Com. v. DeCaro

• Decision Date: 30 April 1971
• Parties: COMMONWEALTH v. Victor C. DeCARO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 673

269 N.E.2d 673

359 Mass. 388

COMMONWEALTH v. Victor C. DeCARO.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 8, 1970.

Decided April 30, 1971.

Jay M. Forgotson, Boston, for defendant.

William R. Flynn, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.

REARDON, Justice.

The defendant was convicted in the Superior Court of manslaughter in a trial held subject to G.L. c. 278, §§ 33A--33G, and the case is now before us on assignments of error. Relevant facts will be discussed as necessary in dealing with the points raised by the defendant.

1. The defendant objects to the judge's charge on the law of self-defence and his rejection of four of the defendant's requested instructions on this subject. The charge was complete and correct. To the extent that the requested instructions were accurate statements of the law of self-defence, their substance was fully covered in other words by the judge. The requested instructions related to the right, in the words of the charge, to use 'appropriate and adequate means to protect * * * (oneself)' when one 'reasonably * * * (thinks) that his personal safety or life * * * (is) in peril.' In reacting to the situation, 'he is to be judged by the circumstances then existing.'

The defendant's objection centers on the fact that the judge also charged the jury that the right of self-defence arises only when there are no avenues of escape open to the one attacked, whereas the requested instructions would have had the defendant judged entirely on whether he reacted reasonably to the situation as he saw it, regardless of whether he was able to retreat and so avoid the fight. The judge was also correct, however, in this aspect of the charge. It is well settled in this Commonwealth that '(t)he right of self-defence does not accrue to a person until he has availed all proper means to avoid physical combat.' Commonwealth v. Kendrick, 351 Mass. 203, 212, 218 N.E.2d 408, 414; Commonwealth v. Peterson, 257 Mass. 473, 477, 154 N.E. 260; Commonwealth v. Trippi, 268 Mass. 227, 232, 167 N.E. 354; Commonwealth v. Houston, 332 Mass. 687, 690, 127 N.E.2d 294; Commonwealth v. Hartford, 346 Mass. 482, 490, 194 N.E.2d 401. Whatever qualification of this principle might be proper in cases where the defendant is attacked with deadly force is not applicable here, where neither the defendant nor the victim was armed and it was evident that 'neither * * * (had) a purpose to kill the other or to inflict on him serious or grievous bodily harm.' Commonwealth v. Peterson, supra, 257 Mass. at 477--478, 154 N.E. at 262. The defendant's contentions that there is no requirement of retreat where nondeadly force is used in defence, or where the attack occurs at the place of employment of the one attacked, find no support in our law. His argument that 'detached reflection' should not be required of the one attacked is based on a clearly inaccurate interpretation of the substance of the judge's charge, as the brief portions quoted above illustrate.

Finally, the defendant argues that because the judge did not explicitly so state, the jury might not have realized that if they found the defendant acted in self-defence he was entitled to a verdict of not guilty. We cannot feel the drawing of this inference from the judge's extensive charge on the 'right' of self-defence was an undue strain on the jury's intelligence, or that they did not in fact draw it.

2. The defendant's second objection stems from the statement of the prosecutor in his closing argument to the effect that the defendant was a mere interloper in the quarrel which resulted in the victim's death and that he had no right to initiate it as he did. The defendant had testified, on the contrary, that he was employed to '(work) the floor' at the lounge where the incident occurred. (It was agreed that the victim, his wife and sister had visited the lounge and left without having touched or paid for their drinks, and that the defendant went after them to ask them to pay. The victim was killed as a result of a blow from the defendant on the landing outside the front door of the lounge. The blow caused him to fall backward and to hit his head on the concrete stairs and the parking lot below.) There was no direct evidence that the defendant was not an employee. However, two waitresses were called as witnesses by the defence and not questioned on this subject. A written statement of one, Gladys Heath, which was admitted at the trial could indicate that he was not employed there. ¹ In addition, the owner of the lounge, who was present at the trial, was not called as a witness by the defence. The prosecutor pointed out this fact, as well as the ambiguous nature of Mrs. Heath's written statement, to support his position.

After the closing argument, counsel for the defendant requested the judge to instruct the jury that the defence had no obligation to introduce further evidence on the fact of the defendant's employment and that no inference should be drawn from its failure to do so. This request was refused. The defendant contends that the prosecutor's closing argument was improper and prejudicial, especially in light of the refusal of the judge to correct it in his charge. We do not agree. ² The prosecutor did not distort the evidence before the jury. The fact that he did not challenge on cross-examination the defendant's statement that he was employed at the lounge did not preclude him from raising this issue in his closing argument. In commenting on the evidence, the prosecutor did no more than point up weaknesses in...