Commonwealth v. Asher , 471 Mass. 580 ( 2015 )

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SJC-11663
COMMONWEALTH vs. JEFFREY ASHER.
Hampden. February 4, 2015. - June 9, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Assault and Battery by Means of a Dangerous Weapon. Assault and
Battery. Police Officer. Threshold Police Inquiry. Self-
Defense. Evidence, Self-defense. Defense of
Others. Practice, Criminal, Instructions to jury.
Complaint received and sworn to in the Holyoke Division of
the District Court Department on October 14, 2010.
The case was tried before Maureen E. Walsh, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Andrew J. Gambaccini for the defendant.
Elizabeth Dunphy Farris, Assistant District Attorney
(Katherine E. McMahon, Assistant District Attorney, with her)
for the Commonwealth.
BOTSFORD, J. This case concerns the beating of an unarmed
civilian by the defendant Jeffrey Asher, a police officer who
responded to another officer's request for assistance with a
2
traffic stop in Springfield. The defendant was charged with
assault and battery by means of a dangerous weapon in violation
of G. L. c. 265, § 15A (b), and assault and battery in violation
of G. L. c. 265, § 13A (a). At trial, the defendant contended,
and presented evidence seeking to show, that the beating was
justified based on the need for self-defense and defense of
others present. The jury found him guilty of both charges. We
affirm the convictions.
Background. 1. Facts. Based on the evidence presented at
trial, the jury could have found the following. On the evening
of November 27, 2009, Officer Michael Sedergren and Lieutenant
John Bobianski of the Springfield police department were on
patrol in a cruiser when they observed a black Honda Civic
automobile dragging its muffler and causing sparks to fly behind
it. The officers stopped the vehicle, and Bobianski spoke to
the driver, Malika Barnett. While Bobianski was speaking to
Barnett, Sedergren observed Barnett's companion, Melvin Jones,
who was the sole passenger in the vehicle (and the victim in
this case), slide toward the floor in the right front
passenger's seat and stuff something in his waistband.
Concerned that the victim could be hiding a weapon or other
contraband, Sedergren requested assistance over the police radio
from Officer Theodore Truoiolo and the defendant, who were
together on patrol that night in a separate vehicle.
3
Once Truoiolo and the defendant arrived, all four officers
approached the Honda, with two officers on each side of the
vehicle. 1 Truoiolo and Sedergren went to the passenger's side
and asked the victim to step out of the vehicle so that they
could conduct a patfrisk of him. The victim complied. At the
officers' instruction, the victim moved to the rear of the
vehicle and placed his hands on the trunk. Truoiolo then began
patting the victim's outer garments to check for weapons. When
Truoiolo reached the victim's front right pants pocket, Truoiolo
felt a hard object no bigger than his palm. 2 Truoiolo squeezed
the object and yanked the victim toward himself; as he did so,
the victim threw his elbow and forearm into Truoiolo's chest and
tried to run away.
Sedergren caught the victim around the neck about five feet
from the vehicle, but the victim continued to try to run, and
the two men ended up against the side of the hood of the second
police cruiser. Truoiolo then grabbed hold of the victim's
collar and right shoulder, while Sedergren had the victim in a
"choke hold type maneuver" and was on top of the victim's back.
At this point, the victim was bent forward over the hood of the
1
The victim in this case was a black male. All four
officers involved in the incident were white males.
2
On cross-examination, Officer Theodore Truoiolo admitted
that the object in the victim's pants pocket could not have been
a gun, and that Truoiolo never indicated to the other officers
that the victim might be armed.
4
police cruiser, with his head facing the windshield and his legs
spread apart. The defendant, having seen the victim try to run,
went over to the cruiser where the victim was lying spread
eagle. The defendant was unable to see the victim's hands, but
in response to a statement of Sedergren's, the defendant began
to hit the victim repeatedly around his head with a flashlight. 3
Although not all of the blows hit the victim's head, the
defendant swung the flashlight at the victim fourteen or more
times. At least three strikes made contact with the victim's
head and upper body.
