Com. v. Goldoff

• Decision Date: 01 October 1987
• Citation: 24 Mass.App.Ct. 458,510 N.E.2d 277
• Parties: COMMONWEALTH v. Benjamin GOLDOFF.
• Court: Appeals Court of Massachusetts

Page 277

510 N.E.2d 277

24 Mass.App.Ct. 458

COMMONWEALTH v. Benjamin GOLDOFF.

Appeals Court of Massachusetts,

Suffolk.

Argued Feb. 13, 1987.

Decided July 15, 1987.

Further Appellate Review Denied Oct. 1, 1987.

Michael R. Schneider, Committee for Public Counsel Services (Joel A. Goodman, Committee for Public Counsel Services, Boston, with him), for defendant.

Joseph Kittredge, Legal Asst. to Dist. Atty. (David B. Mark, Asst. Dist. Atty., with him), for the Com.

Before PERRETTA, KAPLAN, and WARNER, JJ.

PERRETTA, Justice.

Returning to his apartment on the night of October 13, 1982, the victim entered the five-storied, ten-unit apartment building through the unlocked main door. He checked his mailbox and then unlocked the inner door that led into the common hallway of the first floor and to the staircase to his fourth-floor apartment. As he passed through the inner door and into the hallway, the victim saw the defendant coming down the stairs. He was carrying two paintings which the victim recognized to be his property. Words were exchanged, the defendant grabbed the victim by the collar of his coat, "slammed" him against the wall, and warned that he had a gun which he was prepared to use. On appeal from his conviction on an indictment brought under G.L. c. 266, § 14, the defendant makes four arguments: (1) because the assault took place in a common hallway and not the victim's apartment, as matter of law the victim was not assaulted within his "dwelling house"; (2) apparently in the alternative, whether the assault took place within the victim's "dwelling house" was a question of fact which the trial judge erroneously took from the jury in his instructions to them; (3) it was error to allow the jury to consider whether the defendant's trip to Florida and his subsequent default while these proceedings were pending were indicative of consciousness of guilt; and (4) because of "prejudicial excesses" in the prosecutor's closing argument, there is a substantial risk that a miscarriage of justice has occurred. We affirm.

I. A Dwelling House.

There was evidence to show that there are two apartment units on each of the five floors of the building in question. A fire escape connects to one of the bedroom windows of the victim's fourth-floor apartment. The door to the victim's unit leading to the fourth-floor common hallway is secured from within by what was described as a "police lock."

On the evidence presented, the jury could have found that the defendant gained access to the victim's apartment unit by climbing the fire escape and breaking and entering through the bedroom window. Once within the apartment unit, the defendant took the two paintings and left by the door to the unit, going into the common hallway and down the stairs. He met and assaulted the victim in the hallway on the first floor and then fled from the building via the inner and main doors.

General Laws, c. 266, § 14, provides in relevant part: "Whoever breaks and enters a dwelling house in the night time, with intent to commit a felony ... making an actual assault on a person lawfully therein, shall be punished...." The defendant's argument is straightforward. As the assault occurred within the common hallway and not within the victim's apartment unit, as matter of law the victim was not within his "dwelling house" when assaulted.

Section 14 does not define the term "dwelling house." As applied to a multi-family residential structure, such as an apartment building, the defendant would have us construe the term restrictively to mean the dweller's apartment unit and areas under his exclusive control. As support for his definition, he cites Commonwealth v. Thomas, 358 Mass. 771, 775, 267 N.E.2d 489 (1971); Commonwealth v. Dinnall, 366 Mass. 165, 167, 314 N.E.2d 903 (1974); Commonwealth v. Seay, 376 Mass. 735, 742-743, 383 N.E.2d 828 (1978); and Commonwealth v. Albert, 391 Mass. 853, 861-862, 466 N.E.2d 78 (1984).

"When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. See Commonwealth v. Gove, 366 Mass. 351, 354, 320 N.E.2d 900 (1974); Franki Foundation Co. v. State Tax Comm'n, 361 Mass. 614, 617, 281 N.E.2d 865 (1972). We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977), cited in Common- v. Correia, 17 Mass.App.Ct. 233, 235, 457 N.E.2d 648 (1983), where it was determined that for purposes of G.L. c. 266, § 14, a motel is a "dwelling house." In the cases cited by the defendant, the boundaries of a person's dwelling within an apartment building were set consistently with the legislative purposes there at issue.

