3
       We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
                                                                   4


    The events that culminated in the shooting began that

afternoon, when Stephens and some friends were looking for a

place to smoke marijuana.   Because his mother was home, Stephens

decided to smoke in the hallway of 20 Homestead Street.

Herring's mother, who had received complaints from her landlord

about marijuana smoke in the hallway, told the victim and two

others in their group to go downstairs to tell Stephens and his

friends they could not smoke in the hallway.   Following a tense

exchange of words, the victim grabbed Stephens and forced him

out the door.

    As Stephens crossed the street to return to his house, he

saw Herring in her window and called her a bitch.   Angered, she

went outside to confront him.   The victim eventually separated

the two, but not before Herring slapped and punched Stephens in

the face.

    Stephens called his brother, Buchanan, about the incident.

Buchanan, accompanied by the defendant, went to Homestead

Street.   By the time they arrived, night had fallen and the

street lights were on.   When Buchanan got to Homestead, he

beckoned to Herring and the victim to come down to the street.

Eventually, Stephens joined the three, who were speaking calmly

with one another.   The conversation became more heated as they

began to discuss the earlier incident with Stephens.   Someone

asked if the victim had hit Stephens, and Herring told Buchanan
                                                                      5


that she, and not the victim, had hit him.    The victim attempted

to demonstrate the manner in which he had made contact with

Stephens in the hallway; Stephens, however, was still upset and

demanded that the victim take his hands off of him.    Likewise,

Buchanan told the victim he did not need to touch Stephens to

explain.   The defendant, who was standing on the porch of 20

Homestead, said to Buchanan, "Handle your business, Luck."       At

this time, the victim moved to the side of Herring and then

reached over her, trying to punch Buchanan.

    A number of people had converged on their porches and

sidewalk to watch the escalating confrontation, including other

members of the two groups.   A neighbor living at 21 Homestead

also watched the confrontation from her porch.   The defendant

and others suggested that the victim and Buchanan have a "fair

one," a one-on-one fist fight.

    While the defendant stood on the front porch of 20

Homestead, Buchanan and the victim began to fight.    They

repeatedly swung at each other without making contact.       At one

point, the two men were getting close to an automobile belonging

to the neighbor's father, which was parked on the street; at her

request, they moved away from the vehicle.    It appeared to the

neighbor that "they . . . didn't really want to fight."      Around

this time, the defendant came down the front steps of 20

Homestead into the street.
                                                                    6


    The testimony about what happened next, in the moments

prior to the shooting, is in conflict.   Herring testified that

both Buchanan and the victim pulled out knives, and that she

made the victim walk away from Buchanan at that point.   She also

testified that the latch on the victim's knife was broken, so

that the blade would not stand up straight.   Others testified

that Buchanan pulled out a knife and then the victim pulled out

a knife.   Still another witness testified that the victim never

had a chance to get his knife out of his pocket.

    Stephens, however, testified that Buchanan had been holding

a cellular telephone when the fight broke out and that when he

went to put it in his pocket, the victim asked if Buchanan was

"reaching."   He further testified that the victim began "jumping

at [Buchanan], like breasting," that he had a knife in his hand,

and that Buchanan began backing away from the victim.    Another

witness testified that she saw a knife in the victim's hand,

although Buchanan's back was to her so she could not see if he

was holding anything.

    The testimony concerning the distance between Buchanan and

the victim is also in conflict, with some witnesses testifying

the two men were a little more than an arm's length apart and

another testifying that they were at least one automobile length

apart.   According to one witness, as the victim backed away from

Buchanan, the defendant came around a vehicle in a creeping
                                                                     7


fashion, pulled a gun, and fired it over Buchanan's shoulder.

The victim fell to the ground.     Some witnesses heard the

defendant say something like, "You don't bring a knife to a

gunfight."    Herring heard the defendant say this before he fired

the gun; the others heard him say it after the gun had been

fired.

     The victim got up and ran to the rear of 20 Homestead,

having been shot once in the right lower back.4    He was taken to

the hospital, where he was pronounced dead.     The defendant fled

toward Walnut Avenue, while Buchanan ran into 23 Homestead.

     When the police arrived, Herring screamed, "[H]urry up,

hurry up, he's dying," and ran to the back of the building.

Shortly thereafter, based on a description of the shooter,

officers stopped the defendant near the Jackson Square subway

station.     The defendant told the officers that he had just

gotten off the bus, that he was coming from his girl friend's

apartment in Somerville, and that he was going to see his

sister.