The victim continued to move after the first strikes to his
head. The officers were shouting commands such as, "don't move"
and, "give us your hands," but they did not state that the
victim was under arrest. Eventually, Truoiolo cuffed the
victim's right hand but could not reach the victim's left hand
because of where Sedergren was positioned. The defendant,
realizing that many of his blows were hitting the hood of the
cruiser rather than the victim's upper body, moved down and
3
The exact words that Officer Michael Sedergren used were
somewhat in dispute. Sedergren testified that he said, "He's
got my fucking gun, smash him"; the defendant testified that
Sedergren said, "He's got my gun, hit him, hit him." However,
the jury also heard that the defendant's written report of the
incident, filed the day after it occurred, did not quote either
statement, but simply said that Sedergren informed the other
officers that he believed the victim was trying to grab his gun.
In a bystander's video recording of the event, introduced at
trial and discussed infra, the words "smash him in the knees"
are audible, but no reference to a gun can be heard.
5
delivered three hard blows with the flashlight to the victim's
upper leg. Then, in response to another statement from
Sedergren, the defendant hit the victim behind his left knee. 4
Following that blow, the victim fell to the ground with the
officers on top of him. The defendant continued to hit the
victim as he was lying still on the ground, this time around the
victim's upper body and his feet. Eventually, the officers
rolled the victim to the side while he lay on the ground and
finished handcuffing him, and then Truoiolo reached into the
victim's pocket and pulled out the hard object that he had felt
earlier, a small bag that was determined to contain "crack"
cocaine and marijuana. The victim had no weapons on his person,
and no weapons were found in the vehicle.
The victim was taken by ambulance to Baystate Medical
Center. The right side of his face was deformed from swelling
and bruising, and he suffered fractures of his orbital socket
and nose. The victim was also diagnosed with a choroidal
rupture, an eye injury resulting from blunt force trauma to the
head and causing loss of vision in his right eye. At the time
4
Sedergren testified that he called for the defendant to
strike the victim again after Sedergren heard Truoiolo say that
the victim was "going for his waist." However, as previously
noted, Truoiolo knew that the victim did not have a gun in his
waistband, and Truoiolo gave no indication to the other officers
following the patfrisk that the victim might be armed. Truoiolo
admitted on cross-examination that any possible threat of deadly
force against the officers was neutralized by the time that
Truoiolo handcuffed the victim's right hand.
6
of trial, in February, 2012, the victim continued to experience
vision loss.
Two persons in a house across the street from where the
officers stopped the vehicle noticed the incident developing and
recorded much of it on a video camera. The recording, which
includes both audio and video, was admitted as an exhibit at
trial.
2. Procedural history. On October 14, 2010, a complaint
issued from the Holyoke Division of the District Court
Department, charging the defendant with assault and battery by
means of a dangerous weapon and assault and battery. Several
months later, the defendant filed a notice stating that he would
raise as defenses (1) self-defense, (2) defense of another, and
(3) "[d]efense of a law enforcement officer's right to use force
reasonably necessary to effect an arrest, overcome physical
resistance and/or prevent escape." See Mass. R. Crim. P. 14 (b)
(3), as appearing in 442 Mass. 1518 (2004). Thereafter,
approximately three months before trial, the defendant filed an
expert witness report of Dr. Frank Gallo, director of the master
of science in policing program at Western New England
University, that the defendant claimed supported a conclusion
that the defendant's use of force against the victim was
7
reasonable. 5 The Commonwealth responded to the notice of
defenses and to the expert witness report by filing a motion in
limine to exclude any defense based on the reasonable force
necessary to effect an arrest. 6 In response, in two subsequent
pretrial hearings regarding Gallo's proposed testimony, the
defendant's trial counsel stated repeatedly that reasonable
force to effect an arrest was not the legal theory on which the
defendant was relying and on which Gallo's testimony would be
based. Rather, counsel asserted that the defendant's theory of
the case, reflected in Gallo's testimony (see note 5, supra),
5
Dr. Frank Gallo's report is not part of the record on
appeal. However, Gallo testified in a pretrial voir dire
hearing that he had concluded the defendant's use of force was
"objectively reasonable," given that the defendant was presented
with an individual who had resisted a Terry-type stop and then
tried to disarm an officer. See Terry v. Ohio, 392 U.S. 1, 27
(1968).
