Opinion
20-P-1022
11-04-2021
COMMONWEALTH v. Michael MCHUGH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Michael McHugh, was convicted of assault and battery, see G. L. c. 265, § 13A (a ) ; filing a false report by a public employee, see G. L. c. 268, § 6A ; and misleading a police officer, see G. L. c. 268, § 13B (1) (c ) (iii). , On appeal the defendant contends that the trial judge erred in denying his motion for a required finding of not guilty as to all three convictions. We affirm.
The defendant was indicted under the version of G. L. c. 268, § 13B, in effect before its amendment in 2018. See St. 2018, c. 69, § 155.
The defendant was acquitted of assault and battery by means of a dangerous weapon (shod foot), G. L. c. 265, § 15A (b ).
Discussion. In reviewing the sufficiency of the evidence, "we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). See Commonwealth v. Garvey, 99 Mass. App. Ct. 139, 145 (2021).
Viewed in the light most favorable to the Commonwealth, the evidence may be summarized as follows. The defendant, a police officer, was tried with his neighbor, Jason LaBelle, the son-in-law of Michael Cebula. At the time of the incident, Cebula's relationship with his wife, children, and grandchildren had deteriorated because of his substance use; he had not seen them in many months. His daughter, LaBelle's wife, had stopped speaking to him, and he had not been allowed in LaBelle's home since the previous Christmas.
Cebula spent the afternoon of July 4, 2016, drinking at a local bar. Around 9 P.M. Cebula drove to the street where his daughter and LaBelle lived, hoping to see his family outside. He saw there was no one there and left. Cebula then went to the Big Y to buy cigarettes, a visit which was captured on videotape. He returned to LaBelle's street to see if any of his family was outside. Seeing no one, he turned into a driveway to turn around to leave. He paused to light a cigarette but he "was pulled out of [his] truck and then pushed against the side of it, with [his] arm behind [his] back." The defendant held Cebula's arm behind his back. When Cebula said he was in pain, the defendant pushed the arm higher and said, "How does that feel?" The defendant then put his knee in Cebula's back and took him to the ground. Cebula realized that "it was [the defendant] doing this to [him] ... when [he] hit the ground"; the defendant's police badge was "right in [Cebula's] face." While the defendant held him down, Cebula was kicked in his right side by someone wearing work boots, which he thought belonged to LaBelle. LaBelle walked around to Cebula's side, squatted down, looked at him, and said, "If I ever see you down here again, I will kill you."
The defendant, who was off duty, called the police station during the incident. He may be overheard on the audiotape of the 911 call saying, "You're lucky my wife's still in the house or you'd be way worse off." The police arrived after Cebula had been restrained. Cebula was placed under arrest for operating under the influence of alcohol. Booking photos showed bruises and abrasions on both sides of his face and on his body. Cebula complained of back pain, rib pain, and difficulty breathing during booking, and was transported to the hospital. A "CAT-scan" revealed seven fractured ribs on the right side of Cebula's chest and a fractured vertebra. Cebula was hospitalized for seven days.
The defendant's version of events, as stated in the police report he filed on July 6, 2016, was that LaBelle contacted him on the night of the incident around 9:24 P.M. after seeing Cebula's truck on the street. LaBelle had called the Pittsfield police earlier in the evening, but they did not come. LaBelle went to the defendant's home and after about twenty minutes they saw Cebula's truck again in the neighborhood. The defendant and LaBelle drove around trying to find Cebula. When they failed to locate him, the defendant accompanied LaBelle to LaBelle's house to check on his family.
At trial the jury also heard LaBelle's 911 call. He told the officer that he was sure Cebula was driving drunk and additionally that he was afraid for his safety and that of his family. The officer told LaBelle to call again if he saw Cebula come back.
LaBelle, accompanied by his eighteen month old daughter, then drove the defendant back to his house. On the way, they saw Cebula's truck turn into a driveway. The defendant ran up to the truck, identified himself as a police officer, and instructed Cebula to show his hands. According to the defendant's police report, Cebula did not comply and bent over and reached toward the passenger side twice; the defendant knew that Cebula owned guns and feared Cebula was reaching for one. The defendant instructed Cebula to get out of the truck, but Cebula then grabbed and hung on to the steering wheel. The defendant was "forced to physically remove him from the vehicle" and kneed him "two or three times." The defendant then "stabilized" Cebula, "face down, on the ground." He instructed LaBelle to stay at the other end of the driveway while he searched the vehicle and called the police station.
LaBelle, who was tried as a codefendant, denied kicking Cebula when the defendant was present. Later, after Cebula was hospitalized, LaBelle told the police department's internal affairs investigators that he had an altercation with Cebula earlier in the evening at approximately 9 P.M. LaBelle claimed that Cebula came at him, and that he threw Cebula to the ground. He told the officers that Cebula's face hit the ground in the fall, and that he (LaBelle) kneed Cebula in the right side, and put his left knee in Cebula's back. The video footage of Cebula in the Big Y taken later that evening but before the encounter with the defendant showed Cebula in jeans and a clean white T-shirt with no apparent bruises or abrasions on his face, walking and talking with ease and without impairment.
