Opinion
14-P-1570
11-13-2015
COMMONWEALTH v. KAUKAUNA GETHERS.
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
A District Court jury convicted the defendant of vandalizing property. She appeals, contending in a brief filed pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981), that her conviction for vandalizing her holding cell postarrest after being acquitted of the charges that gave rise to the arrest and temporary incarceration constitutes a miscarriage of justice. We affirm.
Background. As relevant to the issue on appeal, the jury could have found the following facts from the evidence introduced by the Commonwealth. Just after midnight on March 25, 2013, the defendant was arrested for disorderly conduct and interfering with a fire fighting force at the site of a raging fire at her apartment building. After her arrest, the defendant was transported to the Lynn police station and placed in a holding cell. The defendant was agitated and upset. She had been drinking prior to the fire, was concerned about her cats' safety as a result of the fire, and was suffering from physical ailments in the holding cell. Shortly after she was placed in her cell, the defendant clogged the cell's toilet using the blanket she had been given by the station's matron, prompting the matron to turn off the water to the cell. A short while later, the defendant vomited and defecated on herself and on the floor. The defendant was then observed smearing feces on the door and walls of the cell with her hands.
The fire ultimately razed the building.
At trial, the defendant was acquitted of disorderly conduct and interfering with a fire fighting force but convicted of vandalism for her postarrest conduct in the holding cell. On appeal, she contends for the first time and without any supporting authority that the jury should have been instructed to acquit her of vandalism if they found her not guilty of the charges that prompted her arrest in the first place. In the same vein, the defendant contends (again for the first time and without any supporting authority) that her acquittal on the charges prompting her arrest means that her arrest was unlawful and so all evidence of events following the arrest should have been suppressed.
Discussion. We agree with the Commonwealth that the defendant's brief does not rise to the level of appellate argument as it is devoid of any authority supporting her claims. See Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996); Commonwealth v. Tracy, 50 Mass. App. Ct. 435, 442 (2000); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Moreover, even if we consider these claims, the defendant's arguments are "without merit." Tracy, supra. We discern no error and no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
1. Instruction for required finding of not guilty. The defendant contends that the jury should have been instructed to find her not guilty of the vandalism charge if she was acquitted of the charges underlying her arrest and incarceration. Such an instruction, however, would be contrary to law. Not only was the judge not required to issue such an instruction sua sponte, but it would have been inappropriate to do so even if the defendant had made her request at the charge conference. Vandalizing a holding cell is a crime regardless of whether the defendant is later acquitted of the charge underlying the arrest that landed the defendant in the cell or, indeed, whether the underlying charge is ultimately dismissed. The defendant's postarrest conduct that resulted in her vandalism charge is wholly separate from the conduct giving rise to the underlying charges for which she was arrested and incarcerated and of which she was ultimately acquitted. See Commonwealth v. Sanchez, 403 Mass. 640, 642-643, 647 (1988) (rejecting contention that acquittal on charge underlying arrest requires finding of not guilty on charge arising from discovery of narcotics in custodial search performed at police headquarters subsequent to arrest). See also Commonwealth v. Mason, 85 Mass. App. Ct. 114, 120-121 (2014).
2. Suppression of postarrest conduct. For similar reasons, the defendant's contention that her postarrest conduct should have been suppressed as "fruit of the poisonous tree" in light of her acquittals on the charges prompting her arrest and incarceration is equally without merit. Not only was the judge under no obligation to suppress this evidence sua sponte, but also the defendant has made no showing that she could have prevailed on a motion to suppress even if she had made one.
First, the defendant has not even argued, let alone shown, that her arrest for disorderly conduct and interfering with a fire fighting force actually was invalid. The fact that the defendant was later acquitted of those charges does not on its own vitiate the propriety of the arrest. See Sanchez, supra at 647 ("The jury's acquittal did not cast doubt on the officers' probable cause to arrest"). See also Commonwealth v. Ceria, 13 Mass. App. Ct. 230, 234 (1982) ("In arguing that probable cause was lacking the defendant overlooks the principle that probable cause to arrest does not require the quantum of proof necessary to convict").
For similar reasons, we need not dwell on the defendant's contention that where her arrest was unlawful her subsequent placement in the holding cell constituted false imprisonment. We further note that we need not even address that contention because it was lodged in a footnote. See Commonwealth v. Lydon, 413 Mass. 309, 317-318 (1992) ("Arguments relegated to a footnote do not rise to the level of appellate argument").
Second, assuming arguendo that the defendant could even make a colorable claim that probable cause for her arrest on charges of disorderly conduct and interfering with a fire fighting force was lacking, "even an unjustified stop or seizure by the police should not shield a defendant from arrest for any subsequent, unrelated offense [s]he may commit. '[E]xtending the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct. This result is too far reaching and too high a price for society to pay in order to deter police misconduct.'" Commonwealth v. Kolodziej, 69 Mass. App. Ct. 199, 203 (2007), quoting from Commonwealth v. Mock, 54 Mass. App. Ct. 276, 284-285 (2002).
Judgment affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 13, 2015.