6
The Commonwealth's argument for the exclusion of this
defense was essentially that the defendant used deadly force
against the victim, and that such force is authorized for the
purpose of effecting an arrest only when the arrest is for a
felony and the crime for which the arrest is made involved
conduct including the use or threatened use of force, or there
is a substantial risk that the person to be arrested will cause
death or serious bodily harm if he or she remains at large. See
Julian v. Randazzo, 380 Mass. 391, 396 & n.1 (1980) (civil suit
against police officers; jury properly charged regarding limits
on officer's use of deadly force in making arrest in accordance
with Model Code of Pre-Arraignment Procedure § 120.7 [1975]);
Commonwealth v. Klein, 372 Mass. 823, 829-830 (1977) (similar
limitations applied in criminal case against civilian who used
deadly force in citizen's arrest; jury properly charged in
accordance with Model Penal Code § 3.07). The Commonwealth
reiterates this argument on appeal. However, because of the
manner in which we resolve this case, we need not address the
claim.
8
was that the defendant used force to effect a Terry-type stop
and a patfrisk of the victim, see Terry v. Ohio, 392 U.S. 1, 27
(1968), and that, ultimately, the force used was reasonably
necessary for self-defense and defense of others, and also based
on a police officer's training to escalate the use of force in
response to a deadly threat, such as a suspect obtaining an
officer's gun. 7 The Commonwealth indicated that if the defendant
was not asserting that he used reasonable force to effect an
arrest, then the Commonwealth's motion in limine to exclude
evidence of this defense was moot. The trial judge does not
appear to have ruled on the motion in limine to exclude, but she
did rule preliminarily that Gallo would be allowed to testify at
trial.
The defendant was tried before a jury in February, 2012.
Despite the trial judge's preliminary ruling concerning Gallo,
the defendant did not call Gallo as a trial witness. At the
7
For example, at the first of the two pretrial hearings, on
November 25, 2011, the defendant's trial counsel stated,
"[Melvin Jones is] not under arrest. This victim is not [under
arrest]. This reasonable force to effect an arrest, that's not
my theory. I don't know where that came from. I apologize for
that. But from the outset this is a threshold inquiry, a pat
down frisk, and force is escalated to the point where it's the
defense argument that deadly force should be used in response to
the testimony, '[h]e's going for my gun.'" At the second
pretrial hearing, on December 6, 2011, trial counsel reiterated
this position and responded affirmatively when the judge asked
for confirmation that in the defense's view, this case had
nothing to do with resisting arrest and was all about "the
alternative theory of self-defense or defense of others."
9
close of the evidence, the defendant submitted a request for
jury instructions that included repeated reference to the
defendant's status as a police officer, to a police officer's
right to use force in making an arrest, and to the fact that a
person who is being arrested by a police officer may not use
force to resist arrest. The defendant also proposed
instructions on self-defense and defense of another that
mirrored in most respects the District Court's model jury
instructions on these defenses, and that included the duty to
exhaust all other options, including retreat, before resorting
to force. See Instruction 9.260 of the Criminal Model Jury
Instructions for Use in the District Court (2009), at 1-5, 17
(Instruction 9.260). In connection with each of the defendant's
proposed instructions, including the instruction on self-
defense, the defendant sought a statement regarding his status
as a police officer.
At the charge conference, the judge indicated initially
that she would instruct the jury on the definition of arrest and
on police privilege in some form, although not using the
defendant's proposed language. The judge later presented both
counsel with a proposed instruction stating that "[b]ecause of
the nature of the job, a police officer is permitted to use
force in carrying out his official duties if such force is
necessary and reasonable," and that a civilian who is arrested
10
by a police officer must submit to the arrest, but a police
officer may not use "excessive or unnecessary force" to make an
arrest. 8 The defendant indicated his satisfaction with this
instruction. The Commonwealth, however, objected to it on the
grounds, among others, that it was essentially an instruction on
resisting arrest, a defense the defendant had earlier eschewed.
After further discussion with counsel, the judge determined that
the planned instruction was confusing and misstated the law, and
that, therefore, the instruction would not be given; the
defendant objected. The judge's instructions to the jury
ultimately included self-defense and defense of another, but did
not reference the defendant's status as a police officer in
connection with those defenses or otherwise.
The jury found the defendant guilty of both charges. The
defendant timely appealed. We transferred the case from the
Appeals Court on our own motion.
Discussion. On appeal, the defendant primarily challenges
the trial judge's decision not to give the jury the instruction
she had proposed on police privilege and resisting arrest, which
had the effect of eliminating entirely from her jury
8
The judge's proposed instruction was a somewhat modified
version of the District Court's model jury instruction on police
privilege and resisting arrest. See Instruction 9.260 of the
Criminal Model Jury Instructions for Use in the District Court
(2009). The full text of the proposed instruction is included
at note 10, infra.
