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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Klein, 372
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Frederick S. Pillsbury,
L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for the
Commonwealth.
Before HENNESSEY, C.J.,
and QUIRICO, BRAUCHER,
WILKINS and ABRAMS, JJ.
HENNESSEY, Chief Justice.
The
defendant, a dentist residing in
We hold
that the judge charged the jury correctly in this case, as judged in light of
principles of law which we in this case adopt governing the right of citizens
to use deadly force in attempting to effect the arrest of felons. Further, we conclude that the jury were
warranted in returning guilty verdicts on the evidence as considered in light
of the judge's instructions to them.
Nevertheless, since we are now expounding these rules of law for the
first time in this Commonwealth, we also hold that the rules should not be
applied retroactively against this defendant.
Consequently, we are ordering that judgments of not guilty be entered as
to both indictments.
We summarize
the evidence most favorable to the Commonwealth, under the established
principle that the jury were entitled to credit and accept this evidence to the
exclusion of evidence favorable to the defendant. See Commonwealth v. Kelley, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
(FNa) 346 N.E.2d 368 (1976). The evidence most favorable to the
Commonwealth came from certain police officers and Napoleon LaDue,
one of the two men who were wounded by the defendant's gunfire.
Napoleon LaDue testified (FN1) that in the early morning hours of
August 1, 1973, he and John Savageau went to Sims
Drug Store on Allen Street in Springfield, Massachusetts, with the intention of
breaking into the store to steal money and cigarettes. They first attempted to smash the wire and
glass window in the door with a tire iron, but were unsuccessful and discarded
the tire iron by the side of the door.
They found a stone and managed to smash the window by propelling the
stone inside.
Both LaDue and Savageau then entered
the store through the broken window. LaDue took some change
[372 Mass. 825] from the cash
register and gathered some cartons of cigarettes. While LaDue was
near the cash register and Savageau by the
cigarettes, LaDue heard shots coming into the store
and ran to the back of the room. After
the shooting ceased, Savageau, followed by LaDue carrying cigarettes, ran to the broken door and
jumped outside. Savageau
was not carrying cigarettes. LaDue was a few seconds behind him. Once Savageau went
through the door LaDue heard more shots. As he emerged from the store DeDue fell, but retrieved the cigarettes and began to
run. While LaDue
was running back along the building toward some railroad tracks he heard a shot
and was struck in the arm causing him to drop the cigarettes. He ran a few more feet and was struck in the
side by another bullet.
LaDue testified that he never crossed Allen Street in front
of the store, that he never threw anything at anyone, and that he never saw who
was shooting. LaDue
caught up to Savageau near the railroad tracks, and Savageau indicated that he too had been shot. Savageau had a
bullet wound in his elbow. LaDue testified that he never heard anysort
of warning or an order to stop before or during the shooting. Finally, LaDue
testified that, although he did not know who was shooting at them, he was
afraid it was the police.
Springfield
police Officer Donald LaDue (FN2) testified that he
and Officer Sakowski responded to a radio dispatch
concerning a break at Sims Drug Store at approximately 1:55 A.M. on August 1,
1973. On the basis of previous experience with
breaks at that particular store, Officers LaDue and Sakowski chose to go along Amity Court while another patrol
car proceeded along Warehouse Street to intercept the thieves on their expected
route of escape, rather than going directly to the store. On their arrival at the drug store the
officers saw that the upper portion of the entrance door was broken and there
was a bullet hole in the lower portion.
They also found cigarettes [372
Mass. 826] strewn about the sidewalk
and street some eight feet away from the store entrance. Both officers observed a tire iron by the
door and a stone inside the door. At
that time the officers were aware that follow policemen had found LaDue and Savageau, both
blooding, in the vicinity of the railroad tracks, and were taking them to a
hospital. Officer Sakowski
saw a pool of blood inside the store.
While the
policemen were making these observations the defendant appeared. After one of the officers mentioned the
bullet hole, the defendant responded that he had seen the two thieves break in
and he had called the police. Because
the police failed to appear, the defendant told the officers that he took his Luger pistol and went into the street where he intercepted
the thieves coming out of the store. He
stated that he stood in the road and told them to stop or he would shoot. The defendant said that one of the thieves
threw cigarettes at him and he fired two shots hitting one of the men, and they
went back into the store. He stated he
turned to go to his house to call the police again, and when he reached the
tree belt in front of his house he heard a noise. The defendant told Officers LaDue and Sakowski that when the
two reappeared he leaned against a tree to steady himself and fired seven more
shots at the two thieves as they were running alongside the building. (FN3) He said that he then returned to his
house and, after emptying his gun, he called the police again. The defendant also told Officer Sakowski that there had been a break at Sims Drug Store two
nights previously when the police failed to catch the thieves, and that he was
sleeping downstairs in his den with his gun nearby.