     The defendant was subsequently arrested.     The K-9 unit

searched 23 Homestead the next day and recovered the firearm




     4
       The medical examiner who performed the autopsy testified
that he was not able to determine the angle that the victim was
at when he was shot.
                                                                   8


used in the shooting, concealed behind a box inside a small

storage area in the basement.

     The police also recovered the victim's knife.     A Boston

police department criminologist testified that the knife's blade

did not stay up because the knife was missing its "innards."

She also testified that she did not know if the knife worked

before she examined it.

     2.   Jury instructions.    The defendant argues that the

judge's instruction on defense of another (1) erroneously

conflated principles of self-defense and defense of another by

suggesting that the defendant had a duty to retreat; and (2)

improperly negated the possibility of a finding of so-called

excessive force manslaughter by stating, among other things,

that the defendant was required to avail himself of available

alternatives before employing deadly force.5,6    The ambiguous,


     5
       For the first time on appeal, the Commonwealth argues that
the defendant was not entitled to the defense of another
instruction. Notwithstanding the untimeliness of this argument,
the evidence, viewed in the light most favorable to the
defendant, see Commonwealth v. Okoro, 471 Mass. 51, 68 (2015),
was sufficient to require the instruction, especially given the
conflicting testimony about whether both the victim and Buchanan
had knives, who took his knife out first (if at all), and
whether either man was backing away from the other at the moment
of the shooting. See Commonwealth v. Norris, 462 Mass. 131, 141
(2012) (instructions on defense of another warranted where
evidence is sufficient to create reasonable doubt as to whether
defendant reasonably believed intervention was necessary to
prevent harm to third party).
                                                                   9




     6
       The instruction was, in relevant part, as follows, with
added emphasis to the challenged portions:

          "In order to defend another person with a dangerous
     weapon likely to cause serious injury or death, or in other
     words to use deadly force, the person using the weapon or
     deadly force must have a reasonable apprehension that the
     other person is in danger of great bodily harm or death,
     and a reasonable belief that no other means would suffice
     to prevent such harm.

          "Put another way, the proper exercise of defense of
     another person means that a person in the defendant's
     circumstances, Mr. Allen's circumstances, would reasonably
     believe that the other person was about to be attacked and
     that the other person was in immediate danger of being
     killed or seriously injured, and, and that there was no
     other way to avoid the attack. A person using a dangerous
     weapon or deadly force in defense of another must also have
     actually believed, actually believed that the other person
     was in imminent danger of serious harm or death. The
     person may not use force in defense of another person until
     he has availed himself of all proper means to avoid
     physical combat. A person who reasonably but mistakenly
     believes that the other person is in imminent danger of
     serious bodily harm or death, and that he has used all
     proper means to avoid the use of force, may still use
     deadly force to defend the other person. . . .

          "[T]he Commonwealth must prove beyond a reasonable
     doubt that the defendant did not, did not act in defense of
     another. The Commonwealth may satisfy that burden by
     proving beyond a reasonable doubt any one, any one of the
     following propositions. Number one, the defendant did not
     subjectively believe that Shawn Buchanan was in imminent
     danger of serious injury or death. Or, or, number two,
     even if the defendant, Mr. Allen, believed Mr. Buchanan was
     in such danger, the defendant's belief was not objectively
     reasonable. Or, number three, the defendant failed to
     avail himself of other available alternatives before
     employing deadly force. If the Commonwealth has proved any
     one of those things, then it has proved that the defendant
     did not act in defense of another.
                                                                  10


confusing, and contradictory nature of the instructions, argues

the defendant, warrants reversal of his conviction.   We agree,

although for somewhat different reasons than those proffered by

the defendant.

    Because the defendant raised a timely objection to the

judge's instruction to the jury, we review his claim for

prejudicial error.   Commonwealth v. Kelly, 470 Mass. 682, 687


         "Now there is one additional way in which the
    Commonwealth may prove that the defendant did not act in
    lawful defense of another. You will recall that I told you
    when I was explaining the legal concept of defense of
    another that a person may use no more force than is
    reasonably necessary in all of the circumstances to defend
    another person. If a person uses unreasonable force or
    excessive force, then he is not acting in lawful defense of
    another. Thus, if the Commonwealth proves that the
    defendant used excessive force in defending Shawn Buchanan,
    then it has proved that the defendant did not act in lawful
    defense of another. However, . . . excessive force in
    otherwise lawful defense of another is a mitigating
    circumstance, a mitigating circumstance that reduces the
    offense of murder to manslaughter. Manslaughter is the
    unlawful killing of a human being using excessive force in
    defense of another.