11
instructions any reference to a police officer's ability to use
reasonable force in connection with official duties. This issue
was exacerbated, the defendant argues, by the judge's
instructions on self-defense, which included reference to the
duty to retreat -- a requirement that in the defendant's view is
inappropriate when the person asserting the defense is a police
officer. At trial, the defendant's actual objection to the jury
instructions before and after the jury charge specifically
focused on the judge's decision not to give her proposed
instruction on police privilege and resisting arrest.
Nevertheless, because the defendant's status as a police officer
was clearly a central issue throughout the trial and a focal
point of the defense, 9 on appeal, we treat the defendant's
challenge to the judge's instructions generally as preserved.
We therefore review the judge's instructions for prejudicial
error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). In
doing so, we conclude that the judge's instructions, insofar as
they contained no reference to the defendant's status as a
police officer and included the duty to retreat in the
explanation of self-defense, were flawed. We further conclude,
however, that the errors were not prejudicial when considered in
9
As previously noted, the defendant's proposed jury
instructions included numerous references to the defendant's
status as a police officer. In addition, Sedergren, Truoiolo,
and the defendant each testified regarding his training on the
appropriate use of force in conducting his duties.
12
the context of the evidence in the case and the instructions as
a whole.
We consider first the judge's decision not to give her
proposed police privilege and resisting arrest instruction. 10
This decision was appropriate in the circumstances of this case
for two reasons. The first concerns fairness. By initially
suggesting an intent to pursue the defense of effecting an
arrest and then disavowing it, counsel effectively indicated to
the Commonwealth that it need not present evidence aimed at
10
The judge's proposed instruction stated as follows:
"Because of the nature of the job, a police officer is
permitted to use force in carrying out his official duties
if such force is necessary and reasonable. Members of the
jury in your deliberations you are to determine whether the
Commonwealth has proved beyond a reasonable doubt that the
defendant Jeffrey Asher [is] guilty of the offenses
charged. Melvin Jones is not the defendant in this trial -
- however you did hear testimony in this trial about the
actions of Melvin Jones when confronted by members of the
Springfield Police Department.
"A person who is arrested by someone who he knows is a
police officer is not allowed to resist that arrest with
force, whether the arrest is lawful or not. Even if the
arrest is illegal, the person must resort to the legal
system to restore his liberty.
"However, a police officer may not use excessive or
unnecessary force to make an arrest -- whether the arrest
is legal or illegal -- and the person who is being arrested
may defend himself with as much force as reasonably appears
to be necessary."
13
overcoming this defense. 11 Indeed, the prosecutor argued during
the charge conference that had she anticipated a defense based
on the use of force to effect an arrest and a related jury
instruction, she would have called a potential expert witness to
rebut this theory. 12
Second, and more importantly, the judge was correct in her
eventual conclusion that her proposed instruction would have
confused and potentially misled the jury. The planned
instruction was based on the District Court's model jury
instruction on police privilege and resisting arrest, which
primarily serves to articulate that a civilian who is being
arrested by someone the civilian knows is a police officer must
submit to the arrest and may not use force against the arresting
officer unless the officer uses excessive or unnecessary force
to make the arrest. See Instruction 9.260, at 12-13. 13 This
11
Although defense counsel's express disavowals were made
during pretrial hearings, during the trial itself counsel did
not suggest a change in position until the final charge
conference that took place after the close of the evidence.
12
The defendant's late-breaking about-face also put the
judge in the position of having to determine, after the close of
the evidence, whether an instruction on a theory that the
defendant had previously disclaimed was nevertheless warranted
based on the facts. In these circumstances, the judge's last-
minute change of approach may have been at least in part a
product of the confusion that the defendant generated on this
issue.
13
In addition to the substance of the model instruction,
the cases cited at the end of that instruction suggest that it
14
case, however, presents the opposite scenario: the defendant
was a police officer charged with assault and battery on a
civilian. In addition, to the extent that both the model
instruction and the trial judge's proposed instruction discussed
self-defense, like the model instruction, the proposed
instruction spoke only of a civilian's right to defend himself
or herself against a police officer who uses excessive force,
not the other way around. 14 See note 10, supra. See also
Instruction 9.260. Accordingly, the instruction was structured
so as to focus the jury on evaluating the actions of the
putative arrestee and on whether those actions were reasonable
in light of the police officer's use of force, rather than on
the reasonableness of the police officer's actions. But here,
is designed for use in cases involving charges of resisting
arrest or assault and battery on a police officer or similar
authority figure. See Commonwealth v. Moreira, 388 Mass. 596
(1983) (assault and battery of police officer); Commonwealth v.
