Opinion
15-P-608
03-14-2016
COMMONWEALTH v. JEFFREY S. BURGESS.
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 a conviction on a charge of resisting arrest after a jury trial in District Court. He argues that his motion for a mistrial should have been allowed, and that the judge should have instructed the jury on voluntary intoxication. We affirm.
Background. On February 26, 2013, Joseph Yochum was driving to his friend's house in Buzzards Bay when he came upon a Cadillac parked in the middle of an intersection. Yochum pulled around the Cadillac and into his friend's driveway. As Yochum and his friends were standing outside of the friend's house, the defendant exited the Cadillac, approached the group, and began yelling at and pushing them. The group called the police. Bourne police Officers Thomas Spillane and Andrew Lieberwirth responded and observed that the defendant had alcohol on his breath, that his eyes were bloodshot, and that he was unsteady on his feet. After speaking with the group, Spillane advised the defendant that he was being placed under arrest. The defendant tried to push through the officers to reach the group, stating, "if you want a problem, we can have a problem." The officers physically placed the defendant's hands behind his back because he was "actively flailing his body and resisting"; specifically, the defendant "was tensing up, not complying with putting his hands behind his back," pulling away from the officers, and swaying from side to side. The defendant kicked and shuffled his feet while the officers were escorting him to the cruiser, and he placed his foot on the cruiser to avoid being pushed inside. When the defendant failed to respond to warnings or to enter the cruiser, Spillane delivered a "drive stun" to his leg with a "taser device." Spillane had to apply another drive stun to the defendant's lower back before the police were able to get the defendant into the cruiser. Lieberwirth performed an inventory search of the Cadillac before it was towed from the scene and discovered a "nip" bottle of an alcoholic beverage on the dashboard, with "just a little bit left in the bottom."
As explained by Spillane, "the taser device has two different functions. A drive stun, you can place the item up to the person's body and it delivers an arcing shock to get the person to comply. The other technique that the device is, it actually shoots out some probes that enter the body and deliver a five second shock."
A criminal complaint issued charging the defendant with operating under the influence of intoxicating liquor or with a blood alcohol level above 0.08 per cent, possession of an open container of alcohol (a civil offense), disorderly conduct, and resisting arrest. Following a trial before a jury of six, the defendant was acquitted of operating under the influence of alcohol and disorderly conduct. He was convicted of resisting arrest, and found responsible for possession of an open container.
The defendant did not appeal from the responsible finding.
Discussion. 1. Denial of motion for mistrial. During cross-examination, in response to a request from defense counsel that he specify the charges pursuant to which the defendant was arrested, Spillane stated, "[o]perating under the influence of alcohol, second offense[,] we determined back at the station when his record --." The judge sustained defense counsel's objection and instructed the jury to disregard Spillane's answer. Following a brief recess, the defendant moved for a mistrial, arguing that "[n]o corrective instruction will take [Spillane's response regarding a second offense] out of the minds of these jurors." The judge noted that the jury "did shake their heads accepting my instruction to disregard" Spillane's comments, and he denied the motion.
The defendant's pro se notice of appeal states that he also appeals from the denial of his motions for required findings of not guilty and "post-trial motions." We decline to address his appeal from those rulings, as they are not addressed in his brief. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). We note that the defendant is represented by counsel on appeal and that, in any event, the record provides ample support for the conviction.
We review the judge's decision for an abuse of discretion, Commonwealth v. Baptista, 86 Mass. App. Ct. 28, 32 (2014), and see none. "The judge was in the best position to assess any potential prejudice and to tailor an appropriate remedy short of declaring a mistrial, where possible," Commonwealth v. Copney, 468 Mass. 405, 415 (2014), and he carefully considered the jury's response to his immediate curative instruction in deciding that they could disregard the comments. The judge stated that he would make clear in his final instructions "what is evidence [and] what is not evidence," and that he would reinstruct the jury to disregard evidence that was stricken. The judge properly presumed that the jury would follow his instruction. See ibid. ("The jury are presumed to follow [the judge's] instruction to disregard a particular matter").
2. Voluntary intoxication. The defendant's second argument on appeal, that the judge should have instructed the jury on voluntary intoxication as a defense to resisting arrest, requires little discussion. The judge raised the issue sua sponte at the charge conference, and defense counsel requested that the judge "[s]tay away from that." In his closing, defense counsel argued that the defendant was "not drunk driving," and that "there's no evidence to support the operating under the influence charge." There was no objection to the charge as given, and the defendant does not argue that trial counsel rendered ineffective assistance. The defendant's challenge "focuses on the instructions without consideration of the theory on which the case was tried." Commonwealth v. Ely, 388 Mass. 69, 73 (1983). In not giving the voluntary intoxication instruction, we see no abuse by the judge of his "broad discretion." Commonwealth v. Williams, 53 Mass. App. Ct. 719, 720 (2002).
Judgment affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 14, 2016.