Com. v. Shaffer

• Decision Date: 28 April 1975
• Parties: COMMONWEALTH v. Roberta E. SHAFFER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 880

326 N.E.2d 880

367 Mass. 508

COMMONWEALTH v. Roberta E. SHAFFER.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 7, 1975.

Decided April 28, 1975.

Melvin S. Louison, Tauton (Jerry E. Benezra, Boston, and Sheldon J. Cohen, Tauton, with him), for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The defendant, having been indicted for murder, was tried and convicted of manslaughter ¹ and appealed pursuant to G.L. c. 278, §§ 33A--33G. The Appeals Court affirmed the judgment. COMMONWEALTH V. SHAFFER, --- MASS.APP. --- , 318 N.E.2D 914 (1974)^A. We granted the defendant's application for further appellate review and we affirm the judgment of the Superior Court.

From the evidence, the jury could have found the following: The defendant, who was separated from her husband and in the process of being divorced, resided with her two children in a one-story ranch house in Sharon. The victim, to whom the defendant was engaged, had lived in the house since 1971. The defendant had received several severe beatings at the hands of the victim, and on at least one occasion he had threatened to kill her and the children when asked to leave the defendant's home. Although the defendant loved the victim, she feared for herself and the children, and had pursuaded him to seek psychiatric help.

On the morning of the homicide, the defendant was having breakfast with the victim when an argument ensued. At one point, the victim rose, saying, 'Never mind. I'll take care of you right now.' The defendant threw a cup of tea at him and ran downstairs to the basement playroom, where the children were having breakfast and watching television.

Shortly thereafter, the victim opened the door at the top of the basement stairs and said, 'If you don't come up these stairs, I'll come down and kill you and the kids.' She started to telephone the police, but hung up the telephone when the victim said he would leave the house. Instead, he returned to the top of the stairs, at which time the defendant took a .22 caliber rifle from a rack on the wall and loaded it. She again started to telephone the police when the victim started down the stairs. She fired a fatal shot. More than five minutes elapsed from the time the defendant went to the basement until the shooting took place.

1. The defendant's principal argument for reversal is that the judge erred in his instructions to the jury regarding self-defense. She contends that the judge in effect instructed the jury that she had a duty to retreat from her home and that this was error. A review of the charge in its entirety discloses no error.

The defendant asks us in this case to adopt the majority rule that one assaulted in his own home need not retreat before resorting to the use of deadly force. See, e.g., People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914). See also the cases collected in Perkins, Criminal Law, 1005--1012 (2d ed. 1969) and in LaFave and Scott, Criminal Law, § 53, pp. 395--396 (1972). This has never been the law of the Commonwealth, and we see no reason to adopt it now. We prefer instead to follow our long-established rule that the right to use deadly force by way of self-defense is not available to one threatened until he has availed himself of all reasonable and proper means in the circumstance to avoid combat, Commonwealth v. Peterson, 257 Mass. 473, 478, 154 N.E. 260 (1926); Commonwealth v. Trippi, 268 Mass. 227, 232, 167 N.E. 354 (1929); Commonwealth v. Houston, 332 Mass. 687, 690, 127 N.E.2d 294 (1955); Commonwealth v. Hartford, 346 Mass. 482, 490, 194 N.E.2d 401 (1963); Commonwealth v. Kendrick, 351 Mass. 203, 212, 218 N.E.2d 408 (1966); Commonwealth v. Leate, 352 Mass. 452, 457, 225 N.E.2d 921 (1967); Commonwealth v. DeCaro, 359 Mass. 388, 390, 269 N.E.2d 673 (1971), and hold that this rule has equal application to one assaulted in his own home.

This rule does not impose an absolute duty to retreat regardless of considerations of personal safety. The proper application of this doctrine does not require an innocent victim to increase his own peril out of regard for the safety of a murderous assailant, Perkins, op. cit., at 1010, because one need only retreat as far as necessary in the circumstances, until there is 'no probable means of escape.' Commonwealth v. Crowley, 168 Mass. 121, 126, 46 N.E. 415 (1897). Our rule gives due recognition to the value of human life, and requires that all available means for escape be exhausted. 'The right of self-defense arises from necessity, and ends when the necessity ends.' Commonwealth v. Kendrick, supra. See Beale, Retreat from a Murderous Assault, 16 Harv.L.Rev. 567 (1903).

To what extent one who is threatened may go in defending himself and whether he has availed himself of all proper means of escape ordinarily are questions of fact for the jury, to be decided in light of all the existing circumstances. Commonwealth v. Houston, supra. Commonwealth v. Kendrick, 351 Mass. at 211, 218 N.E.2d 408, at 414 (1966). The jury must receive complete instructions from the trial judge, including an explanation of the proper factors to be considered in determining the issue of self-defense. The fact that one is threatened in his own home or in a place where he has exclusive right to be is one of the more important factors in making such determination, but this factor is not without limitations in its application.

We stated in the Kendrick case that, '(i)n passing upon the reasonableness of the force used by the defendant, . . . the jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, ² and the availability of maneuver room in, or means of escape from, the . . . area (in which the confrontation occurs).' 351 Mass. at 212, 218 N.E.2d at 414 (1966) (fn. added). We would add that in determining whether all proper means have been taken to avoid the use of deadly force, the jury should be instructed that the location of the assault is an element of major importance in their consideration. We hold that one assaulted in his own home does not have the unlimited right to react with readly force without any attempt at retreat. However, the importance of the location of the assault and the surrounding circumstance should be stressed to the jury.

In the instant case, the judge charged the jury that, in order for there to have been a proper exercise of self-defense, '(i)t must appear that the defendant endeavored to avoid any further struggle and retreated as far as she could until there was no probable means of escape. In this connection, you may consider that the assault, if you find one took place, by the deceased took place in the home of the defendant where she had a right to be.' This instruction, especially when considered with the charge as a whole, Commonwealth v. Pinnick, 354 Mass. 13, 15, 234 N.E.2d 756 (1968); Commonwealth v. Benders, --- Mass. ---, ---, ^b 282 N.E.2d 405 (1972), made clear that the location of the assault in the defendant's home was a proper factor to be considered. Reading the instructions as a whole, there is no merit to the defendant's argument that, in the circumstances of this case, they were misleading.

The defendant further argues that even if we do not adopt the majority rule, in the circumstances of the present case, the judge should have instructed the jury that the defendant, having already run to the basement, had no duty to retreat further. In doing so, she places much reliance on People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914), and State v. Bonano, 59 N.J. 515, 284 A.2d 345 (1971). However, these cases make clear that even where no retreat is required, there are limitations to the use of deadly force in self-defense.

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