DocketNumber: No. 10-P-1422
Citation Numbers: 81 Mass. App. Ct. 235
Judges: Mills
Filed Date: 2/3/2012
Status: Precedential
Modified Date: 6/25/2022
A District Court jury convicted the defendant of resisting arrest, G. L. c. 268, § 32B, while acquitting him of three counts of assault and battery on a police officer, G. L. c. 265, § 13D. The defendant argues that the judge erred by not instructing the jury on self-defense, and that this error gave rise to a substantial risk of a miscarriage of justice. We agree and therefore reverse the conviction and remand for a new trial.
She was visibly upset, and she identified herself as the 911 caller. Materazzo heard her answer the door and rejoined Bum-ham at the front door. Mrs. Eberle said that she wanted her husband to leave, although she never accused him of physical violence. At this point, the defendant appeared from a back room and walked toward the front door, yelling at the officers to leave his house. The officers attempted to separate the defendant from his wife to ascertain their stories independently, standard procedure in domestic disturbance investigations. Burnham addressed the defendant, and Materazzo addressed Mrs. Eberle. From this point on, the defense testimony differs materially from the prosecution testimony. We will recite each version of the facts as presented by the evidence.
1. Commonwealth’s evidence. Burnham and Materazzo each described the altercation. LaBonte was outside when the commotion began, and he entered the residence mid-stmggle. Bum-ham approached the defendant while Materazzo approached Mrs. Eberle. They each testified that the defendant resisted Burnham’s advance, the officers put the defendant against the wall, the three went to the ground, and then the officers hand
In Burnham’s version of events, he physically contacted the defendant and tried to push him back into the house. The defendant shrugged him off and then pushed Burnham twice in the chest. Each time the defendant broke contact, Burnham grabbed his arm again. After the second push, Burnham decided to arrest the defendant, and he and Materazzo put the defendant against the wall. The defendant shoved against the wall, causing all three men to fall to the ground. Burnham and Materazzo gained control of the defendant’s hands, which were under his body, while LaBonte reentered the house.
Materazzo described a much more violent event. He saw the defendant shove Burnham before Burnham had touched him and then punch Burnham as he was guiding the defendant down the hall. In response, Burnham and Materazzo placed the defendant against the wall, and the defendant head-butted Materazzo. Materazzo intentionally decided to wrestle the defendant to the ground and yelled to Burnham to take him down. During the struggle, the defendant was trying to hit the officers and push them against the wall. Eventually LaBonte entered, and the three officers were able to subdue the defendant.
LaBonte testified that when he entered, he saw the officers trying to gain control over the defendant. The officers were trying to pull his hands out from under his body, and the defendant was kicking his legs. LaBonte approached, the defendant kicked him, and LaBonte used his baton to gain control of the defendant’s legs. Once under control, the officers escorted the defendant outside.
2. Defendant’s evidence. The defendant testified that Burn-ham shoved him back inside the house, toward the kitchen, for approximately fifteen feet. After six to eight shoves, he finally told the officer to stop and raised his hands to protect his chest. At that point, Burnham said some combination of “that’s it” and “you’re going down,” threw the defendant against the wall, and then threw him to the floor, face down. Materazzo also jumped on the defendant. As the defendant fell, he felt a sharp pain in his elbow, which he described as the worst pain he had ever experienced.
The defendant raised defenses of both accident and self-defense in his testimony. He argued that he had no intention of striking the officers or resisting arrest but was simply flailing in pain due to his dislocated elbow. He also argued that he was justifiably defending himself against the officers’ excessive force. He initially requested instructions on both accident and self-defense, but he did not submit proposed instructions or object when the judge instructed on the accident defense only.
Discussion. 1. Instruction on self-defense. Ordinarily, where a defendant requests a self-defense instruction, and the judge denies that request, he has preserved the error for appellate review. See Commonwealth v. White, 452 Mass. 133, 137-138 (2008). The transcript here shows that while defense counsel orally requested the self-defense instruction, he did not submit proposed instructions to the court or the prosecutor. The judge deferred ruling on the request until all the evidence was presented. When the judge finally read the instructions at the end of the trial, he did not include a self-defense instruction, presumably rejecting the defendant’s request. The defendant did not renew his request or object to the instructions at that time. We have held that under this specific set of circumstances, the defendant
“[A] defendant is entitled to [a self-defense instruction] ‘if any view of the evidence would support a reasonable doubt as to whether[, taking all reasonable inferences in his favor,] the prerequisites of self-defense were present,’ ... to wit: (1) the defendant had ‘a reasonable concern over his personal safety,’ [based upon the officers’ use of unreasonable or excessive force]; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.” Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004) (citations omitted). See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651-654 (2004). “The evidence bearing upon self-defense may be contained in the Commonwealth’s case, the defendant’s case, or the two in combination.” Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 699 (2002), citing Commonwealth v. Rodriguez, 370 Mass. 684, 688 n.5 (1976). “In determining whether sufficient evidence of self-defense exists [to warrant submission to the jury], all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
In this case the defendant was entitled to an instruction as suggested by the court in Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 452 (2005), quoting Graham, supra at 654 n.7.
