Opinion
No. 14–P–880.
06-10-2016
COMMONWEALTH v. Joseph W. FLEURY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant, Joseph W. Fleury, was convicted of the lesser included offense of assault and battery and resisting arrest. On appeal, the defendant argues that the judge (1) deprived him of an impartial jury by failing to provide defense counsel with additional time to review the juror questionnaires; (2) erred in denying his motion for a required finding of not guilty because the evidence was insufficient to convict him of resisting arrest; and (3) improperly responded to a question posed by the jury. We affirm.
The complaint also charged the defendant with two additional counts of assault and battery. The Commonwealth filed a nolle prosequi on one of the charges. At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty as to a second.
1. Juror empanelment. Prior to empanelment, defense counsel announced that she had “just got[ten] the packet” and was not prepared to proceed with jury selection. The judge responded, “[W]e're going to [e]mpanel the jury. Take your time and look at it.” The judge then stated, “We're not going to spend a long time looking at a packet.” Defense counsel objected on the basis that she did not have “enough time to go over the juror papers.” The judge noted defense counsel's objection and proceeded with jury empanelment.
The jury venire were brought into the court room, sworn, and seated. The venire were then introduced to the parties and the potential witnesses, and they learned the nature of the case. Thereafter, the judge gave some preliminary instructions and posited questions to the entire venire, which resulted in individual sidebar conversations with several potential jurors. Counsel was privy to the packet of juror questionnaires and to the answers to general and specific questioning throughout this process. The defendant had the opportunity to move to strike any jurors for cause and to exercise his peremptory challenges. At the conclusion of this process, defense counsel indicated her satisfaction with the petit jury.
In these circumstances, we see no merit to the defendant's claim. Besides noting the objection to proceeding with juror empanelment, the defendant does not advance any explanation as to why the time afforded to his counsel was insufficient. Defense counsel was able to review the juror questionnaires up until the point she was called upon to move to strike a juror for cause, or to exercise preemptory challenges. Furthermore, there is no indication that the packet or the number of jurors was excessively large or burdensome. Cf. Commonwealth v. Taylor, 469 Mass. 516, 523 (2014) (after prosecutor complied with mandatory discovery, defense counsel requested additional time to review “ ‘voluminous' package,” which he had received that same day). Accordingly, we perceive no error.
Moreover, even if we were to assume, without deciding, that the judge erred in denying defense counsel's request for additional time to review the juror questionnaires, we fail to see the prejudice. See Commonwealth v. Binkiewicz, 342 Mass. 740, 746 (1961) (defendant “assert[ed] no way in which he was prejudiced in fact” by denial of motion for continuance). Counsel explicitly expressed content with the petit jury and “[t]he defendant has not indicated, nor does the record suggest, that any of the jurors selected were not fair and impartial.” Commonwealth v. Reavis, 465 Mass. 875, 890 (2013). Nor has the defendant specified how additional time to review the questionnaires would have led to the discovery of information bearing upon a seated juror's inability to be impartial.
2. Motion for required finding of not guilty. The defendant next contends the evidence was insufficient to convict him of resisting arrest because he surrendered to the police officers at the point when a reasonable person in his position would understand he was under arrest. We disagree.
“[T]he crime [of resisting arrest] is committed, if at all, at the time of the ‘effecting’ of an arrest.” Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting from G.L. c. 268, § 32B. “An arrest occurs when there is (1) ‘an actual or constructive seizure or detention of the person,’ (2) ‘performed with the intent to effect an arrest,’ and (3) is ‘so understood by the person detained.’ “ Commonwealth v. Joyce, 84 Mass.App.Ct. 574, 581 (2013), quoting from Commonwealth v. Grant, 71 Mass.App.Ct. 205, 208 (2008). “The standard for determining whether a defendant understood that he was being arrested is objective—whether a reasonable person in the defendant's circumstances would have so understood.” Ibid.
General Laws c. 268, § 32B, inserted by St.1995, c. 276, states in relevant part: “(a ) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, 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.”
Viewed in the light most favorable to the Commonwealth, the evidence adduced at trial was sufficient to permit the jury to conclude, beyond a reasonable doubt, that a reasonable person in the defendant's position would understand that the police intended to arrest him when he threatened an individual in the presence of a uniformed officer and then, in an attempt to strike that individual, struck the uniformed police officer with a closed fist instead. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) ; Commonwealth v. Soun, 82 Mass.App.Ct. 32, 37 (2012). The defendant “was uncooperative and still attempting to fight” as another officer attempted to bring him to the ground and place him in handcuffs. Once on the ground, the defendant continued to struggle; he refused to comply with at least three to four verbal commands to “stop fighting” and to surrender his hands. It took three uniformed officers to place the defendant in handcuffs. This evidence amply supports the defendant's conviction of resisting arrest. See id. at 36–37.
3. Judge's response to jury question. During deliberations, the jury asked the judge: “Can someone abstain from voting?” The judge replied, “No.” Because defense counsel did not object to the judge's response, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293–294 (2002).
The question posed by the jury was not transcribed. Accordingly, we rely on the parties' agreed statement as to the record. See Mass.R.A.P. 8(d), as amended, 378 Mass. 932 (1979).
The defendant contends the judge's response was inadequate because he should have encouraged the jury to reach unanimity in their verdict. He asserts the error was compounded by the judge's failure to give a supplemental jury instruction pursuant to Commonwealth v. O'Brien, 65 Mass.App.Ct. 291, 296 (2005). We disagree.
“The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly.” Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998), quoting from Commonwealth v. Waite, 422 Mass. 792, 807 n .11 (1996). Here, there was no error. The judge correctly responded that no juror may abstain from voting. Commonwealth v. Hebert, 379 Mass. 752, 754 (1980) (“It is beyond dispute that the jury verdict in a criminal trial in this Commonwealth must be unanimous”). Defense counsel did not request a supplemental instruction. The question posed did not indicate that the jury believed they had reached an impasse. Contrast O'Brien, supra at 294 (jury sent note to judge stating, “We have reached an impasse”). In these circumstances, we conclude the judge did not abuse his discretion in failing sua sponte to give a supplemental jury instruction. There was no error and, therefore, no substantial risk of a miscarriage of justice. See Randolph, supra.
Judgments affirmed.