Martin, 369 Mass. 640 (1976) (various charges stemming from
assault of correction officer); Commonwealth v. Urkiel, 63 Mass.
App. Ct. 445 (2005) (resisting arrest); Commonwealth v. Graham,
62 Mass. App. Ct. 642 (2004) (resisting arrest and three counts
of assault and battery of police officer); Commonwealth v.
Francis, 24 Mass. App. Ct. 576 (1987) (assault and battery of
correction officer); Commonwealth v. McMurtry, 20 Mass. App.
Ct. 629 (1985) (assault and battery of correction officer).
14
For an example that illustrates a civilian's right to use
self-defense against a police officer in limited circumstances,
see Commonwealth v. Graham, 62 Mass. App. Ct. 642, 649-654
(2004), in which the Appeals Court noted that "where the officer
uses excessive or unnecessary force to subdue the arrestee,
. . . the arrestee may defend himself by employing such force as
reasonably appears to be necessary." Id. at 652, quoting
Moreira, 388 Mass. at 601.
15
where the defendant was a police officer who claimed that his
actions were necessary for self-defense and defense of others
against violence at the hands of the victim, the opposite focus
was the essential one, that is, whether the officer's claims in
response to the victim's alleged use of force and related
conduct were reasonable. Given the context, the proposed
instruction's potential for creating juror misunderstanding was
a real one.
But that is not the end of the matter. Although the judge
did not err in declining to give her proposed instruction, this
case was fundamentally about the reasonableness of a police
officer's use of force against a civilian; therefore, the
judge's instructions should have acknowledged the defendant's
status and explained that, as a police officer, the defendant
would have been justified in using force in connection with his
official duties, including effecting an arrest, as long as such
force was necessary and reasonable. 15 The language that begins
the model instruction on police privilege and resisting arrest
15
Cf. Commonwealth v. Young, 326 Mass. 597, 601-602 (1950)
(police officer convicted of manslaughter of civilian;
reasonableness of officer's acts in attempting to arrest armed
suspect was key question for trier of fact to decide); Powers v.
Sturtevant, 199 Mass. 265, 265-266 (1908) (tort action for
assault by police officer on civilian; judge properly instructed
jury that defendant had right "to arrest the plaintiff and to
use such force as was reasonably necessary to overcome any
resistance which he offered[,] but the defendant had not the
right to use unreasonable or excessive force").
16
is not the only possible approach, but this language does convey
a police officer's right to use reasonable force. See
Instruction 9.260, at 12 ("Because of the nature of the job, a
police officer is permitted to use force in carrying out his
[her] official duties if such force is necessary and
reasonable").
In addition, the defendant raises legitimate concerns with
respect to the judge's instruction on self-defense. In keeping
with the model jury instruction on self-defense, the judge
referenced a defendant's obligation to do "everything reasonable
in the circumstances to avoid physical combat before resorting
to force" including considering "avenues of escape that were
reasonably available." See Instruction 9.260, at 2, 4. We
agree with the defendant that a police officer has an obligation
to protect his fellow officers and the public at large that goes
beyond that of an ordinary citizen, such that retreat or escape
is not a viable option for an on-duty police officer faced with
a potential threat of violence. Cf. Reed v. Hoy, 909 F.2d 324,
331 (9th Cir. 1989), cert. denied, 501 U.S. 1250 (1991),
recognized as overruled on other grounds, Edgerly v. City &
County of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010)
(duty to retreat before resorting to deadly force "may be
inconsistent with police officers' duty to the public to pursue
investigations of criminal activity" and should not apply absent
17
clear authority, which plaintiff had not identified). The
supplemental model instruction on the duty to retreat before
resorting to the use of force in self-defense should not have
been given in this case. Furthermore, while it is appropriate
to require a police officer to do "everything reasonable in the
circumstances to avoid physical combat before resorting to
force" against a civilian, the question must be whether the
defendant as a police officer had reasonable options available
other than to use force -- not whether a similarly situated
civilian would have had other options.
