By the Court (KATZMANN, RUBIN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We address first the issue raised by the defendant in his supplemental memorandum. The question in this assault and battery case was in essence one of self-defense and whether the alleged victim, the defendant's brother-in-law, was the first aggressor in a fight between him and the defendant. There was testimony from Officer Linnehan of the Springfield police department and others, that, after responding in person to a 911 call made by the defendant, and speaking with the defendant and the alleged victim at the house where the altercation occurred, the officer made a determination to arrest the defendant, rather than the alleged victim. In addition, near the end of her closing, the prosecutor stated that Officer Linnehan “spoke with the defendant and he spoke with the victim, ... when he arrived at the scene. And after speaking with both of them, and after viewing both of them, he placed the defendant under arrest and [the alleged victim] went to the hospital to be treated for his injuries.” The reliance on this testimony goes beyond the mere mention of an arrest of the type addressed in Commonwealth v. Novo, 449 Mass. 84, 95 (2007), in which the court concluded that the testimony was not problematic because “[t]he jury already knew that the defendant was charged with murder.” This case involved repeated testimony implying that the officer had concluded that the defendant rather than the alleged victim was the first aggressor. Indeed, this testimony was utilized by the prosecutor in her closing precisely to imply that the officer had reached this conclusion.
Subsequent to the completion of briefing in this case, the defendant filed a motion to file a supplemental brief raising an additional issue. The court granted that motion and we have received a supplemental memorandum from the defendant and a response by the Commonwealth.
This testimony was excludable as irrelevant. Nonetheless, there was no objection at trial, and the error did not create a substantial risk of a miscarriage of justice. The Commonwealth's case was very strong. The defendant's argument was self-defense. In light of the injuries sustained by the victim, and the absence of injuries observed on the defendant, as well as the contradictory testimony of the defendant and his son, there was little evidence to support the proposition that he had availed himself of all reasonable means to avoid physical combat, or that he did not use excessive force against the alleged victim, two essential elements of a claim of self-defense. See Commonwealth v. Haddock, 46 Mass.App.Ct. 246, 248–249 (1999)). Since we find no substantial risk of a miscarriage of justice, it follows that defense counsel's failure to object, even if it fell below the standard expected of effective counsel, did not deprive the defendant of a substantial ground of defense. See Commonwealth v. Richmond, 379 Mass. 557, 562–563 & n.4 (1980).
There was no objection to the jury instructions which included full and proper instructions on self-defense.
As to the claim that the order of restitution must be reversed, the judge clearly considered the defendant's ability to pay, as reflected both in the judge's proper articulation of the legal standard, his allowing argument on the question, and in his decision which, among other things, allowed the defendant eighteen months to complete payment of the restitution. See Commonwealth v. Nawn, 394 Mass. 1, 8–9 (1985). Beyond that, the defendant has not demonstrated that the judge abused his discretion in determining that the defendant had the ability to pay the restitution under the terms and conditions specified.
Judgment affirmed.
Restitution order affirmed.
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