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,
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 children
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,
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
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. . . . [Tjhis 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,
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,
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.
The exact boundaries of G. L. c. 278, § 8A, need not be resolved in this case. The contested issue at trial was whether the Commonwealth had proved, beyond a reasonable doubt, that the defendant did not act in self-defense when he used deadly force in shooting Faria. The defendant correctly points out, that, in explaining the law of self-defense to the jury, the judge instructed in the usual manner in language that failed to express the no retreat concept embodied in G. L. c. 278, § 8A. It is possible that a castle law instruction, had one been requested by the defendant’s trial counsel, should have been given to the jury, along with instructions regarding the manner for determining whether a person is “unlawfully in [the] dwelling.” The dis-positive question on appeal, however, is whether, on this record, it can be said that the defendant’s trial counsel was constitutionally ineffective for failing to request a castle law instruction. We examine the question under our traditional two-prong test stated in Commonwealth v. Saferian,
The defendant has failed to meet his burden on both parts of the test. The trial presented the jury with a stark contrast between the Commonwealth’s and the defendant’s accounts of the confrontation. In the cool calculation of wishful thinking, the defendant attempts to fasten labels of incompetence and strategic failure on his trial counsel that simply do not fairly apply. See Commonwealth v. Johnson,
While not strictly necessary to our decision, we think it worth noting that, on the instructions given by the judge, the defendant suffered no disadvantage. The judge instructed the jury that “the defendant must have done everything that was reasonable in the circumstances to avoid physical combat before resorting to force,” and that the defendant was permitted to use physical force “only if he could not get out of the situation in some other way that was available and reasonable at the time.” The judge notably also told the jury:
“Where the [incident] took place may be particularly important. In some situations a person might have a clear field and be able to escape by walking away or otherwise getting to safety or by summoning help if that could be done in time or by holding the attacker at bay if the means were available or by some other method. In other cases such escape routes may not be available. The issue is whether the defendant’s use of force reasonably seemed to be the only way to protect himself in the circumstances. In*212 considering this you are permitted to take into account that a person who is attacked may have to decide what to do quickly and under emotional strain.”
These instructions, taken as a whole, explained that a defendant need not retreat unless he can do so in safety, and need not do so when he would increase the danger to his own life. Viewing the evidence in the light most favorable to the defendant, and accepting the defendant’s testimony as true, there was virtually no likelihood that a reasonable juror would have thought that the defendant, sitting a mere ten feet away when Faria drew his gun, had any opportunity to retreat. As the judge clearly instructed, the duty to retreat does not impose the duty to put oneself in danger. See Commonwealth v. Pike,
3. The order denying the defendant’s motion for a new trial is affirmed.
So ordered.
Notes
The trial judge had retired.
The children were the daughters of the defendant’s girl friend.
The no retreat, or castle law, doctrine as applied in other jurisdictions may have broader implications. As stated in one treatise, “[a] defendant need not retreat if he is attacked in his ‘castle’ (dwelling house), even if he can do so with reasonable safety. This is true even if the attacker is the defendant’s spouse or guest or person with whom he shares the living quarters, as distinguished from a mere intruder.” 2 C. Torcia, Wharton’s Criminal Law
We have recognized that this standard for testing the ineffectiveness of counsel is not significantly different from our standard of a substantial risk of a miscarriage of justice. See Commonwealth v. Peters,
We keep in mind that an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.
The defendant’s affidavit stated the following:
“17. At some point around 5:45 p.m., [the victim] again threatened to rip my face off. [The victim] then started to rise from his chair in my direction. While he was starting to stand up, I saw his hand reaching for the gun that he had tucked into the waist of his pants.
“18.1 jumped from the chair that I was sitting in and landed on my knees. While I was diving for the floor, I also pulled my gun out. When I saw that [the victim]’s hand was on his gun, and that he was pulling it out of his belt, I fired two shots at him.”
The defendant’s trial counsel may have reasoned that a castle law instruction would have focused the jury’s attention on the defendant’s behavior, including the evidence that the defendant was the original aggressor in the verbal altercation that led to Faria’s death, and the defendant’s own testimony that he told Faria not to leave the apartment. In view of the unlikelihood of a jury’s finding that Faria, the defendant’s brother and a frequent guest in his home, was unlawfully present in the apartment, it is entirely possible that the failure of the defendant’s trial counsel to request a castle law instruction was a tactical decision to avoid the jury’s finding deliberate premeditation, which would have convicted the defendant of murder in the first degree.
The defendant may have benefited by the judge’s failure to instruct the jury clearly that one who is culpable in bringing on the attack that necessitated his use of lethal force is not authorized to kill in self-defense at all. The Commonwealth portrayed the defendant as the initial aggressor in this quickly escalating situation.