         "Thus, if the Commonwealth has failed to prove any one
    of the three things that I previously explained, number
    one, that the defendant did not subjectively believe that
    Shawn Buchanan was in imminent danger of serious injury or
    death, or number two, even if the defendant, Mr. Allen,
    believed Mr. Buchanan was in such danger, the defendant's
    belief was not objectively reasonable, or, number three,
    the defendant failed to avail himself of other available
    alternatives before employing deadly force, but . . . the
    Commonwealth has proved beyond a reasonable doubt that the
    defendant used excessive force in self-defense, then you
    would be warranted in finding the defendant guilty of
    manslaughter."
                                                                     11


(2015).     We determine "whether the instructions were legally

erroneous, and (if so) whether the error was prejudicial."        Id.

at 688, quoting Kelly v. Foxboro Realty Assocs., LLC, 454 Mass.
306, 310 (2009).     We will not find prejudice where an error "did

not influence the jury, or had but very slight effect . . . .

But if one cannot say, with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error, [then] it is impossible to conclude that substantial

rights were not affected."     Kelly, 470 Mass. at 688,

quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).       We

evaluate jury instructions "as a whole, looking for the

interpretation a reasonable juror would place on the judge's

words . . . rather than scrutinizing bits and pieces removed

from their context" (citations, quotations, and alterations

omitted).    Commonwealth v. Harris, 464 Mass. 425, 434 (2013).

    The elements of defense of another are well settled:      "An

actor is justified in using force against another to protect a

third person when (a) a reasonable person in the actor's

position would believe his intervention to be necessary for the

protection of the third person, and (b) in the circumstances as

that reasonable person would believe them to be, the third

person would be justified in using such force to protect

himself."    Commonwealth v. Young, 461 Mass. 198, 208 (2012),
                                                                       12


quoting Commonwealth v. Martin, 369 Mass. 640, 649 (1976).7      The

jury need not find that the third person was entitled to use

force in self-defense, "however, the intervening defendant must

have had a reasonable belief that the third person was being

unlawfully attacked."       Commonwealth v. Okoro, 471 Mass. 51, 68

(2015).       "The reasonableness of the belief may depend in part on

the relationships among the persons involved."       Martin, supra at

649.       "[I]f the defendant uses deadly force in order to protect

another where that amount of force was unwarranted, the

defendant's conduct will not be fully excused and he or she may



       7
       At the time of the defendant's trial, the model jury
instructions provided:

            "A homicide is also excused and is therefore not a
       crime, if it results from the proper exercise of the
       defense of a third person. A person may lawfully use a
       dangerous weapon (or deadly force) in defense of a third
       person when 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.

            "The defense of another instruction should mirror the
       self-defense instructions.

            "The Commonwealth must prove beyond a reasonable doubt
       that the defendant did not act in defense of a third
       person. If the Commonwealth fails to [do so] . . . then
       you must find the defendant not guilty." (Emphasis in
       original.)

Model Jury Instructions on Homicide 58 (1999).
                                                                     13


still be found guilty of manslaughter."     Okoro, supra at 68,

citing, Martin, supra.

    a.     Duty to retreat.   We first consider the defendant's

argument that the instruction on defense of another was

erroneous because it intermingled principles of self-defense

with defense of another, creating the improper suggestion that

the defendant had a duty to retreat before using force in

defense of another.    Specifically, the defendant takes issue

with the following instruction:

         "The person [claiming defense of another] may not use
    force in defense of another person until he has availed
    himself of all proper means to avoid physical combat. A
    person who reasonably but mistakenly believes that the
    other person is in imminent danger of serious bodily harm
    or death, and that he has used all proper means to avoid
    the use of force, may still use deadly force to defend the
    other person."

    The defendant argues that this language deviates from the

model jury instructions and is careless in its use of the

pronoun "he," creating ambiguity as to which actor, the aider

(the defendant) or the aided (Buchanan), must "avail himself of

all proper means to avoid physical combat."     Moreover, says the

defendant, the instruction, contrary to Massachusetts law,

imposes both a duty to exhaust available alternatives before

using deadly force as well as a duty to retreat when defending

another.   The defendant also posits that the ambiguity and error

were compounded by the judge's repeated use of this language,
                                                                  14


which essentially added a "third prong" to the established

elements of the defense of another defense.   Although we agree

that the instructions were flawed and confusing as to these

points, and we disapprove of the inclusion of the "third prong"

language,8 we disagree that the instruction, taken as a whole,

constitutes reversible error.

