Opinion
14-P-1357
12-10-2015
COMMONWEALTH v. TROY ARMSTRONG.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a Boston Municipal Court jury of assault and resisting arrest, arguing that (1) the judge erred in his jury instructions; (2) evidence of the defendant's specific intent to batter was insufficient; (3) an improper closing argument by the prosecutor and the repeated use during trial of the word "resisting" created a substantial risk of a miscarriage of justice; and (4) the defendant received ineffective assistance of counsel. We affirm.
The defendant was acquitted of assault and battery on a police officer. One count of destroying property with a value over $250 was dismissed before trial at the Commonwealth's request.
Background. The Commonwealth's evidence consisted of the testimony of Boston police Officers Joseph Abasciano and Jesse Goff. We summarize their testimony. Around 11:30 A.M. on January 15, 2012, Abasciano, Goff, and Officer James O'Brien responded to a dispatch that "a person of interest" for whom there may be a warrant was at the Ramada Inn located at 800 Morrissey Boulevard in the Dorchester section of Boston. The dispatcher gave the officers the defendant's name, two dates of birth associated with that name, and a room number (183). Using the cruiser's on-board computer, Abasciano confirmed that there was an active warrant for the defendant's arrest. He also retrieved a photograph and information about a car registered in the defendant's name from the Registry of Motor Vehicles.
The officers arrived at the Ramada Inn and identified the defendant's vehicle. Goff and O'Brien went to the front desk and confirmed that a person by the defendant's name was staying in room 183. Dressed in plain clothes with their badges visible, the officers knocked on the door of room 183 and announced themselves as police officers. An adult female answered the door and allowed the officers to enter. The officers saw the defendant sitting at the edge of a bed in the room, wearing only boxer shorts. They again identified themselves; they stated that they had a warrant for the defendant's arrest and that they were going to arrest him; and they asked the defendant several times to get dressed. Instead of getting dressed, the defendant "launched into kind of a lengthy explanation about how his . . . ex-girlfriend or a woman in his life was causing him all kinds of grief and, you know, he hadn't -- You know, whatever the warrant said he hadn't done it and she was just basically trumping up charges, and things like that." The officers spoke with the defendant for three minutes before he became "more combative in his tone." When the defendant refused directives to stand up and get dressed, Goff and Abasciano each took one of the defendant's arms and tried to stand him up. The defendant pulled away, stated that "he doesn't 'give a fuck,' and 'I'm not going to jail,'" broke free from the officers' grip, and "threw a punch . . . directed at Officer Goff." A violent struggle ensued, with the defendant "flailing and swinging" his arms "and pulling violently enough to where he" was making contact with the officers. O'Brien punched the defendant in the back, while Goff applied a mandibular angle. The officers eventually were able to subdue the defendant and to place him in handcuffs.
Abasciano testified that, in layman's terms, a mandibular angle is "a pressure point technique" that the officers are trained to use. It is intended to cause pain and to cause someone to relent.
Discussion. 1. Jury instructions. Although the defendant did not request an instruction on self-defense, or argue at trial that he acted in self-defense, he now claims error in the judge's failure, sua sponte, to instruct the jury on self-defense as a defense to resisting arrest.
A person resists arrest "if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest . . . by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another." G. L. c. 268, § 32B, inserted by St. 1995, c. 276. Because "a person has a right to resist by reasonable force an arrest carried out by police with excessive or unreasonable force," Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 448 (2005), the defendant was entitled to a self-defense instruction "'if any view of the evidence would support a reasonable doubt as to whether . . .' (1) the defendant had 'a reasonable concern over his personal safety'; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances." Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004), quoting from Commonwealth v. Pike, 428 Mass. 393, 395 (1988) and Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995). "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).
The defendant first testified that he looked up from the edge of the bed and saw the officers "walking right up at [him] yelling words at [him]." The officers told the defendant that they were going to arrest him; the defendant "went to stand up and they began to jump [him]"; the defendant "had three guys bow down real low and tackle [him,]" making him fall to the side of the bed; "[r]ather than taking [the defendant's] hands and handcuffing [him], [the officers] decided to tussle with [him]"; and the officers "wrestled [the defendant] on the bed and they pinned [him] down trying to put [his] head down and break [his] neck." The defendant then testified to the opposite: he did not move when asked to get off the bed, and the physical altercation "stopped as soon as [the officers] put their hands on [him]." The defendant stated that he "was not fighting [with the officers] at all," and that he did "[n]ot one little thing" in his defense.
