Com. v. Shaffer

• Decision Date: 19 November 1974
• Parties: COMMONWEALTH v. Roberta E. SHAFFER.
• Court: Appeals Court of Massachusetts

Page 914

318 N.E.2d 914

2 Mass.App.Ct. 658

COMMONWEALTH v. Roberta E. SHAFFER.

Appeals Court of Massachusetts, Norfolk.

Argued Oct. 15, 1974.

Decided Nov. 19, 1974.

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

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

Before HALE, C.J., and ROSE, KEVILLE, GRANT, and ARMSTRONG, JJ.

HALE, Chief Justice.

The defendant, having been indicted for the murder of one John Ferruzzo, was tried and convicted of manslaughter ¹ and was sentenced. From the evidence presented the jury could have found that the defendant, who was separated from her husband and was in the process of being divorced, resided in her own home, a one story ranch house in Sharon, with her two children. The victim whom the defendant had met in 1968, moved into the house in the summer of 1971. The defendant received several severe beatings at the hands of the victim. On one occasion when she asked him to leave the home he threatened to kill both her and the children. She feared for the lives of herself and her children. Despite the beatings and her fears, the defendant loved the victim and planned to marry him. She had persuaded him to seek psychiatric help.

On the morning of December 16, 1971, the defendant dressed her children and sent them to a playroom in the basement to eat breakfast and to watch television. She had her breakfast upstairs with the victim, during which there was an exchange of words which ended when the victim rose and said, 'Never mind. I'll take care of you right now.' The defendant then rose, threw a cup of tea at the victim, and ran downstairs to the playroom. There she heard the victim walk around on the floor above and then heard him open the door at the top of the basement stairs. At that point he told the defendant, '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 discontinued the call upon being told by the victim that he would leave the house if she were to hang up. Shortly thereafter the victim returned to the door at the head of the stairs, whereupon the defendant ran from the playroom to the other side of the basement, took a .22 caliber rifle from its rack on the wall, brought it to the workbench where ammunition for the rifle was kept, and loaded it. As she again started to call the police, the victim started down the stairs. She fired the rifle. The victim fell to the bottom of the stairs, where he died; the bullet had penetrated his heart and aorta.

The defendant's assignments of error raise questions concerning the judge's charge to the jury and his rulings on the admissibility of certain evidence. We affirm.

1. The defendant's initial contention is that the judge in effect instructed the jury that the defendant had a duty to retreat from the basement of her home. ² She submits that the judge should have instructed the jury that the defendant, who had already gone to the basement, had no duty to retreat further. The defendant relies upon what appears to be the majority rule, that one assaulted in one's home 'may stand his ground and resist the attack.' People v. Tomlins, 213 N.Y. 240, 244, 107 N.E. 496, 497 (1914) (Cardozo, J.). ³

It should be noted initially that the judge did not, as the defendant argues, 'in effect' instruct the jury that the defendant had a duty to retreat. Rather, the judge charged that the jury, in determining the reasonableness of the force used by the defendant, should consider evidence of many factors, including 'the availability of maneuver room in or means of escape from the basement area.' Additionally, the judge charged that the jury could give 'consideration' to the fact that the defendant was in her own home 'where she had a right to be.' That instruction clearly left the determination of the reasonableness of retreat under the circumstances as a question of fact for resolution by the jury; it contained no suggestion of a rigid rule which would apply regardless of circumstances. ⁴

The defendant, however, maintains that such a charge was still defective, as it did not give as a positive rule that one is under no duty to retreat if attacked in the home. We find no support for the view that such a statement was required. It has consistently been held 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. DeCaro, 359 Mass. 388, 390, 269 N.E.2d 673, 674 (1971). 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). The question whether the defendant availed himself of all 'proper means' is one of fact for the jury who must make a determination based on all the circumstances. ⁵ 'Ordinarily the question how far a party may properly go in self-defence is a question for the jury . . .', Monize v. Begaso, 190 Mass. 87, 89, 76 N.E. 460, 461 (1906), quoted in Commonwealth v. Houston, 332 Mass. 687, 690, 127 N.E.2d 294 (1955), and in Commonwealth v. Kendrick, 351 Mass. 203, 211, 218 N.E.2d 408 (1966). ⁶ The judge in this case correctly submitted that question to the jury under proper instructions.