“The gist of the instruction would provide as follows: If there is evidence of excessive or unnecessary force by police in making an arrest, the Commonwealth must prove beyond a reasonable doubt (1) that the arresting officer did not use excessive or unnecessary force in making the arrest. If the Commonwealth satisfies this burden, then the defendant has no right to engage in self-defense. If the Commonwealth fails to prove that excessive or*240 unnecessary force was not used by police, and there is evidence of self-defense, then the Commonwealth must prove beyond a reasonable doubt (2) that the defendant did not act in self-defense, or (3) that force used by the defendant in self-defense was unreasonable or excessive in the circumstances. See Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966); [Rodriguez, supra at 692 n.10].”
First, the defendant testified that the officers shoved him, threw him against the wall, and threw him to the floor, without any provocation or evidence that he was being violent. See Commonwealth v. Miranda, 77 Mass. App. Ct. 76, 80 (2010) (defendant raised an issue of excessive force where her testimony suggested that the officer threw a third party to the ground and put his knee in her back).
2. Significant risk of a miscarriage of justice. “An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence! ]’ the guilty verdict. In making that determination, we consider [1] the strength of the Commonwealth’s case against the defendant!,] . . . [2] the nature of the error, [3] whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury’s] result might have been otherwise but for the error,’ and [4] whether it can be inferred ‘from the record
First, the strength of the Commonwealth’s case was not overwhelming, as evidenced by the officers’ testimony. Their testimony conflicted as to whether they took the defendant to the ground intentionally or accidentally, and whether the defendant punched at Burnham or merely raised his hands to push him away. This would tend to undercut the officers’ credibility, upon which the Commonwealth’s entire case was based. Cf. Commonwealth v. King, 460 Mass. 80, 88-89 (2011) (concluding that there was no significant risk of miscarriage of justice where, inter alla, the strength of the Commonwealth’s case was based on the significant credibility of the victim, witness, and police sergeant). The officers’ testimony is also sharply distinct from the defendant’s testimony. The defendant’s testimony describes his resistance as occurring only once he fell to the ground, while the officers testified that he resisted throughout the entire encounter.
Considering the second and third factors together, the error was significant and creates a plausible inference that the jury’s result might have been different without the error. Where entitlement to a self-defense instruction is fairly raised from the testimony, as we conclude that it was, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Rodriguez, supra at 688. The absence of the necessary instruction here relieved the Commonwealth of this burden, creating a significant error. See Galvin, supra at 702.
Addressing the fourth factor, we can infer from the record that the failure to object to the instruction was not simply a reasonable tactical decision. As this was a one-day trial, the judge informed the parties that he would begin work on the jury instructions during the lunch recess. Prior to the recess, which occurred during the Commonwealth’s case, the judge asked each side if they would be requesting any specific instructions. The defendant’s lawyer asked for an instruction on self-defense as an issue that developed out of the Commonwealth’s testimony. The judge reserved his decision until the close of testimony, and the defendant’s attorney did not renew his request or object to the instructions, which were given without a self-defense element. Given the fact that the attorney requested the self-defense instruction, the record strongly suggests that his failure to object was not a tactical decision not to pursue a theory of self-defense.
Conclusion. The judgment is reversed, and the jury verdict is set aside. The case is remanded for further proceedings consistent with the opinion of the Appeals Court.
So ordered.
The defendant also argues that the judge erred by not specifically instructing the jury that they could not consider his actions prior to the moment he believed he was under arrest, when determining if the Commonwealth had
We express no judgment on the relative credibility of the defendant’s version of events as compared to the officers’ version. We do note that responses to domestic disturbance calls often present to police an acute set of delicate and high risk issues. The descriptions of the encounter between the defendant and the officers are contradictory among the officers’ testimony, and between the officers’ and defendant’s testimony. With this in mind, we have carefully sifted through the testimony regarding the differing versions of events.
In Miranda, supra, the defendant was charged with assault and battery on a police officer. The defendant asserted justification through defense of another, namely her friend who was subject to the allegedly rough arrest.
The fact that the jury acquitted the defendant on the three charges of assault and battery on a police officer suggests that they found credible some material portion of his testimony.
The defendant submitted an affidavit from his trial attorney, stating that his failure to object to the jury instructions was not a tactical decision. The Com