Commonwealth v. Peloquin

• Decision Date: 02 April 2002
• Parties: COMMONWEALTH v. JOHN J. PELOQUIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

437 Mass. 204

770 NE 2d 440

COMMONWEALTH v. JOHN J. PELOQUIN.

Supreme Judicial Court of Massachusetts, Plymouth.

April 2, 2002.

June 21, 2002.

Present (Sitting at Barnstable): MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Deirdre Lee Thurber for the defendant.

GREANEY, J.

In 1988, a jury in the Superior Court convicted the defendant of murder in the second degree (on an indictment charging murder in the first degree). The defendant's conviction was affirmed on direct appeal. Commonwealth v. Peloquin, 30 Mass. App. Ct. 960 (1991). In 1993, the defendant filed a pro se motion for a new trial. Counsel was appointed to represent him. The motion asserted that the defendant's trial counsel had provided him with ineffective representation by failing to request a jury instruction on the so-called "castle" law, G. L. c. 278, § 8A. The defendant also contended that the failure to raise the issue on direct appeal did not constitute a waiver because his trial counsel also served as appellate counsel. A judge in the Superior Court denied the motion without a hearing.¹ The Appeals Court reversed the denial of the motion for a new trial, Commonwealth v. Peloquin, 52 Mass. App. Ct. 480 (2001), concluding that the defendant's trial counsel had been ineffective. We granted the Commonwealth's application for further appellate review and now affirm the order denying the defendant's motion for a new trial.

1. The Commonwealth presented evidence tending to show the following. On the morning of February 20, 1987, two intruders entered the defendant's apartment in Brockton and ordered the defendant and two other men, John Landolfi and Pete Watson, to lie on the floor at gunpoint. One of the intruders grabbed two children² who also were present in the apartment and held one child under each arm. The three men on the floor were told not to move or they would be shot. The intruders robbed the defendant of over $2,000 and a gold chain. After the assailants left, no one telephoned the police to report the robbery. Instead, the defendant enlisted the aid of his younger brother, Craig M. Faria, to seek out the assailants and recover the stolen money.

After drinking together for a short time, the defendant, Faria, and Landolfi drove around Brockton in search of a person whom the defendant believed to have been one of the assailants (Ernie Harris). The defendant and Faria were both armed with handguns. On seeing Harris, the defendant and Faria approached him, but Harris eluded them and fled down the street. Their attempt to recover the stolen money unsuccessful, the defendant, Faria, and Landolfi returned to the defendant's apartment and resumed drinking.

The defendant was angry with Faria and a heated argument developed between the two men. The defendant accused Faria of allowing Harris to escape and told him that "[he] should have shot [Harris]." Faria responded, "You think you're tough [but] without guns you're nothing." The defendant called Faria a "puke" and a "low life." At one point during the afternoon, the defendant took possession of Faria's gun. Several times, the defendant told Faria to leave his apartment.

Just after 5 P.M., Faria offered to go find Harris. He put on his coat and was preparing to leave, but the defendant told him to "forget it." Faria sat back down in a large wicker chair with a "fan back." The defendant sat directly across from him, approximately ten feet away. The defendant began waving his gun around and telling Faria that he should have shot Harris. Faria, who did not have a gun at that point, told the defendant, "Put the gun away or I'll stick it up your ass." Faria also told the defendant that he would "rip his face off." The defendant said to Faria, "I'll shoot you. I'll shoot you. You don't think I'll shoot you?," and that he was "going to do Brockton a favor." The defendant pulled out the larger of the two guns, and, crouching on one knee, he fired two or three times at Faria. The defendant then walked out of the back door of the apartment.

Faria died at a hospital shortly thereafter from two gunshot wounds to the abdomen. The pathologist who performed the autopsy testified that the bullets first grazed Faria's hands, which, the Commonwealth argued, indicated that Faria had held both hands in front of his stomach in a defensive posture at the time that he was shot.

