COMMONWEALTH vs. JOHN PELOQUIN

GILLERMAN, J. The single issue on appeal from the denial of the defendant's motion for a new trial pursuant to Mass. R. Crim. P. 30(a) and (b) is whether the defendant's trial counsel, who was also his counsel on the direct appeal, provided ineffective assistance to the defendant by failing to object to the judge's,

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instructions, and by failing to request a Castle law instruction [Note 1], see G. L. c. 278, 8A [Note 2]. We reverse.

A statement of material facts appears in our decision on the defendant's direct appeal, see Commonwealth v. Peloquin, 30 Mass. App. Ct. 960 , 960-961 (1991). In brief, the defendant shot and killed his half-brother (victim) in the course of an argument between the two men in the defendant's apartment. In the present appeal, we must view the facts presented at trial in the light most favorable to the defendant in deciding whether, as defendant argues, omitted instructions should have been given. See Commonwealth v. Noble, 429 Mass. 44 , 49 (1999). To this end, we have augmented the facts contained in our prior decision with relevant material from the trial record.

The defendant produced evidence of the victim's large size, propensity for violence, his possession of a gun in the defendant's apartment, his previous assault on the defendant, and threats by the victim of imminent serious bodily harm to the defendant during the argument preceding the shooting. A witness at the scene of the shooting heard the victim tell the defendant to put his gun "away or I will stick it up your ass . . . [and that] he was going to rip [the defendant's] head off . . . you're nothing without your guns." According to the testimony, the defendant "kept telling . . . [the victim] to leave [the defendant's apartment], but he stayed . . . He told [the victim] to leave the house . . . several times . . . [but] he wouldn't."

There was also evidence that as the argument with the victim escalated the defendant became frightened. He saw the victim

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pull out a gun and stated that he had thought, "he's going to shoot me." It was at that point that the defendant "dove out of the chair [he] was sitting in and fired the gun twice at [the victim, killing him]."

The evidence of the victim's refusal to leave the defendant's apartment, if credited by the jury, would be sufficient to present the question whether the victim was unlawfully in the defendant's apartment and, if so, to present the issue of the availability of Castle law instructions. Compare Commonwealth v. Burbank, 388 Mass. 789 , 794 (1983) ("[a] criminal defendant is entitled to an instruction on self-defense if the evidence, viewed in the light most favorable to him, is sufficient to raise the issue"). See G.L. c. 266, s. 120 ("[w]hoever . . . remains in . . . the dwelling house . . . after having been forbidden to do so by the person who has lawful control of said premises, shall be punished . . . A person who is found committing such trespass may be arrested ...") (emphasis added). See also Commonwealth v. Noble, 429 Mass. at 49 (the law of trespass is "a guide" to determine whether the victim was unlawfully in a dwelling).

Because there was some record evidence from which the jury could infer that the victim became a trespasser in the defendant's apartment and that the defendant reasonably believed that the victim was about to inflict bodily injury or death upon the defendant, the judge would have been required, upon counsel's request, to instruct the jury that if they made such findings the defendant would be entitled to the benefit of the provisions of the Castle law.

As noted, supra, that statute provides, in substance, that an occupant of a dwelling charged with killing or injuring a person unlawfully in the occupant's dwelling, may defend on the ground that he acted in the reasonable. belief that the trespasser or intruder was about to inflict great bodily injury or death upon him. See supra note 2. In such a case, the occupant may use reasonable means to defend himself, and he has no duty to retreat from the person unlawfully in his dwelling. See Commonwealth v. Noble, 429 Mass. at 49, citing Commonwealth v. Cyr, 425 Mass. 89 , 98 (1997),

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for the proposition that an occupant of a dwelling has "no duty to retreat from trespasser [Note 3]."

Because - the defendant's argument continues - his counsel neither objected to the judge's instructions regarding retreat [Note 4], nor did he request the instructions to which he was entitled under the Castle law, and because the judge gave the jury forceful instructions that the defendant's first duty was to retreat if at all feasible, see supra note 4, the defendant was effectively deprived of his defense that the defendant shot the victim in self-defense. The consequence was, the defendant argues, that defendant's counsel was ineffective at the critical point of the defense, and that his attorney's lapse materially affected the outcome of the trial [Note 5].

We are persuaded that the lapses in the performance of defendant's counsel fell below what is minimally required by art. 12 and that as a result a viable defense was indeed lost. For its part, the Commonwealth argues that even if defense counsel

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faltered, the trial outcome was not affected, because retreat was never a live issue at trial [Note 6]. That argument misses the key issue on appeal [Note 7].

Retreat would become an issue at the trial only if and when the jury failed to find that the defendant was entitled to the protection provided by the Castle law. However, as discussed above, the defendant presented sufficient evidence for the jury to find that he was entitled to Castle law instructions. Consequently, the judge's instructions that the defendant was unconditionally obliged to "use[] any avenues of escape that were reasonably available before resorting to force to protect himself. . . " see note 4, supra, was palpable error as a result of the failure of performance of defendant's counsel. See Commonwealth v. Gregory, 17 Mass. App. Ct. 651 , 652-653 (1984) (judgment reversed where judge's instructions "were substantially in accord with the law prior to the enactment of s. 8A").

In sum, the failure of counsel to request the proper jury instructions from the judge, coupled with the judge's faulty instructions to which defendant's counsel made no objection, deprived the defendant of his only defense to the murder charge: self-defense, unencumbered by any duty to retreat. Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). That is enough in the circumstances here to constitute ineffective assistance of counsel. While this issue could have been raised in the defendant's first appeal - potentially providing a basis for waiver of the claim - the defendant is relieved of any such procedural impediment by virtue of the fact that he was

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represented in his first appeal by his trial attorney. See Commonwealth v. Lanoue, 400 Mass. 1007 , 1008 (1987).

The judgment is reversed and the verdict is set aside. The order denying the defendant's motion for a new trial is reversed, and the case is remanded to the trial court for further proceedings as the Commonwealth may elect to pursue [Note 8].

So ordered.