Commonwealth v. Mark W. Thibeau.

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

24-P-652

COMMONWEALTH

vs.

MARK W. THIBEAU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant was convicted of assault and battery as a lesser

included offense of assault and battery by means of a dangerous

weapon (tree).1 The defendant moved for a new trial on the basis

of ineffective assistance of counsel, which was denied after a

nonevidentiary hearing. On appeal, the defendant argues that

erroneous jury instructions on self-defense created a

substantial risk of a miscarriage of justice and that the judge

erred in denying his motion for a new trial because he raised

substantial issues regarding trial counsel's failure to

1Upon the defendant's motion, a required finding of not
guilty entered on the charge of witness intimidation at the
close of the Commonwealth's case.
investigate and discover evidence relating to the victim. The

defendant also argues that the judge erred by denying his motion

for a new trial without first holding an evidentiary hearing.

We affirm.

Background. On the morning of February 15, 2019, Daniel

Chaparro's older brother paid him a visit at his home in Jamaica

Plain.2 Outside Daniel's front door, the two discussed an

altercation that Daniel had earlier had with a neighbor.

According to Daniel, the neighbor had "jumped" him as he was

coming home with groceries, and he had reported the neighbor to

the police. Daniel and the neighbor had "stay away" orders

against each other and everyone in the neighborhood knew about

the incident. As the defendant passed by the brothers

conversing, he interjected something to the effect that Daniel

should have a fair fight with the neighbor.

Because the defendant was "talking crap" to him, Daniel

picked up his metal cane hanging on a fence and began walking.

The defendant went around the corner out of sight and then

returned carrying a "gigantic stick" or "tree branch," holding

it "like a baseball bat, like he's going to swing." Daniel's

brother got in the middle and said to the defendant, "No, no, he

doesn't want to fight" and "Leave it alone. It's over." The

2 Daniel and his brother share last names. We refer to
Daniel by his first name to distinguish him from his brother.

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defendant pushed Daniel's brother out of the way in an effort to

reach Daniel.3 As the defendant continued to swing the branch,

another neighbor came up from behind the defendant and knocked

the branch out of his hand. The defendant ran away but then

returned with yet another stick. At this point, Daniel called

the police.

The defendant presented no evidence at trial but pursued a

theory of self-defense.

Discussion. On appeal, the defendant contends that the

judge erred in denying, without an evidentiary hearing, his

motion for a new trial, which was based on ineffective

assistance of counsel. Because the judge who denied the motion

was not the trial judge and did not hold an evidentiary hearing,

we review the judge's ruling de novo. Commonwealth v. Mazza,

484 Mass. 539, 547 (2020).

A motion for a new trial may be granted "at any time if it

appears that justice may not have been done." Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). Such a motion

may be denied without an evidentiary hearing when no substantial

issue is raised. See Mass. R. Crim. P. 30 (c) (3), as appearing

in 435 Mass. 1501 (2001). In determining whether the defendant

raised a substantial issue, the judge will consider the

3 The push is the basis of the assault and battery
conviction.

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seriousness of the issue asserted and the adequacy of the

defendant's showing on that issue. Commonwealth v. Stewart, 383

Mass. 253, 257-258 (1981).

Here, the defendant's motion for a new trial was premised

on a claim of ineffective assistance of counsel at trial. In

order to make out a claim for ineffective assistance, the

defendant must show that trial counsel's performance fell

measurably below what is expected of an ordinary fallible lawyer

and that such substandard performance deprived the defendant of

an otherwise available and substantial ground of defense.

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The

defendant raised two grounds of ineffective assistance in his

motion: (1) the failure to object to an allegedly erroneous

jury instruction on self-defense and (2) the failure to

investigate and discover evidence relating to the nontestifying

victim.

1. Witness investigation. The defendant claims that trial

counsel rendered ineffective assistance by failing to

investigate and uncover the criminal record of Daniel's brother,

the victim of the assault and battery. He argues that, even

though Daniel's brother did not testify, his significant

criminal record could have been used to impeach him as the

declarant of hearsay statements. See Commonwealth v. Mahar, 430

Mass. 643, 649-650 (2000) (hearsay declarant may be impeached by

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any evidence admissible if declarant had testified). Given that

the statements consisted of "No, no, he doesn't want to fight"

and "Leave it alone. It's over," it is unclear what value such

impeachment would carry, particularly in light of the video

recording evidence of the crime.

Likewise, the defendant's claim that the criminal

background information of Daniel's brother could have been used

to support the theory that both Daniel and his brother were the

first aggressors might have some force, if it were not for the

strength of the video recording evidence. See Commonwealth v.

Adjutant, 443 Mass. 649, 654 (2005) (victim's violent character

relevant to establishing first aggressor in claim of self-

defense). Thus, even if trial counsel's performance was to be

deemed substandard for failing to investigate the criminal

background of a nontestifying victim, the defendant failed to

establish that he was deprived of an otherwise available ground

of defense.

2. Jury instructions on self-defense. The defendant

argues that the judge deviated from the model jury instructions

in a manner that shifted the burden of proof on self-defense and

failed to guide the jury's consideration of factors relevant to

self-defense. Where no objection to the instructions was raised

at trial, we review for a substantial risk of a miscarriage of

justice. See Commonwealth v. Russell, 439 Mass. 340, 345 (2003)

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(motion for new trial premised on unobjected-to instructions —-

whether based on error itself or framed as claim of ineffective

assistance of counsel —- reviewed solely to determine whether

error gives rise to substantial risk of miscarriage of justice).