The
defendant's testimony before the jury differed in important respects from the
police version of his statements immediately after the incident. In summary, he [372 Mass. 827]
testified to firing the shots at the two men as they ran toward him, one
carrying a tire and the other carrying an object which the defendant thought
was a gun. He also testified that he saw
the men break into the store; that his purpose in going out of his house with a
gun was to make a citizen's arrest of the two men; and that before he fired the
shots he shouted at the men to put their hands up and stand where they were,
that they were under arrest.
[1] 1. The
central question in this case is whether the defendant was justified in using
deadly force. We define deadly force as
force intended or likely to cause death or great bodily harm. This tracks with our long‑standing
definition of a 'dangerous weapon,' viz.: an instrument that is likely to
produce death or serious bodily injury.
Commonwealth v. Farrell, 322 Mass. 606, 615, 78 N.E.2d 697 (1948). Clearly the defendant in this case used deadly
force in firing shots from a handgun.
[2] The
defendant's first contention is that his conduct in shooting the two men was
justifiable on the ground of self‑defense, and that on this ground he was
entitled to directed verdicts of not guilty.
The judge properly instructed the jury that, the defendant having
introduced evidence that he acted in self‑defense, the burden of proving
beyond a reasonable doubt that he was not justified in his use of deadly force
to defend himself rested on the Commonwealth.
Commonwealth v. Rodriguez, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, (FNb) 352 N.E.2d 203
(1976). It is clear to us that the judge
correctly ruled that the defendant was not entitled to directed verdicts of not
guilty on the ground of self‑defense.
The jury
were instructed in substance that, in order to create a right to defend oneself
with a dangerous weapon likely to cause serious injury or death, it must appear
that the person using the weapon had a reasonable apprehension of great bodily
harm and a reasonable belief that no other means would suffice to prevent such
harm. See Commonwealth v. Kendrick, 351
Mass. 203, 211, 218 N.E.2d 408 (1966); Commonwealth v. Houston, 332 Mass. 687,
690, 127 N.E.2d 294 (1955). Although
there was some testimony by the defendant from [372 Mass. 828] which
the jury could have concluded that the defendant acted reasonably in an attempt
to prevent great bodily harm to himself, there was also evidence which
warranted the jury in deciding that the defendant did not act in self‑defense
at all. The testimony of Napoleon LaDue tended to negate the claim of self‑defense. Also, the defendant himself stated in
substance to the police on the night of the incident that he shot the two men,
not as they were attacking or threatening him, but as they were escaping from
the scene.
Considering
the jury's privilege to accept or reject evidence selectively, there was ample
basis for them to reject (as they obviously did) the defendant's claim of self‑defense,
either on the basis that the defendant was not under attack at all, or on the
ground that he used excessive force to defend himself in the
circumstances. There was evidence which,
if believed, supported either conclusion.
2. We turn
now to consideration of the defendant's claim that he was justified in using
deadly force to prevent the escape of the two men from his attempt to make a
citizen's arrest.
The
defendant's arguments as to citizen's arrest are three in number. First, he contends that he was entitled on
this ground to directed verdicts of not guilty.
Second, he says that he is entitled at least to a new trial because the
judge's charge to the jury was in error as too restrictive in its definition of
the defendant's rights in the circumstances of this case. The third contention is that the law
applicable to the citizen's right to use deadly force in arresting a felon has
never been expounded in this Commonwealth.
Therefore, the defendant says that, if he acted excessively in light of
the applicable law as decided in this case, that law cannot fairly be applied
retroactively to his detriment.
In a few
instances, this court has considered the broad issue of the use of excessive
force in effecting an arrest.
Commonwealth v. Lussier, 333 Mass. 83, 92‑‑93,
128 N.E.2d 569 (1955); [372 Mass.
829] Commonwealth v. Young, 326
Mass. 597, 96 N.E.2d 133 (1950); Powers v. Sturtevant, 199 Mass. 265, 85 N.E.