Taking the defendant's testimony as true and resolving all inferences in his favor, Commonwealth v. Pike, 428 Mass. at 395, the defendant knew the officers were there to arrest him, he did not stand up when told to, he was "jumped" by the officers when he did stand up, he was forceably arrested, and he did nothing in his defense. While such testimony may have been sufficient to raise the issue of self-defense, see Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 240 (2012), there was no evidence that the defendant was concerned for his safety. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004) ("Self-defense is reasonably invoked at a criminal trial only if there was a threat of harm to the person protected"). Nor was there evidence "of an attempt to avoid further physical combat or of the defendant's inability to retreat." Commonwealth v. Benoit, 452 Mass. 212, 227 (2008). The officers' act of walking up to the defendant while he sat at the edge of the bed "cannot by itself be construed to have initiated a confrontation or actual combat" such that the defendant would have been entitled to a self-defense instruction, Commonwealth v. Rodriquez, 461 Mass. 100, 110 (2011), and "[t]he lack of reasonable provocation in this context means that police did not act with excessive or unnecessary force." Commonwealth v. Graham, supra at 654. Moreover, both officers testified that the defendant swung his fist at Goff before the physical altercation ensued. See Commonwealth v. Rodriquez, supra ("Self-defense is generally not available to a defendant who provokes or initiates an attack"). In such circumstances, "the judge was not required to give an instruction on self-defense." Commonwealth v. Conley, 34 Mass. App. Ct. 50, 58 (1993). See Commonwealth v. Benoit, supra ("no self-defense instruction was required" absent evidence of an attempt to avoid physical combat or of the defendant's inability to retreat). See also Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (self-defense instruction "need not be given where there was insufficient evidence to support a theory of self-defense"). The defendant knew or should have known that the officers would cease their use of force if he submitted to the arrest because he knew that that was why they were there. See Commonwealth v. Moreira, 388 Mass. 596, 602 (1983) (holding that an arrestee forfeits his defense to a resisting arrest charge where he fails to desist once he "knows or reasonably should know that if he desists from using force in self-defense, the officer will cease using force"). In our view, the defendant would not have been entitled to a self-defense instruction even if he had requested one. In any event, in light of the state of the evidence, the judge's not providing one sua sponte did not cause a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 514 n.3 (2010).
Because the defendant testified that he did not fight the officers, the judge "might well have interfered" with the defendant's right to present his chosen defense if the judge had given a sua sponte instruction on self-defense. Commonwealth v. Norris, 462 Mass. 131, 144 (2012).
2. Remaining claims. The defendant argues that the judge erred in submitting the case to the jury on the "threatened battery" theory of assault, and that the evidence was insufficient to support a conviction under that theory. Because the defendant did not object to the judge's instructions at trial or move for a required finding of not guilty, "[w]e review the claim for a substantial risk of a miscarriage of justice." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 125 n.43 (2010). See Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001). We see none. The defendant testified that he knew the officers were there to arrest him, and the officers testified that, when they attempted to do so, the defendant stated that "he doesn't 'give a fuck,' and 'I'm not going to jail'" before he swung his fist at Goff. Their testimony provided ample evidence both "that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so," and "that the defendant intentionally engaged in menacing conduct that reasonably caused the victim to fear an imminent battery." Commonwealth v. Melton, 436 Mass. 291, 295 & n.4 (2002) (defining the "attempted battery" and "immediately threatened battery" theories of assault). Because the evidence was sufficient to convict the defendant on either theory of assault, the judge did not err in instructing the jury on both theories.
We see no error in the prosecutor's closing argument, much less one "that created a substantial risk of a miscarriage of justice." Commonwealth v. Grandison, supra at 142. "The jury were entitled to observe the demeanor of the defendant during the trial," Commonwealth v. Smith, 387 Mass. 900, 907 (1983), "[t]he credibility of witnesses is obviously a proper subject of comment" in closing argument, Commonwealth v. Murchison, 418 Mass. 58, 60 (1994), and the prosecutor was entitled to argue "fair inferences that might be drawn from the evidence," id. at 59, including that it was reasonable to infer from the defendant's "defensive" demeanor on cross-examination that he was defensive when the officers tried to arrest him.
The defendant did not object at trial to the officers' use of the word "resisting" when describing the defendant's actions, and "we think that the use of the word in the context of this case falls under the umbrella of permissible shorthand expression." Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 470 (2006). The prosecutor did not use the word, contrast ibid.; "[t]he officers described the defendant's behavior in great detail," ibid.; and the judge instructed the jury that they were "the sole and exclusive judges of the facts." There was no error.
Finally, the defendant argues that he was denied effective assistance of counsel. "We have consistently emphasized that 'the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial,' . . . [which] allows for the presentation of evidence, including an 'explanation by trial counsel for his actions.'" Commonwealth v. Williams, 450 Mass. 879, 892 (2008), quoting from Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). The defendant has not moved for a new trial, and "on the record now before us, we discern no 'serious failure[s]' on the part of trial counsel, Commonwealth v. Harbin, 435 Mass. 654, 656 (2002), that, either individually or in combination, were 'likely to have influenced the jury's conclusion,' Commonwealth v. Wright, 411 Mass. 678, 682 (1992)." Williams, supra.
Judgments affirmed.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 10, 2015.