LaBelle was also acquitted of assault and battery by means of a dangerous weapon, and assault and battery, but was convicted of filing a false police report, misleading a judge, and misleading a clerk.
1. Assault and battery. "An intentional assault and battery is ‘the intentional and unjustified use of force upon the person of another, however slight.’ " Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931). "[A]s 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." Commonwealth v. Asher, 471 Mass. 580, 588 (2015). The defendant contends that the force he used when he arrested Cebula was necessary and reasonable under the totality of the circumstances, and that no rational jury could find otherwise.
"The question whether an officer's use of force is reasonable or necessary is one to be decided by the fact finder considering all of the surrounding circumstances." Garvey, 99 Mass. App. Ct. at 146, citing Commonwealth v. Moreira, 388 Mass. 596, 602 (1983). The defendant submits that his version of events should be credited because Cebula was intoxicated and had perjured himself in a prior trial. Settled law, however, commits assessment of witness credibility to the trier of fact, in this case the jury. See Commonwealth v. Spinucci, 472 Mass. 872, 878 (2015). In essence, the defendant's argument constitutes a request to view the evidence in the light most favorable to him, not the Commonwealth.
Cebula lied about his level of intoxication at his trial for operating under the influence and was not candid with investigators about his alcohol consumption at the outset of the police investigation in this case. He testified without immunity in this case.
Viewing the evidence in the light most favorable to the Commonwealth, the jury could permissibly find that the defendant struck Cebula and forcibly dragged him out of the truck, pushed him to the ground with force, put a knee in his back, and leaned his full weight on Cebula's back and rib area. The jury were also permitted to find, given the nature and extent of his injuries, that Cebula was badly injured either during that process or thereafter. With respect to questions of credibility, "[j]urors ... are free to believe or disbelieve the testimony of each witness in whole or in part." Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009). See Commonwealth v. Quinones, 78 Mass. App. Ct. 215, 220 n.2 (2010). The evidence was sufficient for the jury to conclude that Cebula suffered serious injury inconsistent with the use of reasonable force, that the defendant used unreasonable or unnecessary force against Cebula either as a principal or as part of a joint venture with LaBelle, and that the defendant and LaBelle concocted a false narrative to cover up what happened. See Garvey, 99 Mass. App. Ct. at 146. See, e.g., Commonwealth v. Adams, 416 Mass. 558, 565 (1993).
The Commonwealth's theory was that the defendant dragged Cebula out of the truck and LaBelle kicked him. The jury submitted questions during deliberations, asking the judge to confirm that the charge of assault and battery by means of a dangerous weapon referred to the shod foot, and whether they could separately consider whether there had been an assault and battery, "i.e., kneeing." The jury also asked whether the defendant could be found guilty of assault and battery by means of a dangerous weapon but not assault and battery, "or vice versa"; about the lesser charge of assault and battery; and if they were required to find LaBelle guilty if they found the defendant guilty. The judge answered the last question "no" and clarified the scope of the charges against the defendant.
2. False report. "To support a false police report conviction, the evidence must establish that the defendant, acting as a police officer in the course of [his] official duties, filed a false written report knowing the same to be false in a material matter." Garvey, 99 Mass. App. Ct. at 149, quoting Commonwealth v. Cohen (No. 1), 456 Mass. 94, 125 (2010). See G. L. c. 268, § 6A. The defendant maintains that the report was accurate with respect to the operating under the influence offense, but this misses the mark. "A police report has purposes beyond simply establishing the basis for a complaint application." Cohen, supra. A police report affects "any inquiry into whether [a police officer] acted permissibly and reasonably." Id. at 126. Faced with seven broken ribs and a fractured vertebra, the jury were permitted to find that once the defendant found out about the extent of Cebula's injuries, he engaged in a carefully orchestrated effort to falsify the report by lying about his conduct and LaBelle's involvement. Contrary to the defendant's argument, these were acts of commission, not omission. The evidence was sufficient.
3. Misleading a police officer. "[T]o find the defendant guilty of misleading a police officer with a lie, the jury would need to find not only that the statement was false, but that it reasonably could have led law enforcement officers to pursue a materially different course in their investigation from one they otherwise would have pursued because it sent them in the wrong direction." Commonwealth v. Tejeda, 476 Mass. 817, 819 (2017). See Commonwealth v. Paquette, 475 Mass. 793, 802 (2016) (interpreting term "misleads" in statute "to include those lies that reasonably could lead investigators to pursue a materially different course of investigation"). For the reasons previously stated, the evidence was sufficient to permit a jury to infer that the police report and the defendant's other statements to the police contained lies regarding the level of force he employed. The report also recommended that Cebula be charged with disturbing the peace. A rational jury could find that this recommendation and the defendant's written and oral statements to the police were intended to mislead law enforcement in the investigation by casting Cebula in a negative light and deflecting attention from the defendant's conduct.
See note 1, supra.
Judgments affirmed.