     Although this court has not had occasion to address the

precise issue raised by the defendant, we have found two cases

from the Appeals Court that addressed the issue whether

instructions on defense of another improperly imposed a duty of

retreat.   See Commonwealth v. Hakala, 22 Mass. App. Ct. 921

(1986); Commonwealth v. Sullivan, 17 Mass. App. Ct. 981 (1984).

These cases are instructive, as the defendants there, as here,

argued that the jury instructions, though somewhat differently

formulated, erroneously imposed a duty of retreat on a defendant

claiming defense of another.

     In Sullivan, the defendant argued it was erroneous for the

judge to "employ[] the words 'self defense' in his explanation


     8
       The judge indicated that he believed our decision in
Commonwealth v. Williams, 450 Mass. 879, 885 n.3 (2008),
required the inclusion of this language. We take this
opportunity to clarify that Williams, which dealt with
instructions on self-defense, does not impose such a requirement
with respect to instructions on defense of another. Rather,
judges should look to the 2013 Model Jury Instructions on
Homicide, which provide a clear formulation of when deadly force
may be employed in defense of another.
                                                                    15


of the defense of another principle," and by doing so,

"incorporated in the latter principle the idea that the

defendant had to take reasonable means to avoid combat."

Sullivan, 17 Mass. App. Ct. at 981-982.    Similarly, in Hakala,

the defendant claimed error in the judge's statements that there

was a "duty to avoid physical contact" and that "a person must,

before resorting to deadly force to defend himself or another,

take advantage of all proper and reasonable means to avoid the

use of deadly force."    Hakala, 22 Mass. App. Ct. at 922.

       In both cases, the Appeals Court found no error, noting

that a jury was unlikely to construe the instructions as

imposing a duty to retreat because "coming to the aid of another

involves intervention and necessarily is irreconcilable with

retreat."    Sullivan, 17 Mass. App. Ct. at 982.   See Hakala, 22
Mass. App. Ct. at 922-923.    And, insofar as the instructions

went to the occasion to use a deadly weapon, the statement that

a defendant must "take advantage of all proper and reasonable

means to avoid the use of deadly force," id. at 922, was

appropriate because "[i]f words would avert that occasion, they

should be used; the permissible use of force scaling up to

deadly force follows a rule of reason."    Id. at 923.   "The test

. . . is reasonableness under all the circumstances."     Id. at

922.
                                                                    16


     Likewise, the instructions here, although abstruse, do not

require reversal insofar as they blend together principles of

self-defense and defense of another.   Nowhere in the instruction

did the judge say anything about "retreat."   See id. at 922-923.

Taken as a whole, the judge's charge properly conveyed that the

Commonwealth bore the burden of proving beyond a reasonable

doubt that the defendant did not act in defense of another.

Moreover, given the incompatible nature of intervention and

retreat, we do not conclude that reasonable jurors would have

construed the instructions as imposing a duty to retreat.9    See

Commonwealth v. Miller, 457 Mass. 69, 75 (2010) ("[W]e consider

the jury charge as a whole, looking for the interpretation a

reasonable juror would place on the judge's words" [quotations

and citation omitted]).   Additionally, we concur with the court

in Hakala that incorporating language from the self-defense

instructions is appropriate to convey the point that the

defendant was required to avail himself of other available

     9
       Massachusetts, unlike the Model Penal Code and a small
minority of jurisdictions, has never adopted a rule of retreat
in connection with the defense of others. See 2 Criminal Law
Defenses § 133, at 104 & n.6 (1984) (discussing § 3:05 of Model
Penal Code and relevant State statutes). We decline to do so
now, as we agree that "the retreat rule itself [is] unnecessary.
In this context, the obvious inability of a person in a defense
of others situation to even understand, let alone apply, such
complex retreat and surrender rules further supports the view
that they should be done away with." Id. at § 133, 104.
                                                                  17


alternatives before employing deadly force was appropriate

inasmuch as it went to the circumstances in which a deadly

weapon might be used, and its reasonableness.     We agree that, as

a matter of principle, intervention with a deadly weapon is an

act of last resort, and that a jury may consider whether other

actions would have "avert[ed] the occasion" to use deadly force.