Here, the judge prefaced the instructions on the elements

of the crimes with the following:

"In this particular case, the defendant has raised the
claim that if, in fact, he used any force, he was acting in
self-defense. . . . And I will explain to you in greater
detail that it's not up to the defendant to prove that he
acted in self-defense because, you remember, the
Commonwealth has the burden of proof. So when a claim of
self-defense is raised under our system of law, it is the
Commonwealth who has the burden of establishing that beyond
a reasonable doubt that the defendant was not entitled to
use force in these circumstances because in order to use
force, certain conditions have to be met."

Later, after instructing on the elements of the crimes, the

judge returned to self-defense:

"Now a person in Massachusetts, in our Commonwealth is
allowed to act in self-defense. And if there is evidence
of self-defense in this case as the defendant claims, and
again, it's up to you to decide whether or not there is,
but if you find that there is, then you must then go on to
decide whether the Commonwealth has proven beyond a
reasonable doubt that the defendant did not act in self-
defense. If you have a reasonable doubt whether or not the
defendant acted in self-defense, your verdict must be not
guilty."

At the conclusion of the self-defense instructions, the

judge restated the jury's obligation with respect to the

elements of the crimes and added:

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"In conjunction with this before you reach your verdict,
you must decide whether the defendant's claim of self-
defense has been disproven by the Commonwealth. Again, it
is the Commonwealth's burden if you find that the
defendant's claim that he -- that any force was used, he
was acting in self-defense, it is up to the Commonwealth to
establish that he was not entitled to use force because one
of the three conditions was not present."

Despite the repeated references to the Commonwealth's

burden to disprove self-defense, the defendant argues that these

instructions conveyed to the jury that the Commonwealth's burden

was contingent on the jury making certain "findings," implicitly

to be based on matters for which the defendant bore

responsibility. It is true that courts have disapproved of

language framing self-defense in terms of a "claim," "right," or

"defense," which necessitates "findings" as to the

reasonableness of the defendant's behavior, because it suggests

the need to conclude that the defendant's conduct was proper

before the jury can return a not guilty verdict. See

Commonwealth v. Mejia, 407 Mass. 493, 495-496 (1990).

Here, however, the "finding" language was not tied to the

"reasonableness in several particular respects of the

defendant's behavior." Mejia, 407 Mass. at 495. Rather, it

appears that the judge was referring to whether the jury

determined that the defendant used any force at all. In other

words, the judge was cognizant of the fact that the jury may

have disbelieved the Commonwealth's evidence as to the

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defendant's alleged conduct, and the language was chosen so as

not to tread on the jury's fact-finding role; it did not

intimate that the defendant had to clear some hurdle before

being able to rely on self-defense. See Commonwealth v. Owens,

414 Mass. 595, 607 (1993) (instructions must be viewed as whole

in attempt to determine "probable impact, appraised

realistically . . . upon the jury's factfinding function"

[citation omitted]).

With respect to the argument that the judge failed to give

appropriate guidance on the limitations of the duty to retreat,

the judge did instruct that the Commonwealth could meet its

burden of negating self-defense by proving beyond a reasonable

doubt that:

"the defendant did not do everything reasonable in the
circumstances to avoid physical combat before resorting to
force . . . A person cannot lawfully act in self-defense
unless he has exhausted all other reasonably -- reasonable
alternatives before resorting to force. A person may use
physical force in self-defense only if he could not get out
of the situation in some other way that was available and
reasonable at the time. And the Commonwealth may prove the
defendant did not act in self-defense by proving beyond a
reasonable doubt that the defendant resorted to force
without using avenues of escape that were reasonably
available and which would not have exposed him to further
danger."

The defendant contends that the judge erred in failing to

give a supplemental instruction informing the jury that a

reasonable alternative to using force included "holding the

attacker at bay," and that sometimes, the use of force may be

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"the only means of protection in the circumstances" and that "a

person who is attacked may have to decide what to do quickly and

while under emotional strain." See Instruction 9.260,

Supplemental Instruction 2, of the Criminal Model Jury

Instructions for Use in the District Court (2009). Although

this additional language would have given a more fulsome

explanation of the limitations on the duty to retreat, its

absence did not render erroneous the instruction given. See

Commonwealth v. Marinho, 464 Mass. 115, 122 (2013) (judge was

not required to convey instructions using specific language as

long as legal concepts were properly conveyed).

Even if there had been error in the instructions, there is

no substantial risk of a miscarriage of justice. See

Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023)

(substantial risk of miscarriage of justice review looks to

whether there is serious doubt that result might have been

different without error). The jury had in evidence, not only

testimony, but also a video recording depicting the entire

interaction between the parties. The video recording

compellingly shows the defendant as the aggressor throughout

with every opportunity to walk away from the confrontation. It

is unlikely that the alleged errors in jury instructions would

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have altered the result. The defendant's motion for a new trial

was properly denied without a hearing.

Judgment affirmed.

Order denying motion for a
new trial affirmed.

By the Court (Ditkoff,
Singh & Smyth, JJ.4),

Clerk

Entered: August 6, 2025.

4 The panelists are listed in order of seniority.

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