446 Mass. 263 | Mass. | 2006
We transferred this case to this court on our own motion to decide whether the word “dwelling” in the “castle law” statute, G. L. c. 278, § 8A, should be extended to encompass an open porch and outside stairs of a house. In his appeal from his convictions in 2002, of two counts of assault and battery by means of a dangerous weapon, the defendant argues that, in addition to his claim that the trial judge erred in denying his request for a castle law instruction, the judge gave erroneous
1. Facts and procedural background. We present the relevant facts, reserving certain details for our discussion of the issues raised. On the evening of August 5, 2001, brothers Derek Morey and Jeffrey Morey, Jr., went to a party at Melissa and Melanie Sullivan’s house in Westford.
Derek encountered the twenty year old defendant at the party. Both Melanie and Melissa had known the defendant for a number of years, and considered him “a brother.” At the time of this incident, the defendant had been staying with the Sullivans at their house for just under one year. The defendant’s one year old daughter was also there that evening, sleeping at the other end of the house.
About two hours after the Moreys arrived at the party, a fight broke out between Derek and another boy. The fight eventually included Jeffrey and some of the other guests at the party, but not the defendant.
The brothers eventually went to Lowell, where their father (Morey) was staying with friends, and told him what had happened. Morey wanted to talk to Melanie and Melissa’s mother about the underage drinking party and the fight that had taken place. Instead of waiting until later to contact the mother, Morey and the boys drove to the Sullivans’ house in Westford at approximately 1 a.m.
According to Melissa, when Derek saw her, he said, “Tell your brother to come outside.” Melissa told Derek to leave. Melissa then saw Morey get out of the car and yell, “Somebody hit my son and you’re going to pay.” Morey and Derek remained in the driveway. Melissa shut the door, but the defendant grabbed a baseball bat, opened the door, and ran outside. The Sullivan sisters also said that sometime after Derek asked Melissa to have “her brother” come outside, they heard Morey say, “If you don’t come out, I’m coming in.” The sisters, however, had conflicting stories about where the defendant was when Morey said this. Melissa said the defendant was inside the house. Melanie said the defendant was either in the kitchen, halfway out the door, or outside on the porch. On cross-examination, Melissa stated that Morey and Derek “presumed to walk up my stairs,” although she never stated that they actually did walk up the stairs.
During the fight that ensued, both Melissa and Melanie remained inside the house and telephoned the police. Morey raised his arms, and there was conflicting testimony whether he swung at the defendant or was gesturing his surrender. Melissa testified that she thought she saw Morey holding something shiny in his hand, possibly a knife.
Jeffrey, who was still in the car, grabbed a golf club, approached the two men, and hit the defendant with the golf club, leaving an imprint on his back. Morey was eventually able to grab the bat from the defendant and throw it into the woods on
The fight lasted approximately ten minutes. The boys and Morey left the area, and the defendant went back inside the house. Police intercepted the Moreys and confiscated the golf club, and Morey was rushed to Emerson Hospital, where he was treated for the knife wound. He returned a few days later because of a collapsed lung.
Officers who arrived at the house saw the defendant “ranting and raving, yelling about being stabbed and hit with a bat and a golf club, and then . . . [the defendant would say] ‘everything’s fine, you can leave. We’re all set here.’ ” The day after the assault, police located the baseball bat in the woods beside the house and found the knife in the back yard. A few days later, on August 8, 2001, police interviewed the defendant and showed him the bat and knife that had been found. The defendant told police that the bat belonged to him and that he had used it in the assault. In response to seeing the knife, the defendant said, “[T]hat’s my knife. That’s the knife that I used to stab the guy.”
The defendant was charged with three counts of assault and battery by means of a dangerous weapon, two as to Morey (for using the baseball bat and the knife) and one as to Derek (for using the bat). He was acquitted of the charge as to Derek.
2. Discussion, a. Instruction pursuant to G. L. c. 278, § 8A. The defendant contends that the judge erred in denying his request for a castle law instruction pursuant to G. L. c. 278, § 8A.
The defendant argues that the castle law should be expanded to encompass the outside stairs and open porch of the house. We reject these arguments. General Laws c. 278, § 8A, expressly grants a castle law defense to a defendant charged with killing or injuring another person, if that person was in the defendant’s dwelling, and the defendant acted in the reasonable belief that the person was about to inflict great bodily injury or death. See Commonwealth v. Peloquin, 437 Mass. 204, 208-209 n.3 (2002) (holding castle law statute “expressly limited to cases of an occupant’s self-defense against someone ‘unlawfully in [a] dwelling’ ”). Neither party here claims that Morey, or either of the boys, was in the Sullivans’ house.
Even assuming that Morey or one of his sons was on the steps of the porch, as the defendant asserts the evidence shows, the defendant is still not entitled to a castle law instruction. We do not agree with the defendant that the term “dwelling” should extend to the outside stairs of the house. As discussed, the plain language of G. L. c. 278, § 8A, limits the defense to an occupant who injures someone unlawfully in the dwelling. Open areas are not given the same legal exemptions as the residence or dwelling itself. See Commonwealth v. Peloquin, supra; Commonwealth v. Bennett, 41 Mass. App. Ct. 920, 921 (1996).
We also reject the defendant’s arguments that on the facts here the porch functioned as “an extension of the living room” and that, because the porch provided direct access to the house, it was a part of the “dwelling.” We first note that there was no evidence that the Moreys were on the porch. Moreover, it is of
Because we hold that the Moreys were not, at the time of the fight, in the “dwelling” within the meaning of G. L. c. 278, § 8A, it is unnecessary to address the defendant’s arguments concerning his “reasonable belief” that Morey and his sons were about to inflict great bodily injury or death. Moreover, the defendant’s claims that the judge erred (1) by including the duty to retreat element in the instructions on self-defense and defense of another, and (2) in denying his request for an instruction on defense of property have no merit because they hinge on our acceptance of his contention that the definition of “dwelling” in G. L. c. 278, § 8A, includes the outside stairs and open porch, which we reject. There was no error.
b. Defense of another instruction. The defendant argues that the judge’s instructions on defense of another were deficient because they did not mention his defense of his child, naming instead only Melanie and Melissa. The defendant’s argument concerning the inclusion of the child in the jury instruction is without merit. It is within a trial judge’s sound discretion to decide what parts of the evidence may be referenced in a jury instruction. Commonwealth v. Ferguson, 365 Mass. 1, 10-11 (1974).
c. Reasonable doubt instruction. Finally, the defendant contends that the judge’s reasonable doubt instruction, which included almost verbatim the reasonable doubt charge as set forth in Commonwealth v. Webster, 5 Cush. 295, 320 (1850), was erroneous. The defendant argues that the two uses of the “moral certainty” phrase within the traditional Webster charge are not “linked with language that lends content to the phrase,” and thus lessen the Commonwealth’s burden of proof. This argument has no merit.
The judge read the Webster charge almost verbatim. It is well
3. Conclusion. For the reasons stated above, we affirm the defendant’s convictions.
So ordered.
Other friends who were with the brothers are not relevant to our analysis.
In fact, the defendant came out of the house and told everyone fighting outside to leave.
The father first had taken the boys to a hospital so that Jeffrey’s lip might be stitched, but he and the boys left after being told that the wait would be at
There was no other evidence that Morey might have been armed.
General Laws c. 278, § 8A, provides:
“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*267 no duty on said occupant to retreat from such person unlawfully in said dwelling.”
The judge gave instructions favorable to the defendant on self-defense and defense of others, discussed infra.