Com. v. Klein

• Decision Date: 22 June 1977
• Citation: 363 N.E.2d 1313,372 Mass. 823
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1313

363 N.E.2d 1313

372 Mass. 823

COMMONWEALTH v. Edward KLEIN.

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 4, 1977.

Decided June 22, 1977.

Frederick S. Pillsbury, Springfield, for defendant.

L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant, a dentist residing in Springfield, was found guilty by a jury of charges in two indictments. One indictment charged him with assault and battery by means of a dangerous weapon (a firearm) on Napoleon J. LaDue; the other indictment charged the same offense against John Savageau. G.L. c. 265, § 15A. Both offenses were alleged to have occurred on August 1, 1973. It is undisputed that the defendant shot and wounded the two men after they had in the nighttime broken into a drug store located across the street from the defendant's home. The defendant telephone the police, and after a time went outside his home, armed with a pistol, and the confrontation occurred which gave rise to these indictments.

We hold that the judge charged the jury correctly in this case, as judged in light of principles of law which we in this case adopt governing the right of citizens to use deadly force in attempting to effect the arrest of felons. Further, we conclude that the jury were warranted in returning guilty verdicts on the evidence as considered in light of the judge's instructions to them. Nevertheless, since we are now expounding these rules of law for the first time in this Commonwealth, we also hold that the rules should not be applied retroactively against this defendant. Consequently, we are ordering that judgments of not guilty be entered as to both indictments.

We summarize the evidence most favorable to the Commonwealth, under the established principle that the jury were entitled to credit and accept this evidence to the exclusion of evidence favorable to the defendant. See Commonwealth v. Kelley, --- Mass. ---, --- - ---, ^a 346 N.E.2d 368 (1976). The evidence most favorable to the Commonwealth came from certain police officers and Napoleon LaDue, one of the two men who were wounded by the defendant's gunfire.

Napoleon LaDue testified ¹ that in the early morning hours of August 1, 1973, he and John Savageau went to Sims Drug Store on Allen Street in Springfield, Massachusetts, with the intention of breaking into the store to steal money and cigarettes. They first attempted to smash the wire and glass window in the door with a tire iron, but were unsuccessful and discarded the tire iron by the side of the door. They found a stone and managed to smash the window by propelling the stone inside.

Both LaDue and Savageau then entered the store through the broken window. LaDue took some change from the cash register and gathered some cartons of cigarettes. While LaDue was near the cash register and Savageau by the cigarettes, LaDue heard shots coming into the store and ran to the back of the room. After the shooting ceased, Savageau, followed by LaDue carrying cigarettes, ran to the broken door and jumped outside. Savageau was not carrying cigarettes. LaDue was a few seconds behind him. Once Savageau went through the door LaDue heard more shots. As he emerged from the store DeDue fell, but retrieved the cigarettes and began to run. While LaDue was running back along the building toward some railroad tracks he heard a shot and was struck in the arm causing him to drop the cigarettes. He ran a few more feet and was struck in the side by another bullet.

LaDue testified that he never crossed Allen Street in front of the store, that he never threw anything at anyone, and that he never saw who was shooting. LaDue caught up to Savageau near the railroad tracks, and Savageau indicated that he too had been shot. Savageau had a bullet wound in his elbow. LaDue testified that he never heard anysort of warning or an order to stop before or during the shooting. Finally, LaDue testified that, although he did not know who was shooting at them, he was afraid it was the police.

Springfield police Officer Donald LaDue ² testified that he and Officer Sakowski responded to a radio dispatch concerning a break at Sims Drug Store at approximately 1:55 A.M. on August 1, 1973. On the basis of previous experience with breaks at that particular store, Officers LaDue and Sakowski chose to go along Amity Court while another patrol car proceeded along Warehouse Street to intercept the thieves on their expected route of escape, rather than going directly to the store. On their arrival at the drug store the officers saw that the upper portion of the entrance door was broken and there was a bullet hole in the lower portion. They also found cigarettes strewn about the sidewalk and street some eight feet away from the store entrance. Both officers observed a tire iron by the door and a stone inside the door. At that time the officers were aware that follow policemen had found LaDue and Savageau, both blooding, in the vicinity of the railroad tracks, and were taking them to a hospital. Officer Sakowski saw a pool of blood inside the store.

