Opinion
20-P-1029
08-23-2021
COMMONWEALTH v. Michelle TIERNEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of resisting arrest and assault and battery on a police officer. On appeal the defendant argues that the trial judge erred by not providing a self-defense instruction or a limiting instruction about the defendant's prior convictions, and that improper remarks in the prosecutor's closing argument require reversal. We affirm.
The jury acquitted the defendant of larceny of a motor vehicle, assault and battery by means of a dangerous weapon, and leaving the scene of an accident causing property damage.
Background. 1. The Commonwealth's case-in-chief. Around 1:42 A.M. on July 16, 2017, police officer Michael LaHair, who was in uniform, responded in a marked police cruiser to the scene of a car accident. When he arrived, bystanders yelled and pointed to a woman running down the street. Officer LaHair continued driving and instructed the woman, later identified as the defendant, to stop. The defendant said, "No," ducked under a guardrail and fence, and ran down a hill. Less than a minute later, Officer LaHair saw the defendant run toward a utility truck and climb onto the back of it. Officer LaHair ordered the defendant several times to get down, but she said, "No," and remained on the truck.
Officer LaHair climbed on the truck, told the defendant that she was under arrest, and attempted to hold her down as he waited for assistance. Officer Michael Prizio, also in uniform, arrived on scene and assisted Officer LaHair in pulling the defendant off the truck. The defendant grabbed onto parts of the truck and kicked her legs. When Officer Prizio tried to control her legs, she kicked him in his "chest and [his] arm area."
Once on the ground, the defendant continued to struggle and refused to put her hands behind her back. The officers handcuffed the defendant and took her into custody. Both officers denied striking the defendant at any point during the encounter.
2. The defense. The defendant testified to the following version of events. On the night in question, the defendant was riding in a car driven erratically by a man named Peter who "had a strong accent." The car crashed, and the defendant got out, ran from the scene, and hid in the back of a truck because she feared Peter.
The defendant heard a man approach and yell, "[G]et the fuck down off the truck," and that he would kill her if he had to go up there. The defendant thought that the man was Peter and "just stayed silent, in a ball." After the man climbed on the truck, the defendant learned that he was a police officer. The officer kicked, punched, and jumped on the defendant and said that he was going to "fucking kill [her]." The defendant yelled for him to stop while remaining crouched in a ball. Eventually, a second officer arrived and pulled the defendant off the truck, causing her body to hit the ground.
Discussion. 1. Self-defense instruction. At the close of the Commonwealth's case-in-chief, the defendant requested a self-defense instruction. After the defendant agreed that there "[hadn't] been any testimony as to any self-defense claim at [that] point," the judge denied the request. The defendant did not renew her request after she testified or object to the judge's final instructions.
A defendant is entitled to an instruction on the use of nondeadly force in self-defense if the evidence "supports a reasonable doubt that (1) the defendant had reasonable concern for [her] personal safety; (2) [she] 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. King, 460 Mass. 80, 83 (2011), quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). In evaluating whether there was a sufficient evidentiary basis for a self-defense instruction, we resolve "all reasonable inferences ... in favor of the defendant" and treat her testimony as true. Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
Here, the evidence, even viewed in the light most favorable to the defendant, see King, 460 Mass. at 83, did not warrant a self-defense instruction. As the defendant acknowledged at trial, the evidence in the Commonwealth's case-in-chief did not support a claim of self-defense. Both officers testified that they never struck the defendant, and no evidence was offered to the contrary.
Nor did the defendant's testimony raise a reasonable doubt as to self-defense. The defendant did not testify that she used force against the officers; rather, she maintained that she was crouched in a ball as she was being kicked and punched. Thus, while the defendant's testimony, if believed, could have provided a basis for acquittal, it did not support a claim of self-defense either alone or in combination with the Commonwealth's evidence. See Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130 (1997) (judge not required to instruct on self-defense sua sponte where defendant "flatly denied inflicting [victim's] injuries, admitting only to placing her in a bear-hug"); Commonwealth v. Paton, 31 Mass. App. Ct. 460, 464-465 (1991) (similar). "[A] judge is not required to charge on self-defense, either upon request or on his own motion, where a jury would be left to speculate on a hypothesis not supported by the evidence." Paton, supra at 464. See Commonwealth v. Maguire, 375 Mass. 768, 772 (1978).
2. Instruction on prior convictions. The Commonwealth offered evidence that the defendant was previously convicted of receiving a stolen credit card, uttering a false check, forgery of a check, forgery of a document, improper use of a credit card over $250, and sexual conduct for a fee. The defendant argues that the judge erred by failing to instruct the jury that they could consider these convictions only for the purpose of assessing the defendant's credibility. Because the defendant raises this issue for the first time on appeal, we review to determine whether, if error, it created a substantial risk of a miscarriage of justice. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 55 (2009).
We discern no such risk. The potential prejudicial effect of the prior convictions was limited because they were dissimilar to the crimes of resisting arrest and assault and battery on a police officer. Cf. Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000), quoting Commonwealth v. Drumgold, 423 Mass. 230, 250 (1996) ("Generally, in order for the prejudicial effect to outweigh the probative value of prior conviction evidence, the ‘prior conviction must be substantially similar to the charged offense’ "). The Commonwealth also used the convictions for the proper purpose -- to attack the defendant's credibility -- not for propensity purposes. And importantly, the jury acquitted the defendant of larceny of a motor vehicle, the crime most similar to the prior convictions, demonstrating that the absence of a limiting instruction did not create a substantial risk of a miscarriage of justice.
3. Closing argument. The prosecutor argued in closing:
"[The defendant] conveniently, I suggest to you, tailored her testimony today to what we all heard yesterday. I suggest to you that after hearing the testimony of Mr. Queiroz saying that he was with a friend of his who he only knows by his nickname of Peu, ... and you heard that Mr. Queiroz has an accent. Conveniently, the defendant states she was with someone named Peter who had an accent."
The Commonwealth rightly concedes that these remarks were improper. See Commonwealth v. Alphonse, 87 Mass. App. Ct. 336, 338 (2015) ("prosecutor's statement that the defendant was present at trial and therefore had the opportunity to tailor his testimony is error"). Because the defendant did not object to this part of the closing argument at trial, however, our review is limited to determining whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Gaudette, 441 Mass. 762, 768 n.5 (2004).
Viewing the improper comments "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury," Commonwealth v. Whitman, 453 Mass. 331, 343 (2009), we conclude that they did not create a substantial risk of a miscarriage of justice. The comments were brief and, unlike in Alphonse, were not compounded by an instruction that drew "further attention to the possibility that the defendant had the opportunity to tailor [her] testimony." 87 Mass. App. Ct. at 339. Moreover, the suggestion of tailored testimony was most relevant to the charge of larceny of a motor vehicle; the jury's acquittal of the defendant on that charge, along with two other charges, demonstrates that no substantial risk of a miscarriage of justice resulted. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 924 (2004).
Judgments affirmed.