Commonwealth v. Bent

The defendant also argues for the first time on appeal that the judge erred, when instructing the jury on self-defense, by telling them that they were to consider the opportunity the defendant had to escape from the encounter. That aspect of the charge, the defendant argues, failed to take into account the so-called “castle law,” G. L. c. 278, § 8A, inserted by St. 1981, c. 696. Again, we need not consider a point not raised below. Again, there is no substantial risk of miscarriage of justice for the reason, if no other, that the attack on the victim took place in a room sublet to the young woman with whom the victim was keeping company. That room, which the defendant forcefully invaded (he broke the door down) rather than vice versa, was not the defendant’s “dwelling.”

Stephen Hrones for the defendant. William H. Kettlewell, Assistant District Attorney, for the Commonwealth.

2. Prosecutor’s closing argument. Fairly read, the prosecutor’s comments about the credibility of certain witnesses were proper argument about how the jury ought to assess the testimony of those witnesses, not a statement of the prosecutor’s opinion. Significantly, nothing the prosecutor said provoked any protest from defense counsel at trial. See and compare Commonwealth v. Bourgeois, 391 Mass. 869, 878-879 (1984).

Judgment affirmed.