Was it self-defense or firearms offense?
Hanover caterer confronted intruder with gun, and faces charges
The racket came from the dark kitchen area, and it startled David Crest as he slept in the office of his Hanover catering business. He suspected he was being burglarized again, and as he crept toward the noise, he grabbed the Mossberg 500 12-gauge shotgun he had kept by his side.
"Freeze," he screamed. Crest believed he had finally caught the culprit who had taken thousands of dollars in meats, alcohol, and equipment from the shop. But when he flicked on the lights, still aiming his shotgun, and saw the intruder, he felt betrayed like never before: It was, he said, his head chef.
"How many times have you broken in here before?" Crest demanded.
The man ran out the door, and Crest fired several warning shots. He was determined, he said, to protect his property.
But police say he went too far by trying to take the law into his own hands.
Now there are two defendants. Crest, 39, of Marshfield will be arraigned next week before the same court that arraigned John F. O'Connor, 43, the man accused of stealing from him. Crest is charged with assault with a deadly weapon and discharging a firearm within 500 feet of a dwelling.
Crest has become something of a poster child for the right to defend one's property, even if it means using a gun. On a local website, his defenders rail against those who call him a vigilante.
"The prosecutors will have to make a decision . . . as to which action or which conduct they view to be more serious," said David Frank, legal analyst and writer for Massachusetts Lawyers Weekly.
"It could be they decide to prosecute both."
Bridget Norton Middleton, a spokeswoman for the Plymouth County district attorney's office, would not comment on the case.
April 21 marked the second consecutive night that Crest had stayed in his business office, the first night keeping his vigil until 3 a.m. He had figured one of his employees was involved in the heists - although he never suspected O'Connor - and told his crew he was going on vacation. If the thief was going to strike, it would be then, he figured.
Much was at stake for Family Crest Catering, the business Crest and his wife had built over 17 years. Some $3,000 worth of equipment and goods had disappeared from his Hanover shop since October. (A later audit would show that another $4,000 had been embezzled, his lawyer said.)
Crest had reported the first two thefts, but two more followed. That's when he decided to stand watch overnight.
Crest was awakened just before 11 p.m., he said, when he heard the freezer door open and shut, then heard a commotion in the equipment room. He discovered O'Connor in the shop, he said, and told him to get on his knees. Words were exchanged and O'Connor reached for the door, according to Crest's account in court documents.
It was then that Crest fired - twice, toward the ground, he said - as O'Connor ran outside and toward his car. Crest said he then fired two more shots, aiming for O'Connor's tires.
Crest called police, and officers soon stopped O'Connor's car and arrested him.
When investigators arrived at Crest's business, they took notice of the broken locks on the doors in the kitchen, and the mess in the equipment area. Then they noted the shell casings, and took the gun in as evidence. Crest acknowledged the shooting from the start. When he initially called the police, he told the dispatcher that he had an unloaded shotgun with him, according to court records.
On the scene, Crest told investigators that he had an active firearms license. But, to his surprise, police told him they would seek a criminal complaint against him. A Hingham District Court magistrate clerk agreed to bring charges two days later.
O'Connor, meanwhile, was charged with breaking and entering and larceny, and was sent to the county jail in lieu of $2,500 cash bail.
Police Chief Paul Hayes said police had no choice but to seek a criminal complaint against Crest. He fired in a neighborhood, toward a man who was unarmed, uncertain of whether there were bystanders who could be hurt, the chief said.
"We're not sympathetic to O'Connor] but it's poor judgment on Mr. Crest's behalf," Hayes said. "He didn't know who was coming in, when someone was coming in. What if the guy was shot and killed?"
The chief acknowledged that no one was arrested after Crest reported two thefts last fall. But, he said, "We never advised the owner to sit there with a shotgun. Instead of calling 911, he took it into his own hands."
That's not how Crest's defenders see it.
Michael Bergeron, a lawyer for Crest, said his client not only had a right to defend his property, but the right to protect himself. Crest did not know whether the thief was armed, perhaps had a gun in his car, or whether an accomplice was lurking outside, he said.
Crest's employees found an unfamiliar knife the next day on the floor of the kitchen, Bergeron said, wondering aloud whether O'Connor had carried it inside with him.
"These are business owners and there's only so many times you can get ripped off before you can protect your property, and yourself," Bergeron said. "I think he did use reasonable force in trying to stop his car, to take his property back under the law."
O'Connor's lawyer, Marguerite Brackley of Rockland, did not return telephone calls for comment.
How Crest pleads next week will largely determine what happens to O'Connor. Crest, facing the possibility of conviction, and even jail time, may invoke his Fifth Amendment rights against self-incrimination, said his lawyer. Without Crest's testimony, there is no case against O'Connor.
"That really puts him in a bind in the prosecution against Mr. O'Connor, who is really the villain in all this," Bergeron said.
Crest could have a difficult case, said Frank, the Lawyers Weekly analyst.
In precedent-setting cases, police have defended a person's right to protect his property. But the fact that the culprit fled, and that Crest still fired shots - even if only in warning - could hurt him in court, Frank said.
"The law doesn't allow you to play the role of police officer," Frank said, "just because you're frustrated with the way the investigation is going."
Milton J. Valencia can be reached at valencia@globe.com. 