Opinion
16-P-17
02-10-2017
COMMONWEALTH v. Robert E. ANGELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert E. Angell, appeals from his conviction of assault and battery on a person sixty years of age or older. He claims that the absence of an instruction on the "castle" law, G. L. c. 278, § 8A, created a substantial risk of a miscarriage of justice, and that the evidence was insufficient to sustain the conviction. We affirm.
Necessity of "castle" instruction . The judge gave the model jury instruction on self-defense; defense counsel was content with the charge.
Under G. L. c. 278, § 8A, the lawful occupant of a dwelling is relieved of the duty to retreat before acting in self-defense against an intruder. See Commonwealth v. Peloquin , 437 Mass. 204, 207-208 (2002). In determining whether an instruction on the "castle" law is warranted, the judge must consider the evidence in the light most favorable to the defendant. See Commonwealth v. Peterson , 53 Mass. App. Ct. 388, 389 (2001).
Whether the "castle" law applies in this case turns on whether the victim was unlawfully in the dwelling, that is, whether he was a trespasser. See Peloquin , supra at 208, citing Commonwealth v. Noble , 429 Mass. 44, 49 (1999). A trespasser is a person who "without right enters or remains in or upon the dwelling house ... of another ... after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon." G. L. c. 266, § 120, as amended by St. 1983, c. 678, § 6.
The defendant testified that he had rented a bedroom in his apartment to the victim after the victim responded to an advertisement on the Internet Web site "Craigslist." The defendant gave the victim permission to store his belongings in the sunroom before he moved in. On the morning of the fight, the defendant entered the sunroom to plug in an air conditioning unit. He was "surprised" to find the victim sleeping in the sunroom because he was not "supposed to be ... there." Nonetheless, the defendant testified that the victim "was allowed in" and that he would have permitted the victim to remain, stating: "I'm just plugging it in. You know, I'll leave, you know. I was just going to turn around [and] leave at that point."
The victim testified that he had permission to move in early.
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The victim was not unlawfully in the sunroom. There was no evidence that he entered the apartment without permission or remained there after being told to leave. See Commonwealth v. Richardson , 313 Mass. 632, 637 (1943). He was not "someone who lacks any right at all to be on another's property." Monterosso v. Gaudette , 8 Mass. App. Ct. 93, 99-100 (1979). The defendant was not entitled to a castle instruction, and the judge had no obligation to give one sua sponte. We discern no error, let alone a substantial risk of a miscarriage of justice.
Sufficiency of the evidence . The defendant claims that "[t]he Commonwealth failed to provide sufficient evidence that [the defendant] intentionally touched [the victim] in a way that was likely to cause bodily harm." We disagree. The victim testified that the defendant entered the sunroom in the early morning hours while the victim was sleeping. The defendant attempted to plug in an extension cord and said to the victim, "M- - - - - f- - - - -. This belongs in here.... I'm going to f- - -ing kill you." When the victim "swatted [the defendant's] hand away" from the outlet, the defendant hit the victim. He hit him around the eye, causing the victim to black out for a moment, then jumped on the victim's back and was "on [him] flailing at [him]." There was blood on the victim, on the bed, and on the floor. The defendant caused injury to the victim's eye, lacerations on his back, and "blood lots of places."
On those facts, a rational jury could determine beyond a reasonable doubt that the defendant intentionally touched the victim in a physically harmful manner, see Commonwealth v. Porro , 458 Mass. 526, 529 (2010), and that he was not lawfully acting in self-defense.
Judgment affirmed .