Com. v. Moreira

• Citation: 436 N.E.2d 423,14 Mass.App.Ct. 909
• Parties: COMMONWEALTH v. Frederick R. MOREIRA.
• Decision Date: 11 June 1982
• Court: Appeals Court of Massachusetts

Page 423

436 N.E.2d 423

14 Mass.App.Ct. 909

COMMONWEALTH v. Frederick R. MOREIRA.

Appeals Court of Massachusetts, Middlesex.

Argued March 9, 1982.

Decided June 11, 1982.

Judith M. Freedman, Boston, for defendant.

Robert L. Rossi, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, GREANEY and SMITH, JJ.

RESCRIPT.

The defendant was indicted under G.L. c. 265, § 15A, for assault and battery by means of a dangerous weapon on a Somerville police officer and, after a jury trial, was convicted on so much of the indictment as charged assault and battery.

If believed, the evidence presented by the Commonwealth was sufficient to warrant the jury in finding that the police had reason to stop the defendant and his companions and inquire regarding their possession of a handgun on a public street late at night, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Anderson, 366 Mass. 394, 397-400, 318 N.E.2d 834 (1974); Commonwealth v. McCauley, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 904, 905-907, 419 N.E.2d 1072 (1981); Commonwealth v. Crowley, 13 Mass.App. 915, 430 N.E.2d 450 (1982), and that the stop would have taken place outside of the defendant's home had the defendant not pushed Officer Munroe through the front door into the hallway, where he assaulted the officer with a wrench. On these findings, the jury could properly have concluded that the officer's entry into the defendant's home was not unlawful because it was involuntary, and was, in fact, caused by the defendant. Had the jury so concluded, it would have been warranted in finding that the defendant was guilty of the crime because he had no right to use force to resist, or aid another in resisting, the police investigation, so long as the officers did not use excessive force. See and compare Miller v. State, 462 P.2d 421, 426-427 (Alaska 1969); State v. Hatton, 116 Ariz. 142, 147-148, 568 P.2d 1040 (1977); State v. Richardson, 95 Idaho 446, 449-451, 511 P.2d 263 (1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 928, 39 L.Ed.2d 117 (1974); State v. Mulvihill, 57 N.J. 151, 155-158, 270 A.2d 277 (1970); Columbus v. Fraley, 41 Ohio St.2d 173, 178-180, 324 N.E.2d 735, cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975); Model Penal Code § 3:04(2)(a)(i) (1962); Annot., 44 A.L.R.3d 1078 (1972).

The defendant, however, presented evidence from which the jury could have found that he had been with a group of youths at a street corner when his brother observed the police approaching; that he, his brother and a friend wished to avoid contact with the police and immediately drove to the defendant's home a few blocks away; that the defendant had no knowledge that the police wished to speak to him or his companions about their activities; that he was in the kitchen of his home when he observed the cruiser stop outside; that he went to the door where his friend handed him a bottle of vodka; that two officers ran up the steps onto the porch, did not state their purpose, pushed his brother aside, and began to force their way into the home despite the defendant's attempt to shut the door; and that once inside, the officers began punching the defendant, who attempted to defend himself. The defendant denied hitting any officer with a wrench. There was no evidence that a handgun was found inside the defendant's home, in his vehicle, or on the person of the defendant or any of his companions. The defendant's evidence warranted the conclusion that the police had forcibly entered his home without his consent and without probable cause to arrest or search anyone therein, and it entitled the defendant to an instruction which stated that he would have been justified in resisting with reasonable force this unlawful police intrusion into his dwelling. See Commonwealth v. Crotty, 10 Allen 403, 405 (1865), read in light of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975); Commonwealth v. Huffman, 385 Mass. 122, 430 N.E.2d 1190 (1982). Contrast Commonwealth v. DiSanto, 8 Mass.App. 694, 699-703, 397 N.E.2d 672 (1979). See also John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900); Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (196...