While the policemen were making these observations the defendant appeared. After one of the officers mentioned the bullet hole, the defendant responded that he had seen the two thieves break in and he had called the police. Because the police failed to appear, the defendant told the officers that he took his Luger pistol and went into the street where he intercepted the thieves coming out of the store. He stated that he stood in the road and told them to stop or he would shoot. The defendant said that one of the thieves threw cigarettes at him and he fired two shots hitting one of the men, and they went back into the store. He stated he turned to go to his house to call the police again, and when he reached the tree belt in front of his house he heard a noise. The defendant told Officers LaDue and Sakowski that when the two reappeared he leaned against a tree to steady himself and fired seven more shots at the two thieves as they were running alongside the building. ³ He said that he then returned to his house and, after emptying his gun, he called the police again. The defendant also told Officer Sakowski that there had been a break at Sims Drug Store two nights previously when the police failed to catch the thieves, and that he was sleeping downstairs in his den with his gun nearby.

The defendant's testimony before the jury differed in important respects from the police version of his statements immediately after the incident. In summary, he testified to firing the shots at the two men as they ran toward him, one carrying a tire and the other carrying an object which the defendant thought was a gun. He also testified that he saw the men break into the store; that his purpose in going out of his house with a gun was to make a citizen's arrest of the two men; and that before he fired the shots he shouted at the men to put their hands up and stand where they were, that they were under arrest.

1. The central question in this case is whether the defendant was justified in using deadly force. We define deadly force as force intended or likely to cause death or great bodily harm. This tracks with our long-standing definition of a 'dangerous weapon,' viz.: an instrument that is likely to produce death or serious bodily injury. Commonwealth v. Farrell, 322 Mass. 606, 615, 78 N.E.2d 697 (1948). Clearly the defendant in this case used deadly force in firing shots from a handgun.

The defendant's first contention is that his conduct in shooting the two men was justifiable on the ground of self-defense, and that on this ground he was entitled to directed verdicts of not guilty. The judge properly instructed the jury that, the defendant having introduced evidence that he acted in self-defense, the burden of proving beyond a reasonable doubt that he was not justified in his use of deadly force to defend himself rested on the Commonwealth. Commonwealth v. Rodriguez, --- Mass. ---, --- - ---, ^b 352 N.E.2d 203 (1976). It is clear to us that the judge correctly ruled that the defendant was not entitled to directed verdicts of not guilty on the ground of self-defense.

The jury were instructed in substance that, in order to create a right to defend oneself with a dangerous weapon likely to cause serious injury or death, it must appear that the person using the weapon had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm. See Commonwealth v. Kendrick, 351 Mass. 203, 211, 218 N.E.2d 408 (1966); Commonwealth v. Houston, 332 Mass. 687, 690, 127 N.E.2d 294 (1955). Although there was some testimony by the defendant from which the jury could have concluded that the defendant acted reasonably in an attempt to prevent great bodily harm to himself, there was also evidence which warranted the jury in deciding that the defendant did not act in self-defense at all. The testimony of Napoleon LaDue tended to negate the claim of self-defense. Also, the defendant himself stated in substance to the police on the night of the incident that he shot the two men, not as they were attacking or threatening him, but as they were escaping from the scene.

Considering the jury's privilege to accept or reject evidence selectively, there was ample basis for them to reject (as they obviously did) the defendant's claim of self-defense, either on the basis that the defendant was not under attack at all, or on the ground that he used excessive force to defend himself in the circumstances. There was evidence which, if believed, supported either conclusion.

2. We turn now to consideration of the defendant's claim that he was justified in using deadly force to prevent the escape of the two men from his attempt to make a citizen's arrest.

The defendant's arguments as to citizen's arrest are...