Hakala, 22 Mass. App. Ct. at 923.     The policy underlying the

defense of another defense is "to discourage indifference to the

plight of strangers."    Young, 461 Mass. at 208.   The defense

promotes "the social desirability of encouraging people to go to

the aid of third parties who are in danger of harm as the result

of the unlawful actions of others."     Commonwealth v. Monico, 373
Mass. 298, 303 (1977).    The facts in this case present a murkier

scenario than one where an innocent party is set upon by an

attacker.    The victim and Buchanan were engaged in mutual combat

when the defendant fired his gun at the victim.     The policy

underlying the defense of another intrinsically comprehends a

distinction between circumstances that justify coming to the aid

of another, and those where the actions of the aider, rather

than minimizing the effect of unlawful violent acts, aggravate

it, and it is for the fact finder to differentiate between these

scenarios.   Given these considerations, it was not inappropriate

for the judge to instruct the jury to consider whether the

defendant had no other alternatives than to employ deadly force.
                                                                 18


Accordingly, we conclude that the instructions, though imperfect

and confusing, did not constitute reversible error.

    b.   Excessive force instruction.   The defendant also argues

that the judge's instructions were erroneous because they

negated the possibility of a finding of so-called excessive

force manslaughter by first stating that the defendant was

required to avail himself of available alternatives before

employing deadly force and then instructing the jury as follows:

         "[T]here is one additional way in which the
    Commonwealth may prove that the defendant did not act
    in lawful defense of another. You will recall that I
    told you when I was explaining the legal concept of
    defense of another that a person may use no more force
    than is reasonably necessary in all of the
    circumstances to defend another person. If a person
    uses unreasonable force or excessive force, then he is
    not acting in lawful defense of another. Thus, if the
    Commonwealth proves that the defendant used excessive
    force in defending Shawn Buchanan, then it has proved
    that the defendant did not act in lawful defense of
    another. However, . . . excessive force in otherwise
    lawful defense of another is a mitigating
    circumstance, a mitigating circumstance that reduces
    the offense of murder to manslaughter."

    We agree with the defendant that the instructions

erroneously suggested that if he used excessive force, the

killing was murder and not manslaughter.   The instructions

plainly state that a person who uses "excessive force" did not

act in "lawful defense of another," and thus, inferentially, is

not entitled to the benefit of the defense and is thus guilty of

some degree of murder.   This formulation is contrary to the
                                                                    19


settled law.    "The proper rule, of course, is that where

excessive force is used in defense of another, the crime may be

mitigated from murder to manslaughter."      Young, 461 Mass. at

212.

       Put differently, "the use of excessive force in defense of

another does not cause the defendant to lose the benefit of the

defense entirely . . . but instead may warrant a finding of

manslaughter."    Commonwealth v. Johnson, 412 Mass. 368, 371

(1992).     Although a person who uses excessive force in defense

of another loses the justification for using force and is

therefore not relieved of criminal liability, in such cases,

"the degree of criminal liability becomes the issue, and the

defendant's guilt may be mitigated if, in the circumstances, he

had a right to use force in defense of another, but used

excessive force."     Id. at 373.   Here, we conclude that the

judge's instructions failed to distinguish adequately between

"justification and mitigation . . . [leaving the jury] with no

correct understanding of the defendant's principal . . .

defense."    Id. at 373.

       The judge went on to explain that if the Commonwealth

failed to prove that the defendant did not subjectively believe

that Buchanan was in imminent danger of serious injury or death,

or that his belief was not objectively reasonable, and that the

defendant failed to avail himself of other available
                                                                    20


alternatives before employing deadly force, but that "the

Commonwealth has proved beyond a reasonable doubt that the

defendant used excessive force in self-defense [sic], then you

would be warranted in finding the defendant guilty of

manslaughter."

    This part of the instruction did not cure the misstatement

of law in the preceding paragraph.   Although the second

instruction is mostly correct, the judge appears to have

mistakenly used the term "self-defense" instead of "defense of

another."   In addition to being confusing, the second

instruction also failed to "make it clear to the jury that it

carried more weight than . . . the incorrect one" (citation and

quotation omitted).   Commonwealth v. Lapage, 435 Mass. 480, 484

(2001).   Nor did the judge acknowledge or tell the jury that his

initial instruction on manslaughter was erroneous.    Id. at 485.

This error was exacerbated by the imprecise quality of the

instructions as a whole.

