Commonwealth v. Gomes

¶1(concurring). I agree that the convictions should *345be affirmed. I also agree with the majority’s reasoning in the cases involving Gomes, Taylor, and Aguinaldo Fernandes. In the case involving Amaldo Fernandes (Amaldo), however, I do not believe that affirmance of the conviction requires the discussion set forth in part 5 of the majority’s opinion, nor do I believe that affirmance requires us to reach out for the majority’s broad and sweeping declaration, ante at 333, that “an individual may not forcibly resist even an unlawful entry into his residence by one who he knows or has good reason to believe is a police officer engaged in the performance of his duties.”

¶2As the majority observes, Arnaldo argues here that he received ineffective assistance of counsel because his attorney failed to request an instruction to the effect that “an official’s attempt to enter a home illegally entitles the defendant to use reasonable force to resist the entry.” He argues that

“[t]he jury should have been so [instructed] in order to properly assess whether the officers used excessive force in attempting to arrest [Amaldo], his brother, and their guests, and in determining whether [Amaldo’s] attempt to close the door, per the officers’ testimony, constituted an assault and battery.”

¶3Neither rationale, however, entitled Amaldo to the instruction he claims his attorney failed to seek. Insofar as forceful resistance of an arrest is concerned, Commonwealth v. Moreira, 388 Mass. 596 (1983), squarely held that individuals are not entitled to use force to resist even an unlawful arrest. Insofar as the door closing was concerned, Amaldo was convicted of assaulting two officers, Coyne and Tse, only one of whom, Coyne, was at the door when Amaldo was attempting to close it. Arnaldo also had been charged with assault and battery by means of a dangerous weapon, i.e., the door, on Coyne. At the close of the Commonwealth’s evidence, however, the judge entered a required finding of not guilty in Amaldo’s favor on the dangerous weapon charge because there had been no evidence that Arnaldo “struck” Coyne with the door. Accordingly, Amaldo did not need the jury’s assessment of whether the force he applied *346to the door amounted to an assault and battery; the judge already had ruled that it did not.1

¶4Beyond that, it is virtually inconceivable that failure to give the requested instruction, under whatever rationale, materially affected the outcome of Amaldo’s trial. The absence of a material impact, without more, means that Amaldo cannot prevail on his claim of ineffective assistance, for we have said many times that

“[t]o prevail on a claim of ineffective assistance of counsel, a defendant must establish (1) that his representative’s performance reflected ‘serious incompetency, inefficiency, or inattention . . . falling measurably below that which might be expected from an ordinary, fallible lawyer,’ Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974); and (2) that these shortcomings deprived him of ‘an otherwise available, substantial ground of defence’ or otherwise materially affected the outcome of his trial. Id. at 96. See Commonwealth v. Fanelli, 412 Mass. 497, 503 (1992).”

¶5Commonwealth v. Scullin, 44 Mass. App. Ct. 9, 11 (1997).

¶6Only two percipient witnesses, Officer Coyne and Amaldo, testified about the events at the door. If the jury believed Arnaldo, then no assault and battery of any kind occurred.2 If Coyne were believed, whatever force Amaldo applied to the door was dwarfed by the shove, punches, and kicks Amaldo administered as Officer Tse headed for the front of the house to *347check on Amaldo’s identity.3 Even if reasonable force may be applied to resist a police officer’s illegal intrusion, no reasonable person who accepted Coyne’s view of events could conclude that Amaldo’s application of force was reasonable. Consequently, under either view of the evidence, failure to request a reasonable force instruction played no material role in the trial’s outcome.

¶7That being the case, I see no reason to use this case as a vehicle for announcing a broad new rule that one’s fellow citizens assembled and sworn as jurors have no right — under any circumstances — to assess the reasonableness of a forceful but nonassaultive effort to prevent an unbidden policeman’s lawless nighttime entry into a dwelling.4 Such a role would strip the jury of any role in deciding whether it was reasonable under any circumstances, for example, to keep the door locked in the face of a policeman’s order to unlock it, to lean against a closed door to prevent its forceful opening, to close the door against an *348official’s outstretched hand, or to stand passively in a doorway to block an illegal entry.

¶8Sanctity of the home is, as the majority recognizes, ante at 341, a core principle in our constitutional order. See Miller v. United States, 357 U.S. 301, 307 (1958); United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972); Commonwealth v. Panetti, 406 Mass. 230, 234 n.5 (1989); Commonwealth v. Marquez, 434 Mass. 370, 374-375 (2001). That principle produced the rule that the official who enters a dwelling with neither warrant nor justification for warrantless entry is a trespasser, see Commonwealth v. Wright, 158 Mass. 149, 159 (1893),5 against whom reasonable, nondeadly force may be used for the purpose of ejectment. See Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248-249 (1999). No doubt the realities of modem urban life require some rein on that rule, although the rule’s longstanding existence, see Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 710 (1974), and differences between the potential for violence inherent in dwelling invasions and the potential for violence attending arrests that the Supreme Judicial Court discussed in Commonwealth v. Moreira, 388 Mass. at 600, leave me in some doubt about this court’s power to apply that rein.

¶9Power conceded, though, the real question is not whether the rule should be restrained but to what degree and under what circumstances. The answer clearly implicates important aspects of the relationship between citizen and State. Providing such answers only when a case clearly requires them is the essence of judicial restraint. See Lockhart v. Attorney Gen., 390 Mass. *349780, 784 (1984); McMaster, petitioner, 12 Mass. App. Ct. 972, 973 (1981). See generally, e.g., Commonwealth v. Bartlett, 374 Mass. 744, 749 (1978); Ruggieri v. Somerville, 10 Mass. App. Ct. 43, 44 (1980). Cf. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 114-115 (1962). I would apply that restraint here, decide the case on narrower grounds that are entirely adequate for its disposition, and save consideration of the broader principle the majority has embraced for the case in which the broader principle, as it now exists or as it is reformulated, must necessarily determine the outcome.