Opinion
16-P-347
06-14-2017
COMMONWEALTH v. Princewill O. DANIELS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
When the defendant grew unruly during booking after an arrest, an officer pushed and held him against a wall, and when the defendant continued to struggle, the officer punched him several times in the face, whereupon the defendant grabbed the officer's hand and slightly injured his right thumb. From his resulting conviction of assault and battery on a police officer, the defendant appeals, asserting error in the judge's instruction on the police privilege and in the prosecutor's closing argument. We affirm.
1. Police privilege instruction. The judge instructed the jury on the defendant's right of self-defense and on the "police privilege" to use necessary and reasonable force in carrying out their official duties. The latter instruction followed verbatim Instruction 9.260(12) of the Criminal Model Jury Instructions for Use in the District Court (2009), which states in part: "Because of the nature of the job, a police officer is permitted to use force in carrying out his (her) official duties if such force is necessary and reasonable," and then explains how that principle applies in the context of an arrest and a defendant's resistance to arrest. Because the defendant did not object at trial, we review to determine if the instruction was erroneous, and if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).
We reject the defendant's argument that the police privilege applies to police use of force only when a defendant is charged with resisting arrest, and not to postarrest steps such as the booking process. The court recognized in Commonwealth v. Asher, 471 Mass. 580 (2015), that the police privilege instruction "is designed for use in cases involving charges of resisting arrest or assault and battery on a police officer or similar authority figure" (emphasis added). Id. at 587 n.13, citing, inter alia, Commonwealth v. Moreira, 388 Mass. 596 (1983) (assault and battery on police officer), Commonwealth v. McMurtry, 20 Mass. App. Ct. 629 (1985) (assault and battery on correction officer), and Commonwealth v. Francis, 24 Mass. App. Ct. 576 (1987) (same). There was no error in giving the instruction here, and thus, no risk of a miscarriage of justice.
The defendant misplaces reliance on Commonwealth v. Grandison, 433 Mass. 135 (2001), which concerned not the applicability of the police privilege to police officers' postarrest conduct but, rather, whether a defendant's postarrest conduct at a police station could support a conviction of resisting arrest. See id. at 145-146.
The defendant further argues that the police privilege instruction improperly focused the jury on whether the officer employed excessive force in attempting to subdue the defendant, rather than on what the defendant claims should have been the sole issue: whether he "was permitted to use the force he used to stop an attack" and therefore "had an absolute defense" (i.e., self-defense) to the charge of assault and battery on a police officer. This argument misapprehends the law.
"Even in circumstances where the defendant would be justified in using force in lawful defense of his person against a third person, he may not do so against a police or correction officer unless the officer uses excessive or unnecessary force." Francis, 24 Mass. App. Ct. at 579, citing McMurtry, 20 Mass. App. Ct. at 632. To determine whether the defendant here had the right to use force in self-defense, the jury had to determine whether the officer used excessive or unnecessary force in attempting to subdue him. The instruction properly focused the jury on that question. Contrary to the defendant's argument, this did not lessen the burden on the Commonwealth. The judge clearly instructed that "[t]he Commonwealth must prove, beyond a reasonable doubt, that the police officer did not use excessive or unnecessary force."
Nor do we see how the defendant was harmed when the judge, again following the model instruction verbatim, referred to the police privilege as applying during an arrest, without adapting it to mention specifically its applicability during postarrest events such as booking. If the jury assumed, as might be natural, that the booking process was part and parcel of the defendant's arrest (and neither the judge's instructions nor counsel's arguments gave them any reason to think otherwise), then they could not have been confused by the instruction. If, on the other hand, the jury believed that the arrest was legally complete before the defendant was brought to the police station for booking, see Commonwealth v. Grandison, 433 Mass. 135, 145-146 (2001) —a distinction never mentioned by the judge or counsel—then the jury would have treated the instruction, by reason of its reference to the arrest process, as inapplicable here, thus making the officer's use of force unprivileged and allowing the defendant to use self-defense to the same extent as in an interaction with a private person. Although it would have been permissible to adapt the instruction to explain that the "official duties" to which it applies include the booking process as well as "effecting" an arrest, id. at 145, the defendant did not request such an instruction, and its absence was not error and, thus, did not risk a miscarriage of justice.
2. Prosecutor's closing argument. The defendant timely objected to two statements in the prosecutor's closing argument, and on appeal the defendant challenges three additional statements. We review the preserved claims for prejudicial error, see Commonwealth v. McCravy, 430 Mass. 758, 764 (2000), and the unpreserved claims for error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). After considering the claims, both individually and collectively, we discern no reason to disturb the conviction.
a. Preserved claims. First, in discussing the interaction between an arrestee's right of self-defense and an officer's use of excessive or unnecessary force, the prosecutor invited the jury to "take a look at that law—which is a lot of goobledigook [sic], a lot of words being thrown at you and what you know is the facts." The defendant objected; on appeal he argues that such words improperly suggested that the Commonwealth does not hold the law in high regard and minimized the importance of the law that the jury must apply. The defendant's observation has some force, but nevertheless we see no prejudice here. The prosecutor's closing argument emphasized that the jury's job was to "follow the law" as the judge would it explain it to them. The prosecutor carefully went through each element of the offense that he was required to prove—and each element of the self-defense argument that he was required to disprove—beyond a reasonable doubt. He asked the jury to put aside considerations of what they would have done in the defendant's shoes, because "what's important is ... what the law says he's able to do." Taken as a whole, the prosecutor's argument did not have the effects that the defendant ascribes to the single, isolated use of the word "goobledigook."