Both Thomas and Dinnall, supra, concern the reasonableness of a tenant's expectation of privacy in areas of a multi-unit building which the tenant shared with others and to which others had access. It is consistent with constitutional guarantees to limit the reasonableness of a person's expectation of privacy to those areas to which others do not have access, without permission, to see or hear something expected to be secret or confidential. This principle applies uniformly to residents of a single and multi-family structure. " 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection' " (emphasis supplied). Dinnall, 366 Mass. at 167, 314 N.E.2d 903, quoting from Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Thomas involved a cellar available for use by all the tenants, 358 Mass. at 774, 267 N.E.2d 489, and Dinnall spoke to a hallway "which could be freely entered by anyone." 366 Mass. at 167.

In Seay, 376 Mass. at 742-743, 383 N.E.2d 828, and Albert, 391 Mass. 861-863, 466 N.E.2d 78, the court was concerned with the limited extent to which conduct not otherwise allowed is permitted by statutes for purposes of self-defense. Thus it has been determined that a tenant may carry a firearm without a license and may stand his ground rather than retreat in the face of force and be exempt from criminal liability so long as, in each instance, the tenant confines such conduct to the apartment unit. The restricted definition of "dwelling house" as applied to apartments given by these cases is consistent with the limited purpose, self-defense, of the express and implied statutory exemptions. See, respectively, G.L. c. 278, § 8A, the so-called "castle law," and G.L. c. 269, § 10(a ), as read with handgun licensing statutes in Seay, supra.

As to all the cases relied upon by the defendant (Thomas, Dinnall, Seay, and Albert, supra ), it can be said of each that the defendant-tenant's claim depended upon a right of exclusive use of those areas to which, it was contrarily found, there was free and open access and all the tenants had a right to come and go.

It is the purpose of burglary statutes, however, to prohibit that conduct which violates a person's right of security in a place universally associated with refuge and safety, the dwelling house. Cf. People v. Tomlins, 213 N.Y. 240, 243, 107 N.E. 496 (1914) ("Flight is for sanctuary, and shelter, and shelter, if not sanctuary, is in the home"). To further rather than frustrate the purpose of these statutes, the term "dwelling house" as used in the context of burglary always has been construed broadly. "By the common law, every house for the dwelling and habitation of man is taken to be a mansion house, wherein burglary may be committed.... Any outhouses, within the curtilage or some common fence as the mansion itself, must be considered as parcel of the mansion.... [I]f the outhouses be adjoining the dwelling house, and occupied as parcel thereof, though there be no common enclosure or curtilage, they may still be considered as parts of the mansion." Devoe v. Commonwealth, 3 Met. 316, 325-326 (1841). The "historical background of the burglary statutes, the traditional meaning given to 'dwelling' and 'dwelling house' by legal dictionaries and treatises," Commonwealth v. Correia, 17 Mass.App.Ct. at 236, 457 N.E.2d 648, show that the term may comprehend areas within a person's place of habitation but which are beyond his exclusive control.

When this historical right to security in one's place of habitation is considered in the context of contemporary multi-unit residential structures, we can think of no reason why that right should not apply to tenants who reach their apartment units by a common hallway which they have collectively secured from the general public by a locked door. See People v. Nunley, 154 Cal.App.3d 868, 203 Cal.Rptr. 153, 162 (1984) ("The legislative determination to treat residential burglaries more severely than others [see and compare G.L. c. 266, §§ 14 & 15, with §§ 16, 16A & 17] is predicated upon the 'statistically greater probability' that an occupant will be present and confronted by the intruder. The courts, in following the legislative intent, have found, for example, that felonious entry into an open carport is burglary of a dwelling house, as is such entry into an attached garage or enclosed patio. This reasoning applies with equal or greater force when the common areas of an apartment building (or condominium complex) are concerned. These areas are not open to the public; they comprise a portion of each occupant's dwelling house. The criminal who unlawfully enters there violates the habitation of each of them, and each is endangered by the possibility of confronting him or her" [citations omitted] ). See also Model Penal Code § 221.1(1) (1962) ("A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open...