COMMONWEALTH vs. FREDERICK R. MOREIRA.

The defendant was indicted under G. L. c. 265, Section 15A, for assault and battery by means of a dangerous weapon on a Somerville police officer and, after a jury trial, was convicted on so much of the indictment as charged assault and battery.

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If believed, the evidence presented by the Commonwealth was sufficient to warrant the jury in finding that the police had reason to stop the defendant and his companions and inquire regarding their possession of a handgun on a public street late at night, see Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Anderson, 366 Mass. 394, 397-400 (1974); Commonwealth v. McCauley, 9 Mass. App. Ct. 780, 781-783 (1981); Commonwealth v. Crowley, 13 Mass. App. Ct. 915 (1982), and that the stop would have taken place outside of the defendant's home had the defendant not pushed Officer Munroe through the front door into the hallway, where he assaulted the officer with a wrench. On these findings, the jury could properly have concluded that the officer's entry into the defendant's home was not unlawful because it was involuntary, and was, in fact, caused by the defendant. Had the jury so concluded, it would have been warranted in finding that the defendant was guilty of the crime because he had no right to use force to resist, or aid another in resisting, the police investigation, so long as the officers did not use excessive force. See and compare Miller v. State, 462 P.2d 421, 426-427 (Alaska 1969); State v. Hatton, 116 Ariz. 142, 147-148 (1977); State v. Richardson, 95 Idaho 446, 449-451 (1973), cert. denied, 414 U.S. 1163 (1974); State v. Mulvihill, 57 N.J. 151, 155-158 (1970); Columbus v. Fraley, 41 Ohio St. 2d 173, 178-180, cert. denied, 423 U.S. 872 (1975); Model Penal Code Section 3:04 (2)(a)(i) (1962); Annot., 44 A.L.R.3d 1078 (1972).

The defendant, however, presented evidence from which the jury could have found that he had been with a group of youths at a street corner when his brother observed the police approaching; that he, his brother and a friend wished to avoid contact with the police and immediately drove to the defendant's home a few blocks away; that the defendant had no knowledge that the police wished to speak to him or his companions about their activities; that he was in the kitchen of his home when he observed the cruiser stop outside; that he went to the door where his friend handed him a bottle of vodka; that two officers ran up the steps onto the porch, did not state their purpose, pushed his brother aside, and began to force their way into the home despite the defendant's attempt to shut the door; and that once inside, the officers began punching the defendant, who attempted to defend himself. The defendant denied hitting any officer with a wrench. There was no evidence that a handgun was found inside the defendant's home, in his vehicle, or on the person of the defendant or any of his companions. The defendant's evidence warranted the conclusion that the police had forcibly entered his home without his consent and without probable cause to arrest or search anyone therein, and it entitled the defendant to an instruction which stated that he would have been justified in resisting with reasonable force this unlawful police intrusion into his dwelling. See Commonwealth v. Crotty, 10 Allen 403, 405 (1865), read in light of Payton v. New York, 445 U.S. 573 (1980);

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Commonwealth v. Forde, 367 Mass. 798 (1975); Commonwealth v. Huffman, 385 Mass. 122 (1982). Contrast Commonwealth v. DiSanto, 8 Mass. App. Ct. 694, 699-703 (1979). See also John Bad Elk v. United States, 177 U.S. 529 (1900); Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L. J. 1128 (1969). Although the defendant's requests for instructions on the issue were a bit wide of the mark, they were sufficient in light of the lengthy lobby conference held on this aspect of the case to require the judge to give the substance of an instruction such as that suggested in the second preceding sentence. See and compare Commonwealth v. Corcione, 364 Mass. 611, 618 (1974); Commonwealth v. White, 5 Mass. App. Ct. 483, 487-488 (1977). The instructions actually given (over the defendant's objection) had the effect of usurping the jury's fact-finding function on the issue of the lawfulness of the police conduct and, therefore, served to deprive the defendant of a substantial ground of his justification defense.

The error requires a new trial which, by virtue of the jury's initial verdict, will be limited to the charge of assault and battery. At that trial, the judge should give serious consideration to exercising his discretion in favor of asking the jury venire the first special question requested by the defendant in his motion filed on March 18, 1981. We would expect that the assistant district attorney assigned to retry the case would studiously avoid making any remarks in closing argument similar to the ones which required curative instructions here. (We note that the counsel for the Commonwealth on this appeal is not the assistant district attorney who prosecuted the case below.) We need not discuss the issues raised with respect to the denial of the defendant's posttrial motion under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979). Based on the findings that the jury could have made on the Commonwealth's evidence, as set out above, that motion was properly denied.

Judgment reversed.

Verdict set aside.