84 (1908); Commonwealth v. Cheney, 141 Mass. 102, 6 N.E. 724 (1886);
Commonwealth v. Presby, 14 Gray 65 (1859);
Commonwealth v. Goodwin, 3 Cush. 154 (1849). However, it is true, as the defendant
contends, that we have never clearly set the limits of the arresting citizen's
right to use deadly force.
[3] Thus,
we must consider in this context what rules of law will best serve the public
interest in this Commonwealth. Our
common law has long recognized a private citizen's right to arrest. Commonwealth v. Lussier,
333 Mass. 83, 92, 128 N.E.2d 569 (1955).
Nevertheless, limits must be set, as to the use of deadly force, against
the dangers of uncontrolled vigilantism and anarchistic actions (cf.
Commonwealth v. Mahnke, ‑‑‑
Mass. ‑‑‑, (FNc) 335 N.E.2d 660
(1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48
L.Ed.2d 204 (1976)), and particularly against the danger of death or injury of
innocent persons at the hands of untrained volunteers using firearms. In our view, for example, there would be no
wisdom in approving the unqualified right of a private citizen to use deadly
force to prevent the escape of one who has committed a crime against property
only. (FN4)
[4] Some
jurisdictions have adopted such limiting rules.
See 32 A.L.R.3d 1072‑‑1077, Annot.,
1078‑‑1119 (1970). In
Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d 237
(1968), for example, it was held that the prerequisites to justify the use of
deadly force by a private person in order to effect the arrest or prevent the
escape of a felon are that the person must be in fresh pursuit of the felon and
that he must give notice of his purpose to make the arrest for the felony if
the attendant circumstances are themselves insufficient to warn the felon of
the intention of the pursuing party to arrest him; that such felony must
actually have been committed by the person against whom the force [372 Mass. 830] is used; And the felony must be one which normally causes or
threatens death or great bodily harm.
(FN5)
We have
examined comparable law elsewhere, and we think the relevant provisions of the
Model Penal Code will best serve this Commonwealth. These provisions were adopted after extensive
debate among knowledgeable and distinguished contributors. In the past we have relied on portions of the
code of clarify vague areas of our criminal law. See Alegata v.
Commonwealth, 353 Mass. 287, 304, 231 N.E.2d 201 (1967). Accordingly, we establish as the law of
Massachusetts the rules (in so far as they are material to the instant case
(FN6)) as found in s 3.07 of the Model Penal Code (Proposed Official Draft
1962). They are as follows:
'Section 3.07.
Use of Force in Law Enforcement.
'(1) Use
of Force Justifiable to Effect an Arrest.
Subject to the provisions of this Section and of Section 3.09, the use
of force upon or toward the person of another is justifiable when the actor is
making or assisting in making an arrest and the actor believes that such force
is immediately necessary to effect a lawful arrest.
'(2)
Limitations on the Use of Force.
'(a) The
use of force is not justifiable under this Section unless:
'(i) the actor makes known the purpose of the arrest or
believes that it is otherwise known by or cannot reasonably be made known to
the person to be arrested; and
'(ii) when
the arrest is made under a warrant, the warrant is valid or believed by the
actor to be valid.
'(b) The
use of Deadly force (emphasis supplied) is not justifiable under this Section
unless:
'(1) the
arrest is for a felony; and
[372 Mass. 831] '(ii) the person effecting the arrest is authorized to act as a
peace officer or is assisting a person whom he believes to be authorized to act
as a peace officer; and
'(iii) the
actor believes that the force employed creates no substantial risk of injury to
innocent persons; and
'(iv) the
actor believes that:
'(1) the
crime for which the arrest is made involved conduct including the use or
threatened use of deadly force; or
'(2) there
is a substantial risk that the person to be arrested will cause death or
serious bodily harm if his apprehension is delayed.' (FN7)
[5] We
further hold that, since the right of the defendant to arrest and prevent the
escape of the victims was raised in the evidence, the burden of disproving this
defense beyond a reasonable doubt rested on the Commonwealth. See COMMONWEALTH V. RODRIGUEZ, ‑‑‑
MASS. ‑‑‑ , 352 N.E.2D 203 (1976)(FND).
The
judge's instructions to the jury in this case were, in most important respects,
consistent with the rules of the Model Penal Code quoted above. He charged in substance that deadly force
could not be used to effect the arrest or prevent the escape of one who had
committed a felony concerned with property only.