2. The defendant also contends that the trial judge erred in his instructions to the jury by not clearly distinguishing an assault from a battery or giving a definition of the words 'overt act.' She argues that the jury was left with the impression that a battery must be committed upon a defendant before the right to self-defense would arise.

However, an examination of the judge's charge reveals that an assault was clearly distinguished from a battery. The judge instructed the jury that 'an assault, which is an attempt to commit a battery, a touching of the defendant's body--and the touching is the battery--any overt act threatening in nature constitutes an assault . . ..' ⁷ This instruction comports with the definition of assault accepted in Commonwealth v. Slaney, 345 Mass. 135, 138, 185 N.E.2d 919, 922 (1962), as 'an attempt (or offer) to do bodily harm to another by force and violence; or simply, an attempt to commit a battery.' Compare the discussion in Commonwealth v. Henson, 357 Mass. 686, 692--693, 259 N.E.2d 769 (1970).

We conclude that nothing stated by the judge in his charge could have left the jury with the impression that a battery must first be committed before the right to self-defense arises.

3. At the request of the defendant, certain records of the Medfield State Hospital were brought into court. Those records concerned the mental condition of the victim, who had been committed to that hospital in 1965 for observation following two attempts to commit suicide. The records also contained an 'after-care note' dated March 22, 1971. The judge examined the records in the presence of counsel, having been informed by the defendant's counsel that he felt the record might confirm what he anticipated his client would testify to concerning her knowledge of the victim's mental condition. The judge refused to allow defendant's counsel to examine the 1965 record but did permit him to examine two other pages of the record containing the 1971 notes. The judge stated that he felt that the 1965 record was 'too remote and not competent here.' He ruled that the records of 1965 and of 1971 were 'not relevant to any issue on the present posture of the case.' He caused the records to be marked for identification and informed defendant's counsel that he could raise the question of their admissibility at a later point in the trial. The defendant subsequently testified in her own defense. At the completion of her testimony on redirect examination her counsel again offered the 1971 portion of the Medfield State Hospital records, and the judge again ruled them inadmissible. The defendant duly excepted to each of those rulings and to the judge's refusal. The defendant argues that because her counsel was not permitted to examine a large portion of the hospital records, he was not in a position to direct the judge's attention to what part, if any, of the records would be admissible either for the purpose of corroborating his client's testimony as to facts contributing to her state of mind (see Commonwealth v. Tircinski, 189 Mass. 257, 258, 75 N.E. 261 (1905); Commonwealth v. Rubin, 318 Mass. 587, 588, 63 N.E.2d 344 (1945)), or for their bearing on whether the victim was the aggressor. See Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354, 355--356 (1960).

We need not consider whether evidence tending to corroborate the existence of a fact which might have given rise to the defendant's state of mind is relevant on the question of such state of mind or whether the Medfield State Hospital records were admissible for the purpose of corroborating the defendant's testimony that the victim was the aggressor. Nothing contained in those records was relevant to either of the purposes advanced by the defendant, and the judge's ruling against their admissibility was correct. See Hughes, Evidence, § 281 (1961), and authorities cited therein. In addition, it should be noted that the records could not possibly have had a bearing on the defendant's state of mind as she was not shown to have been aware of their contents.

4. As a part of their on-scene investigation the police looked into some of the rooms on the main floor of the defendant's house but did not otherwise search the premises. One of the officers, in response to a question put to him over the defendant's objection and subject to her exception, testified that he had observed 'no weapons'...