In sum, the judge's instructions to the jury were erroneous
in two respects: (1) they failed to acknowledge, particularly
in connection with the claim of self-defense, that the defendant
was a police officer and that he was entitled to use force in
carrying out his official duties if and to the extent such force
was necessary and reasonable; and (2) the self-defense
instruction included an erroneous statement that the defendant
had a duty to retreat if possible under the circumstances. We
turn, then, to the question whether the errors were prejudicial
to the defendant. "An error is not prejudicial if it 'did not
influence the jury, or had but very slight effect'; however, if
we cannot find 'with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error,'
18
then it is prejudicial." Cruz, 445 Mass. at 591,
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Considering the jury instructions as a whole, as we must,
see Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), S.C., 451
Mass. 1008 (2008), as well as the strength of the Commonwealth's
case, we conclude that the errors were not prejudicial. At
trial, the defendant admitted to hitting the victim repeatedly
with the flashlight, the victim clearly sustained significant
injuries, and the only issue was whether the defendant's acts
were justified. The record as a whole presents extremely strong
evidence that the defendant did not strike the victim in the
manner that he did in self-defense and in defense of his fellow
officers. The video recording of the beating showed three
officers surrounding a single victim, who was bent over the hood
of a car as the defendant struck him repeatedly with a
flashlight. Sedergren, who was on top of the victim's back and
was holding him around the neck, weighed between 250 and 260
pounds at the time of the incident; the victim, by comparison,
weighed about 165 or 170 pounds. None of the officers saw the
victim's hand on Sedergren's gun. Moreover, based on the
officers' positioning around the victim, it was implausible if
not impossible that the victim could have reached the gun,
because it was holstered on the right side of Sedergren's body,
19
where Truoiolo was. 16 As previously noted, the video recording
also belied the defense's theory, because although an officer
can be heard on the recording yelling "smash him in the knees,"
see note 3, supra, there was no audible statement or reference
regarding a gun.
Furthermore, as part of her charge on self-defense and
defense of another, the judge explained that whether a defendant
was justified in using force in his or her own defense or in
defense of others depended upon what a reasonable person would
have done in the circumstances that were presented to the
defendant. See Instruction 9.260, at 1-5, 17. Even in the
absence of a specific instruction on the defendant's status as a
police officer, it was clear to the jury that he was, in fact,
an officer, and that at the time of the incident, he was
involved in a traffic stop as part of his official duties.
Moreover, through Sedergren's and Truoiolo's testimony, the
defendant introduced evidence concerning the "continuum" of
force that police officers are trained to use in responding to
16
Although Truoiolo did not have control of the victim's
hands, he testified that the victim's left hand was on the other
side of Sedergren (meaning Sedergren's left side) and that the
victim's right hand was somewhere in front of the victim. This
positioning was consistent with the fact that the victim was
bent over the hood, with Sedergren over the victim's back on the
left side and Truoiolo to the victim's right. If the victim's
left hand was on Sedergren's left side, and the victim's right
hand was in front of him, the victim could not have reached a
gun that was on the right side of Sedergren's body.
20
an individual who presents varying degrees of threatening
behavior or resistance. We presume that the jury followed the
judge's instruction, and in doing so, we assume that they
evaluated the defendant's claims of self-defense and defense of
others from the perspective of what a reasonable police officer
would have done in the circumstances presented to him or her.
Finally, we conclude with "fair assurance," Cruz, 445 Mass.
at 591, that if the judge had charged the jury that the
defendant was entitled to use such force as was necessary and
reasonable to carry out his official duties, the addition of
this instruction would not have had an effect on the verdicts.
The force that the defendant used here -- repeated blows with a
flashlight to the head and other parts of the body of a victim
who was bent over the hood of an automobile, and later lying on
the ground -- was extreme and went beyond that which was
necessary for the accomplishment of any of the defendant's
responsibilities as a police officer that night. Even if the
defendant believed at one point that the victim was trying to
grab Sedergren's gun, that danger would have completely
dissipated by the time the victim was on the ground; yet even
then, the defendant continued to strike the victim. In these
circumstances, assuming the jury had been instructed properly
about the defendant's police officer status, the jury reasonably
could not have found that the beating was justified.
21
Conclusion. For the reasons that have been discussed, the
jury instructions in this case should have been more narrowly
tailored to reflect the fact that the defendant was a police
officer engaged in his official duties at the time of the
incident. However, given the strength of the evidence against
the defendant and the weakness of his defenses, we conclude that
the errors were not prejudicial and that the defendant is not
entitled to a new trial.
Judgments affirmed.