[6] As
measured by the principles which we have now established and the judge's
charge, it is clear that the Commonwealth met its burden of proving beyond a
reasonable [372 Mass. 832] doubt that the shootings were not
justified. (FN8) There was evidence
which tended to show that, even though the victims had been engaged in a
serious crime, it was a crime concerned with property only and entailed no
threat of death or great bodily harm.
(FN9) Thus, under the rules of law that we have established here, the
guilty verdicts were clearly warranted over the defendant's claim of
justification.
[7] 3.
We now consider the defendant's argument that the state of the law at the time
of the occurrence of this incident in 1973 was such that a reasonable man, with
knowledge of the law, would be led to believe that a private[372 Mass. 833] person would have the
right to use such force as was necessary, including deadly force, to effect the
arrest or prevent the escape of a person who committed a felony in his
presence.
It is true
that sometimes, even in a case of first impression, common law standards of
criminality not previously defined are applied against a defendant. In some cases it can fairly be said that the
defendant knew of the 'possible criminality' of his conduct. Mullaney v. Wilbur,
421 U.S. 684, 690 n. 10, 95 S.Ct. 1881, 44 L.Ed.2d
508 (1975). It is not necessary that
courts, interpreting the common law, be able to point to a decided case exactly
similar as to its facts. Commonwealth v.
Henson, 357 Mass. 686, 690‑‑694, 259 N.E.2d 769 (1970); Bouie v. Columbia, 378 U.S. 347, 356, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); W. Clark & W.
Marshall, Crime s 1.03 at 21 (7th ed. 1976).
In other
cases the circumstances are such that new standards are held in fairness not to
be applied retroactively against a defendant.
See Commonwealth v. Chermansky, 430 Pa. 170,
171, 242 A.2d 237 (1968); cf. Commonwealth v. Orlando, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNe),
359 N.E.2d 310 (1977). In some instances
such retroactive applications have been held to be violative
of the due process clause of the United States Constitution. Marks v. United States, ‑‑‑
U.S. ‑‑‑, 97 S.Ct. 990, 51 L.Ed.2d
260 (1977); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).
We
conclude that, in the circumstances of this case, the standards we have now
established should not be applied retroactively. We reach this conclusion through
considerations of fairness; it cannot fairly be said that the defendant was on
notice of the possible criminality of his conduct. We need not consider whether, additionally, a
retroactive application of the law to the defendant might be violative of his constitutional right to due process of
law.
The
defendant was aware that he had a citizen's right of arrest; the felony was
committed in his presence; (FN10) it could fairly be said that there was
evidence that he gave [372 Mass. 834] notice to the two men that he
intended their arrest and that he was assisting the police (whom the defendant
had called) by attempting to prevent the escape of the men. He met the standards for justification of his
use of the firearm (as we now for the first time establish them) in all
respects except that the felons were not themselves engaged in a crime which
threatened death or great bodily harm.
In these
circumstances the defendant should not be held to have had knowledge of the
'possible criminality' of his conduct (see Mullaney
v. Wilbur, supra), and the law should not be applied retroactively against
him. His judgment was undoubtedly poor;
his conduct could justly be called rash.
Nevertheless his intent was to assist the cause of law enforcement; on
the evidence, no lawless motive or malicious spirit can be attributed to him.
In the
interest of curbing the promiscuous use of firearms, and the unnecessary and
dangerous use of deadly force in the community, we have now set limits
applicable to arrests by private persons.
The defendant can be held to have used excessive force only in light of
the fact that the felons here were not themselves engaged in the use of
threatened use of deadly force in their crimes directed against the drug
store. Public knowledge of this somewhat
subtle requirement of the law, a requirement which we shall apply in the
future, should not be charged against the defendant retroactively.
4. Since
the Commonwealth had the burden of disproving, by proof beyond a reasonable
doubt, the defendant's assertion of justification, and, since we have concluded
that he is not to be charged retroactively with the rules we have established
in this opinion, it follows that in the circumstances of this case, as matter
of law, the Commonwealth has not met its burden. The judgments are reversed and the verdicts
set aside. Judgments of not guilty shall
be entered as to both indictments.
So
ordered.
FNa. Mass.Adv.Sh. (1976) 1023, 1026‑‑1028.
FN1. The second man who was wounded (Savageau) did not testify.