    We conclude that these errors were prejudicial.      Although

the insertion of self-defense principles into the instructions

on defense of another did not, in this case, constitute

reversible error, the confusing nature of the instructions on

both defense of another and excessive force manslaughter, taken

together, created a strong possibility that the jury believed

that if the defendant used excessive force in defense of
                                                                    21


another, he did not act in the lawful defense of another, and a

finding of murder in the second degree was required.      See Kelly,
470 Mass. at 688.   Accordingly, there must be a new trial.10

    3.    Defendant's firearm convictions.    a.   Commonwealth's

burden of proof.    Citing the dissent in Powell v. Tompkins, 783
F.3d 332, 349 (1st Cir. 2015) (Torruella, J., dissenting), the

defendant argues that he was entitled to a required finding of

not guilty on his firearm convictions because the Commonwealth

presented no evidence that he lacked the required firearm

licenses, and thus failed to prove beyond a reasonable doubt

that he did not have a license to carry.     We have addressed this

issue on several occasions, and consistently reaffirmed "that

under Massachusetts law, licensure is an affirmative defense,

not an element of the crime."   Commonwealth v. Norris, 462 Mass.

at 145.   See Commonwealth v. Gouse, 461 Mass. 787, 802–808

(2012); Commonwealth v. Powell, 459 Mass. 572, 582 (2011), cert.

denied, 132 S. Ct. 1739 (2012) (affirming Powell v. Tompkins,

    10
       The defendant makes two other arguments that we need not
belabor given that we have ordered a new trial. First, the
parties agree that the prosecutor misstated certain aspects of a
witnesses' testimony in her closing argument. We conclude that
these statements, though careless, did not impact the jury's
verdict, and assume that the misstatements will be avoided at a
retrial. Second, any improper appeal to sympathy intended by
the testimony of the victim's family member did not "make
plausible an inference that the [jury's] result might have been
otherwise but for the error." Commonwealth v. Alphas, 430 Mass.
8, 13 (1999), quoting Commonwealth v. Miranda, 22 Mass. App. Ct.
10, 21 (1986).
                                                                  22


supra at 335); Commonwealth v. Jones, 372 Mass. 403, 406 (1977).

Accordingly, the defendant bore the burden of producing evidence

that he held a license, and he failed to carry that burden.    The

Commonwealth was therefore not required to prove that he did not

have a license, and the defendant was not entitled to a required

finding of not guilty.

    b.     Second Amendment challenge.   The defendant also

contends that the firearms indictments should be dismissed

because the statutes banning large capacity magazines violate

the Second and Fourteenth Amendments to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights.    In cases raising similar claims, we have held that a

defendant may not challenge his convictions under G. L. c. 269,

§ 10 (h) (1), as unconstitutional under the Second Amendment

where he has not otherwise made a showing that he has applied

for (and was denied) a firearm identification card.     See Powell,
459 Mass. at 589-590; Commonwealth v. Johnson, 461 Mass. 44, 58

(2011); Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011).

Those rulings apply in equal force to the defendant's case, and

his challenges to the licensing statute accordingly fail.

    For these reasons, we reverse the defendant's conviction of

murder in the second degree and remand the matter for a new

trial.    His remaining convictions are affirmed.

                                     So ordered.
    GANTS, C.J. (dissenting).   The court reverses the

defendant's conviction of murder in the second degree because it

concludes that the following jury instruction "failed to

adequately distinguish between 'justification and mitigation,'"

ante at   , and "created a strong possibility that the jury

believed" that they were precluded from finding the defendant

guilty of manslaughter if they found that the defendant used

excessive force in defense of another, ante at     :

         "[T]here is one additional way in which the
    Commonwealth may prove that the defendant did not act in
    lawful defense of another. You will recall that I told you
    when I was explaining the legal concept of defense of
    another that a person may use no more force than is
    reasonably necessary in all of the circumstances to defend
    another person. If a person uses unreasonable force or
    excessive force, then he is not acting in lawful defense of
    another. Thus, if the Commonwealth proves that the
    defendant used excessive force in defending Shawn Buchanan,
    then it has proved that the defendant did not act in lawful
    defense of another. However . . . excessive force in
    otherwise lawful defense of another is a mitigating
    circumstance, a mitigating circumstance that reduces the
    offense of murder to manslaughter."

    I dissent because this instruction was not erroneous, and

is consistent in substance with the Model Jury Instructions on

Homicide approved by this court on March 21, 2013, approximately

one year after this case was tried.

     The judge's instructions made clear that the Commonwealth

bore the burden of proving beyond a reasonable doubt that the

defendant did not act in defense of another.   The judge properly

instructed the jury that, where a defendant used deadly force in
                                                                    2


defense of another, "the proper exercise of defense of another

person" requires that:   (1) the defendant actually believed that

another person was in imminent danger of serious harm or death,

(2) the defendant's belief was objectively reasonable, (3)

"there was no other way to avoid the attack" except with deadly

force, and (4) the use of deadly force was not excessive, that

is, the defendant used "no more force than [was] reasonably

necessary in all of the circumstances to defend another person."

