Opinion
No. 12–P–154.
2013-02-4
COMMONWEALTH v. Keri DORELAS.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the West Roxbury Division of the Boston Municipal Court, the defendant was convicted of assault by means of a dangerous weapon. His principal argument on appeal relates to the fact that, during jury deliberations, the judge acceded to the jury foreperson's request that he be excused from the jury. This occurred after the jury had at least temporarily reached an impasse, with the foreperson apparently the sole “hold out” for acquittal. The foreperson asked to be excused because of conflicts that had developed between him and another juror who apparently favored conviction. The Commonwealth laudably has acknowledged that the juror was dismissed without “good cause” and that reversal is required. See generally Commonwealth v. Connor, 392 Mass. 838, 843–846 (1984); Commonwealth v. Cousin, 449 Mass. 809, 821 (2007), cert. denied, 553 U.S. 1007 (2008); Commonwealth v. Rodriguez, 63 Mass.App.Ct. 660, 673–676 (2005). The defendant also argues that he was entitled to one jury instruction he requested, as well as to one he did not.
The parties' competing arguments about whether these instructions were or were not required are-at least to a great extent-bound up in the specific trial evidence and what reasonable inferences can be drawn therefrom. Given that the trial record developed in any retrial could be materially different, we decline to reach the jury instruction arguments.
The conflict between the defendant and the alleged victim, Victor George, was over a parking space on a public street directly in front of the defendant's Roslindale home. According to the trial evidence, George cleared the space of snow and attempted to reserve the spot for his later personal use by placing a piece of furniture there. After the defendant removed the furniture and parked his own car there, George confronted the defendant at his home. Following an exchange of words, the defendant allegedly attempted to close the door to the house, but George blocked this action with his foot. The defendant proceeded to retrieve a “pellet gun” that resembled a real weapon, which he brandished at George. This action apparently served its intended purpose, as George promptly ran away. Arguing that the trial evidence showed that he took his action while George was accosting him in his home, the defendant unsuccessfully sought a “castle instruction” at trial. See G.L. c. 278, § 8A. The defendant did not request a “defense of property” instruction at trial, but argues on appeal that one should have been given. See Commonwealth v. Haddock, 46 Mass.App.Ct. 246, 248–249 & n. 2 (1999).
Judgment reversed.
Verdict set aside.