FN2. A coincidence in names with the first
witness.
FN3. From this statement of the defendant,
together with other evidence, the jury were warranted in inferring that the
defendant shot and wounded the two men as they were running away from the scene
and not, as the defendant later testified, running toward him.
FNb. Mass.Adv.Sh. (1976)
1864, 1875‑‑1876.
FNc. Mass.Adv.Sh. (1975)
2897.
FN4. Consider for example, the case of a
person who has stolen a bicycle from a building and is attempting to
escape. The crime is a felony stealing
in a building; G.L. c. 266, s 17); yet the police which
forbids the use of gunfire to prevent the escape is a sound one.
FN5. The Pennsylvania court, at 173‑‑174,
242 A.2d 237 Included, among such felonies, the crimes of treason, murder,
voluntary manslaughter, mayhem, arson, robbery, common law rape, common law
burglary, kidnapping, and assault with intent to murder, rape, or rob.
FN6. In this case we decide the issues only
as they concern a private citizen making an arrest, although s 3.07 of the
Model Penal Code is in most respects applicable to peace officers as most
respects applicable to peace officers as well.
FN7. The American Law Institute's Model Code
of Pre‑Arraignment Procedure (1975) carried forward the determinations of
the Institute in s 3.07 of the Model Penal Code regarding the use of force and
of deadly force in making an arrest. In
summary, s 120.7 of the Model Code of Pre‑Arraignment Procedure provides
that a law enforcement officer authorized to make an arrest may use such force
as is reasonably necessary to effect the arrest, and the officer may use deadly
force only if (a) the arrest is for a felony; (b) the officer reasonably
believes that the force employed creates no substantial risk to innocent
persons; and (c) the crime for reasonably believes that (1) the crime for which
the arrest is made involved conduct including the use or threatened use of
deadly force; or (2) there is a substantial risk that the person to be arrested
will cause death or serious bodily harm if his apprehension is delayed.
FNd. Mass.Adv.Sh. (1976)
1864.
FN8. The issue presented in this case is a
narrow one: whether deadly force can be used to prevent the flight from arrest
of persons who have committed crimes concerned with property only. It is probably useful to stress some of the
issues with which we are not concerned here.
For example,
this is not a case involving physical resistance to arrest. Almost inevitably, principles relating to
self‑defense are involved in such a case.
We have said that the person attempting a valid arrest has the right to
use the force which is reasonably necessary to overcome physical resistance by
the person sought to be arrested. Powers
v. Sturtevant, 199 Mass. 265, 266, 85 N.E. 84 (1908). See Commonwealth v. Young, 326 Mass. 597,
602, 96 N.E.2d 133 (1950) (deadly force).
Cf. Commonwealth v. Martin, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (Mass.Adv.Sh. (1976) 335, 350), 341 N.E.2d 885 (1976);
Commonwealth v. Kendrick, 351 Mass. 203, 210‑‑212, 218 N.E.2d 408
(1966) (manifestly disproportionate force).
Likewise,
we do not face here the issue of the right of the person attempting an arrest
to carry a gun or other dangerous weapon, whatever the nature of the crime
which gave rise to the right of arrest.
The likelihood of a violent confrontation and a consequent necessity for
self‑defense by the person making the arrest are factors to be considered
in such a case.
Finally,
in so far as the defendant's assertion that he was entitled to directed
verdicts of not guilty is concerned, the instant case is not concerned with the
Protection of property. The jury were
warranted in concluding that the wounding of the two men occurred after the
crime involving the drug store. See,
e.g., the provisions in the Model Penal Code concerning the protection of
property, particularly s 3.06(3)(d), and the justification of the use of deadly
force to resist an unlawful attempt to dispossess an owner of his dwelling, or
to prevent an act of arson, burglary, or other act of felonious theft or
property destruction.
FN9.
The felony was that of breaking and entering with intent to commit a felony, or
larceny in a building. There were no
occupants, owner or otherwise, in the building at the time. If the crime had involved a dwelling house
the threat of death or great bodily harm should be presumed, whether or not it
was shown that there were actually occupants in the house at the time of the
crime.
FNe. Mass.Adv.Sh. (1977) 84, 86.
FN10.
We have said that a private person may lawfully arrest one who in fact has
committed a felony. Commonwealth v. Lussier, 333 Mass. 83, 92, 128 N.E.2d 569 (1955).