The judge also made clear that, because all four of these

propositions are required for the proper exercise of defense of

another, the Commonwealth may satisfy its burden of showing that

the defendant did not act in "lawful defense of another" by

proving beyond a reasonable doubt "any one of the following

propositions":

    (1) the defendant did not believe that Shawn Buchanan was

in imminent danger of serious injury or death;

    (2) if the defendant believed Buchanan was in such danger,

the defendant's belief was not objectively reasonable;

    (3) the defendant failed to avail himself of available

alternatives before using deadly force; or

    (4) the defendant used unreasonable or excessive force in

defending Buchanan.

    This is a correct statement of law.   If the Commonwealth

were to prove any of these four propositions beyond a reasonable
                                                                   3


doubt, the defendant did not act in lawful defense of another,

and therefore was not justified in using deadly force and may be

found guilty of a crime, provided the elements of that crime are

proven.   See Commonwealth v. Young, 461 Mass. 198, 210 (2012)

("defense of another tracks the law of self-defense");

Commonwealth v. Glacken, 451 Mass. 163, 167 (2008) (describing

Commonwealth's burden where there is evidence of self-defense).

See also Model Jury Instructions on Homicide 33-35 (2013).

     The judge also informed the jury that, if the Commonwealth

proved beyond a reasonable doubt that the defendant used

excessive force, then the defendant did not act in lawful

defense of another but the jury "would be warranted in finding

the defendant guilty of manslaughter."1   The judge earlier had

explained that "excessive force in otherwise lawful defense of

another is a mitigating circumstance . . . that reduces the

offense of murder to manslaughter."

     These are correct statements of law.   See Commonwealth v.

Silva, 455 Mass. 503, 525-526 (2009) ("One of the elements of

self-defense is the reasonableness of the force used to defend

     1
       The judge misspoke here in that he told the jury that, if
the Commonwealth were to prove beyond a reasonable doubt that
"the defendant used excessive force in self-defense, then you
would be warranted in finding the defendant guilty of
manslaughter" (emphasis added). But where the judge had just
told the jury to focus on the defendant's defense of Shawn
Buchanan, not himself, there is no material risk that the jury
were confused by this mistaken reference to self-defense.
                                                                    4


oneself, and if the Commonwealth fails to disprove all the

elements of self-defense except the element of reasonableness of

the force used, i.e., that the defendant used excessive force in

self-defense, then self-defense does not lie, but excessive

force in self-defense will mitigate murder to voluntary

manslaughter").   Where the Commonwealth proves beyond a

reasonable doubt that a defendant used excessive force in

defense of another, two separate legal consequences are

triggered:   the defendant's claim that he was justified in using

deadly force is defeated and therefore he is not entitled to an

acquittal but, if the defendant was otherwise justified in

defending another but for his excessive use of force, the crime

of murder is mitigated to manslaughter.

     Our current Model Jury Instructions on Homicide, which, as

noted earlier, had not been approved when this case was tried,

are structured differently from the judge's instructions in that

the model instructions separate justification from mitigation,

but the judge's instructions here are consistent with their

substance.   Where there is evidence of self-defense (but no

evidence that the defendant was the initial aggressor),2 our

model jury instructions provide in relevant part:


     2
       Because our model homicide instruction regarding defense
of another "is premised on the jury having earlier been
instructed as to the law of self-defense," Model Jury
                                                                   5


         "A person is not guilty of any crime if he acted in
    proper self-defense. It is the Commonwealth's burden to
    prove beyond a reasonable doubt that the defendant did not
    act in proper self-defense. . . . If the Commonwealth
    fails to prove beyond a reasonable doubt that the defendant
    did not act in proper self-defense, then you must find the
    defendant not guilty.

         ". . .

         "The Commonwealth satisfies its burden of proving that
    the defendant did not act in proper self-defense if it
    proves any one of the following four . . . propositions
    beyond a reasonable doubt:

         "1. The defendant did not actually believe that he
    was in immediate danger of death or serious bodily harm
    from which he could save himself only by using deadly
    force. Deadly force is force that is intended or likely to
    cause death or serious bodily harm.

         "2. A reasonable person in the same circumstances as
    the defendant would not reasonably have believed that he
    was in immediate danger of death or serious bodily harm
    from which he could save himself only by using deadly
    force.

         "3. The defendant did not use or attempt to use all
    proper and reasonable means under the circumstances to
    avoid physical combat before resorting to the use of deadly
    force.

         "4. The defendant used more force than was reasonably
    necessary under all the circumstances" (footnotes omitted).

Model Jury Instructions on Homicide 19-21 (2013).

