Commonwealth v. William P. Regan.

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-78

COMMONWEALTH

vs.

WILLIAM P. REGAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, William P. Regan, appeals from his

conviction, after a jury trial in the District Court, of assault

and battery by means of a dangerous weapon, G. L. c. 265,

§ 15A (b).1 Concluding that the trial judge properly denied the

defendant's request for a jury instruction on self-defense where

there was no evidence that the defendant used all reasonable

means to avoid combat, we affirm.

1. Standard of review. The defendant made timely

requests, before and during trial, that the judge instruct the

jury on the issue of self-defense and made timely objections

1The defendant raises no challenge to his conviction of
negligent operation of a motor vehicle, G. L. c. 90,
§ 24 (2) (a).
when the judge denied the requests. "We therefore review to

determine whether the failure to instruct was error and, if it

was, whether the error was prejudicial." Commonwealth v. White,

103 Mass. App. Ct. 655, 658 (2024), quoting Commonwealth v.

Graham, 62 Mass. App. Ct. 642, 651 (2004).

2. Self-defense instruction. "A defendant is entitled to

have the jury . . . instructed on the law relating to self-

defense if the evidence, viewed in its light most favorable to

him, is sufficient to raise the issue." Commonwealth v. Espada,

450 Mass. 687, 692 (2008), quoting Commonwealth v. Harrington,

379 Mass. 446, 450 (1980). "[I]t must appear that the person

[claiming self-defense] had a reasonable apprehension of great

bodily harm and a reasonable belief that no other means would

suffice to prevent such harm." Commonwealth v. Benoit, 452

Mass. 212, 226 (2008), quoting Commonwealth v. Pike, 428 Mass.

393, 396 (1998). Specifically, the person claiming self-defense

must "use all reasonable means to avoid physical combat."

Commonwealth v. Fayad F., 495 Mass. 266, 277 (2025), quoting

Commonwealth v. King, 460 Mass. 80, 83 (2011). "Self-defense is

generally unavailable where the confrontation occurs on a public

street and 'where "there is no evidence that the principal was

not able to walk away."'" Commonwealth v. Ortega, 480 Mass.

603, 611 (2018), quoting Commonwealth v. Avila, 454 Mass. 744,

769 (2009).

2
Here, the defendant was not entitled to a self-defense

instruction as the evidence, even when viewed in the light most

favorable to the defendant, shows that he was able to retreat

and did not do so. See Espada, 450 Mass. at 693. It is

undisputed that, after the victim shouted at the defendant and

stepped towards him, the defendant responded by accelerating

away from the victim,2 passing two vehicles in the same lane of

travel, and circling around to face the victim. A city camera

video capturing the entire incident shows an empty lane of

traffic in the opposite direction, permitting the defendant to

continue to drive away, on the double yellow lines, as he passed

vehicles in his lane of traffic. Indeed, after striking the

victim, this is the exact avenue the defendant used to leave the

scene. In his testimony, the defendant recognized that he had

reasonable alternatives other than stopping on the sidewalk,

admitting, "I could have done a few things, you know." See

Commonwealth v. Toon, 55 Mass. App. Ct. 642, 653 (2002) ("There

was simply no evidence that an avenue of escape was unavailable

to the defendant at the start of the confrontation").

2 As the trial judge explained, "[t]he actions as they
happen on the street do not give rise to self-defense because
your client created the distance and once he drives away, self-
defense is eviscerated." See Commonwealth v. Toon, 55 Mass.
App. Ct. 642, 653 (2002).

3
Furthermore, the defendant's argument that he was unable to

retreat once he was on the sidewalk is not supported by any

evidence. Although there was a wall to the defendant's left,

the video footage revealed that there was ample space to the

defendant's right to allow the defendant to reenter his previous

travel lane. Indeed, the defendant admitted at trial that he

could have driven to the right of the stopped vehicles in the

road. See Fayad F., 495 Mass. at 276 ("Even if the juvenile had

not known that the victim intended to engage in a physical

altercation and the juvenile had not ascended the stairs with

the intent to assault the victim, once the victim took the first

swing at the juvenile, the juvenile had multiple avenues of

escape that he did not use"). Accordingly, the trial judge

properly denied the defendant's request for an instruction on

self-defense as there was no evidence, even when viewed in the

light most favorable to the defendant, that he used all means to

4
avoid combat.3

Judgment affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.4),

Clerk

Entered: April 1, 2025.

3 We need not address the defendant's argument that the
trial judge erred in excluding the defendant's proposed
testimony that he knew the victim always carried a penknife.
This evidence went to the reasonableness of the defendant's fear
of the victim but had no relevance to the issue of retreat. See
Pike, 428 Mass. at 397 ("Whether the defendant's fear of attack
was reasonable is a factual question, depending upon a number of
circumstances, such as whether the victim was armed and the
physical size of the victim"). A knife is not a weapon that
would have affected the reasonableness of retreating by motor
vehicle. See Ortega, 480 Mass. at 612 (2018) ("If the weapon
requires close proximity to inflict injury and threaten death,
then retreat in an open space becomes a more viable option so
long as the aggressor is not within range to use the weapon").
Accordingly, this evidence could not have affected the result of
the trial.

4 The panelists are listed in order of seniority.

5