The defendant's evidence portrayed a much different picture of the events. The defendant testified in his own behalf and admitted that he was angry with Faria for failing to recover the money that had been taken from him. On returning to his apartment, the men began drinking heavily and the discussion grew increasingly heated. Reminding Faria, "There's kids in my house" and "[he did not] want no guns around here," the defendant asked Faria for his gun and then placed both his gun and Faria's gun within a hidden space above "an artificial ceiling" in the kitchen. As the afternoon wore on, Faria become offensive and violent toward the defendant. Faria called the defendant a "punk" and threatened to "kick [his] ass." The defendant asked Faria to leave at least ten times.

According to the defendant, at approximately 6 P.M., Faria took both guns out of the ceiling and handed the defendant back his gun. Faria stated, "Come on. I'll go get [Harris] for you now," to which the defendant responded, "No, you already made matters worse than they are." The defendant added, "You're not getting me killed. If you want to go get yourself killed, go, they'd be doing Brockton a favor." At this point, Faria, who was standing by the entrance to the apartment, punched the wooden door frame in anger, saying, "I'll shoot you. I'll shoot you. You don't think I'll fuck[ing] shoot you."

The defendant then backed off to the other side of the room. Faria sat down in the wicker chair. The defendant once again asked Faria to "please leave. You don't even care about the kids or nothing." At this, Faria got very angry and said, "Fuck the kids. They're not your fucking kids anyways." According to the defendant, Faria then "reached down and grabbed the gun out of his waist." Believing that Faria was going to shoot him, the defendant dived out of the chair that he had been sitting in and fired the gun twice at Faria. The defendant testified that the shooting was "just a reaction.... [T]his guy's going to shoot me ... and it was just a reaction."

2. We turn now to the merits of the appeal. General Laws c. 278, § 8A, inserted by St. 1981, c. 696, reads as follows:

"In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling."

At common law, "the right to use deadly force by way of self-defense [was] not available to one threatened until he [had] availed himself of all reasonable and proper means" to avoid combat before resorting to the use of deadly force. Commonwealth v. Shaffer, 367 Mass. 508, 511 (1975) (declining to adopt majority rule that one assaulted in own home need not retreat before resorting to use of deadly force). See Commonwealth v. Reed, 427 Mass. 100, 102 (1998); Commonwealth v. Epsom, 399 Mass. 254, 258 (1987); Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). The enactment of G. L. c. 278, § 8A, modified the common law by justifying the use of deadly force by a person in his own home to respond to an assault threatening death or great bodily harm by someone unlawfully in the home, even though the person had a reasonable means of retreat or escape. See Commonwealth v. Noble, 429 Mass. 44, 49 (1999); Commonwealth v. Cyr, 425 Mass. 89, 98 (1997),S.C., 433 Mass. 617 (2001); Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 64 (1997); Commonwealth v. Gregory, 17 Mass. App. Ct. 651, 652-653 (1984). It is generally for the jury to determine whether the victim in a particular case was, in fact, unlawfully present in a dwelling, and the judge may instruct on the law of trespass to assist the jury in this determination. See Commonwealth v. Noble, supra.

Nothing in G. L. c. 278, § 8A, however, eliminates the duty on the part of the occupant of the dwelling to retreat from a confrontation with a person who is lawfully on the premises. See Commonwealth v. Lapointe, 402 Mass. 321, 329 (1988). The statute is not applicable, therefore, in circumstances where one is threatened or assaulted in one's home by another who is an invited guest, and thus lawfully on the premises, even when that guest launches a life-threatening assault on the defendant. See Commonwealth v. Painten, 429 Mass. 536, 545-546 (1999) (castle law did not apply, even where victim [guest] threatened defendant with knife); Commonwealth v. Lapointe, supra (castle law did not apply where defendant had opened door to permit assailant to enter).

The obvious purpose of the statute is to allow an occupant to defend against unlawful intruders and not to permit the use of deadly force against social guests whenever a verbal altercation threatens to escalate into a physical confrontation.³ On the other hand, the plain language of the statute includes someone who is unlawfully in said dwelling," and it is a familiar principle that a person who enters a dwelling lawfully, but refuses to leave when ordered to do so, becomes a trespasser. See G. L. c. 266, § 120.

The exact boundaries of G. L. c. 278, § 8A, need not be resolved in this case....