    Our model jury instructions separately discuss excessive

use of force in self-defense or defense of another as a

mitigating circumstance that the Commonwealth must negate beyond


Instructions on Homicide 32 (2013), it is simpler to refer to
our instruction regarding self-defense than defense of another.
See Commonwealth v. Young, 461 Mass. 198, 210 (2012).
                                                                   6


a reasonable doubt to prove a defendant guilty of murder in the

first or second degree.   Our instructions provide, "A killing

that would otherwise be murder in the first or second degree is

reduced to the lesser offense of voluntary manslaughter if the

defendant killed someone under mitigating circumstances."   Id.

at 42.   In describing excessive use of force in self-defense or

defense of another as a mitigating circumstance, our model jury

instructions provide in relevant part:

         "As I have explained to you earlier, a person is not
    guilty of any crime if he acted in proper self-defense [or
    defense of another]. The Commonwealth must prove beyond a
    reasonable doubt that the defendant did not act in the
    proper exercise of self-defense [or defense of another].
    If the Commonwealth fails to do so, then you must find the
    defendant not guilty because [with the exception of felony-
    murder] an element of the crime that the Commonwealth must
    prove beyond a reasonable doubt is that the defendant did
    not act in the proper exercise of self-defense [or defense
    of another].

         "In this case, you must consider whether the defendant
    used excessive force in defending himself [or another].
    The term excessive force in self-defense means that,
    considering all the circumstances, the defendant used more
    force than was reasonably necessary to defend himself [or
    another]. . . .

         "I have already told you that to prove the defendant
    guilty of murder, the Commonwealth is required to prove
    beyond a reasonable doubt that the defendant did not act in
    the proper exercise of self-defense [or the defense of
    another]. If the Commonwealth proves that the defendant
    did not act in proper self-defense [or in the proper
    defense of another] solely because the defendant used more
    force than was reasonably necessary, then the Commonwealth
    has not proved that the defendant committed the crime of
    murder but, if the Commonwealth has proved the other
    required elements, you shall find the defendant guilty of
    voluntary manslaughter" (footnotes omitted).
                                                                     7



Id. at 69-71.

     To be sure, our model jury instructions regarding excessive

use of force in defense of another are clearer than the judge's

instructions regarding this issue, but the judge did not have

the benefit of those instructions when this case was tried and

his instructions are consistent with them.   The judge's

instructions are also consistent with the Model Jury

Instructions on Homicide that were in effect at the time of

trial, which were no clearer than the judge's instructions.3    If

the jury were confused by this instruction, they could have

listened to the recording of the instructions provided to them

by the judge (with the tape recorder made available to them), or

     3
       The Model Jury Instructions on Homicide in effect at the
time of trial declared, "A homicide is excused and is therefore
not a crime if it results from the proper exercise of self-
defense." Model Jury Instructions on Homicide 55 (1999). In
describing the law of self-defense, the model jury instructions
later provided, "A person may use no more force than is
reasonably necessary in all of the circumstances to defend
himself." Id. at 57. Separately, the model jury instructions
provided:

          "The Commonwealth has the burden of proving beyond a
     reasonable doubt the absence of self-defense. If the
     Commonwealth fails to prove beyond a reasonable doubt the
     absence of self-defense, your verdict must be not guilty
     with respect to the crimes of murder or voluntary
     manslaughter. If, however, the Commonwealth does prove
     excessive force in an effort to defend oneself, you would
     be justified in finding the defendant guilty of voluntary
     manslaughter."

Id. at 30.
                                                                   8


they could have sought clarification through a jury question

(none were asked).

     Having chaired the committee that redrafted the Model Jury

Instructions on Homicide, I can attest that it is very difficult

to explain clearly to a jury that a defendant does not act in

lawful defense of another where he uses excessive force, but if

the use of excessive force is the only reason why the killing

was not lawful, the defendant is guilty of voluntary

manslaughter, not murder in the first or second degree, provided

the elements of that offense have been proven.   The judge's

instructions regarding this challenging issue were not a model

of clarity, but they were not erroneous.   Nor were they so

confusing that a reasonable jury could not understand them.

Nor, where the judge explicitly told the jury that "excessive

force in otherwise lawful defense of another is a mitigating

circumstance, a mitigating circumstance that reduces the offense

of murder to manslaughter" (emphasis added), can it reasonably

be said that these instructions "created a strong possibility"

that the jury believed that they were precluded from finding the

defendant guilty of manslaughter if they believed that the

defendant used excessive force in defense of another.   Ante at

.   For these reasons, I would not reverse this conviction

because of those instructions.