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PostPosted: Tue Sep 25, 2001 7:50 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
A new case has come down from the Appeals Court of the Commonwealth of Massachusetts, concerning the “Castle law” (you know, A Man’s Home is his Castle-;need to retreat-;plea of self defense), where it was heard on defendant’s appeal from the trial court judge’s failure to instruct the jury on the correct law of self defense and that his counsel made no objection to faulty trial judge instructions, nor did counsel request Castle law instructions.

Those of you have followed this forum are aware that we deal quite a bit in cases defining self defense standards, and of the Shaffer case where a Sharon mother of two was given a life sentence for shooting her ex-husband who had chased her into her basement where he told her he was going to kill her and her children. The Court held at that time that she had an absolute duty to retreat, and because her basement had a door, that the law required her to retreat through it before shooting her assailant. She would still be in jail if Governor King did not pardon her.

Some time after that decision the legislature enacted a revision of this law (Castle Law so called), which mitigated the retreat in a home type environment provided that the response of the defender was “reasonable”. Yes that old reasonable thing that follows one in civil cases and is a must in criminal cases, with emphasis to the right to plead self defense.

This case is important because it does focus on more detail on the Castle law, and the pleading requirements or facts.

So let us look at the decision and see if you can educe any answers to previous questions presented at this and other forums.

The court stated that 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 availability of the Castle law instructions”

“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 qcted in the reasonable belief that the trespasser or intruder was about to inflict great bodily injury or death to him..In such a case, the occupant may use reasonable means to defend himself, and has no duty to retreat from the person unlawfully in his dwelling.”

The trial judge in this case gave the jury forceful instructions that the defendant’s first duty was to retreat if at all feasible, and the defendant was effectively deprived of his defense that the defendant shot the victim in self-defense.

(note: from the above you have a case more specific about the retreat rule in Castle law cases)

The Appeals Court was not persuaded by prosecutor’s argument that even if the defense lawyer faltered, the trial outcome would not be affected , because retreat was never a live issue. That argument misses the key issue on appeal

The court goes on here further to explain its position:

“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 of 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 instruction that the defendant was unconditionally obliged to “use any avenues of escape that were reasonably available before resorting to protect himself”…was palpable error as a result of the failure of performance of defendant’s counsel.

“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 objections, deprived the defendant of his only defense to the murder self defense unencumbered by any duty to retreat…

That is enough in the circumstances here to constitute ineffective assistance of counsel. While the 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 represented in his first appeal by his trial attorney.

“The conviction is vacated and the judgment reversed. The case is remanded to the trial court for further proceedings.”

Commonwealth v. Peloquin, a 7 page decision (Lawyer’s Weekly No. 11-191-01)

Please remember that a self-defense plea with no duty to retreat if confronted with factual conduct which would reasonably place the defender in a position of fear injury or death is only available in cases of the perpertrator being on the premises unlawfully.

Alan K


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