In response to this and the defendant's other objection discussed infra, the judge declined to give a specific curative instruction, but instead gave a general instruction that closing arguments are not evidence.
No doubt there are other, more respectful ways for a prosecutor to acknowledge to the jury the complexity of the law that they must follow and hence of the facts that he or she must argue to them.
The defendant also objected to the prosecutor's following suggestion to the jury: "[C]onsider in this big picture—I want you to take a step back when you look at this—and really say, is this a case where the defendant should be entitled to argue that he's acting in self-defense?" The defendant argues that this improperly suggested that the jury should decide the legal question whether he could argue self-defense, rather than the factual question whether his actions amounted to self-defense in the circumstances.
In context, we think it highly unlikely that the jury would have understood the remark in that manner. Defense counsel had just finished his closing argument asserting that the officer had in fact used "unnecessary and excessive" force, thereby giving the defendant the right to touch the officer. The prosecutor's closing then acknowledged that "if ... you find that the police were using excessive or unnecessary force ... then the person may defend themselves, and may do so with as much force as is necessary." Following these closing arguments, the judge gave the police privilege instruction discussed above, confirming that "if a police officer uses excessive or unnecessary force," an arrestee "may defend himself, with as much force as reasonably appears to be necessary." We have no doubt that the jury understood they were to decide the factual questions just mentioned—i.e., whether the defendant was properly acting in self-defense—and not the legal question whether the defendant could make the self-defense argument at all. After considering the prosecutor's comment "in the context of the entire argument" and considering "whether the judge's instructions mitigated [any] error," Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), we conclude that any error in the challenged comment caused no unfair prejudice to the defendant.
The prosecutor's argument immediately following his comment confirmed that the "big picture" he urged the jury to consider was the entire factual picture of the interactions between the defendant and the officer over the course of the evening in question, not any legal issue.
b. Unpreserved claims. For the first time on appeal, the defendant objects to the prosecutor's rhetorical question to the jury at the outset of his closing, "What ability are we going to give law enforcement officers to do their job?" The defendant suggests that this was the equivalent of an improper invitation to convict him in order to maintain an "orderly society." See Commonwealth v. Roberts, 433 Mass. 45, 54 (2000). Although the comment taken in isolation might be viewed as impermissibly asking the jury to resolve a larger question of law or social policy rather than the defendant's guilt, we must consider "the context of the entire argument." See Santiago, 425 Mass. at 500. Here, the prosecutor promptly narrowed his focus to the particular evidence in this case and the jury's obligation to apply the law to that evidence. Similarly, when the prosecutor returned to the point at the end of his argument, he properly maintained this focus on the evidence.
He argued:
"[I]f the defendant didn't lose his temper, lose his cool, point in a threatening way at the officer, get inches away from his face and be out of control, we wouldn't be here today, but that's the way he acted.
"The defense would like you to believe that he was entitled to act in the way that he did. Now, you may have feelings about that—I may have feelings about that—but the way that we respond and what your job is as a jury, is to follow the law on that."
He asked the jury to consider the defendant's unruly conduct throughout the interaction, as well as the officer's desire to complete the booking process, and then urged the jury to find that the force used by the officer was acceptable in the circumstances: "The question you have to answer is, what tools are we going to give an officer—in these scenarios—to do his job? He wasn't going to pull his gun. He didn't pull his taser. So, what's he supposed to do?"
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In reviewing claims of improper closing argument, we must consider whether the defendant timely objected, whether the judge's instructions mitigated the errors, whether the errors went to the heart of the issues at trial or concerned collateral matters, whether the jury would be able to sort out the excessive claims, and whether the Commonwealth's case was so overwhelming that the errors did not prejudice the defendant. See Kozec, 399 Mass. at 517-518 ; Commonwealth v. Niemic, 472 Mass. 665, 673-674 (2015).
Here, defense counsel's failure to object "is some indication that ... the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 359-360 (1985). Although the prosecutor's rhetorical question went to an important issue in the case—whether the officer had used excessive or unnecessary force—and although the Commonwealth's evidence that he had used only reasonable force was not overwhelming, we think the jury would have been able to sort out argument from evidence and remain focused on the task before them. In this they were aided by the judge's instructions that counsel's arguments were not evidence, and that they should decide "whether the defendant is guilty or not guilty and no more," based solely on the evidence and reasonable inferences therefrom.
The defendant also objects to the prosecutor's statement, "We don't want to encourage people to start fighting the police and grabbing the police's guns and have a shoot out, just because they disagree with the process of the arrest." The prosecutor was responding in part to the defendant's own closing argument, which stressed the evidence that the defendant strongly objected to having been arrested, was "extremely upset," was using his hands to express himself, and at some point had pointed his finger near the officer's face, which had led the officer to push the defendant against the wall. To the extent that the prosecutor was arguing the larger policy underlying the prohibitions against resisting arrest and assault and battery on a police officer, the remark would have been better left unsaid.
The remark also improperly referred to facts not in evidence, the defendant argues, because there was no testimony that the defendant had any inclination to grab the officer's gun. In the same vein the defendant challenges the prosecutor's rhetorical question whether the officer should have "[l]et this guy flail about, point in his face and wait until the inevitable disaster occurs, where he pulls the officer's gun out?" But there was testimony, recounted in the defense closing, that the defendant, upset, had grabbed papers off of the counter in the booking room, and that after the officer struck him, he grabbed the officer's hand and twisted his thumb. Defense counsel in closing also argued that instead of pushing and striking him, the officer could have used his gun (or his pepper spray, or his Taser) to gain control of the situation in the booking room. The prosecutor argued in response that the officer had attempted to "control the scenario and not use more force than [was] necessary."
That the defendant in his state of upset was inclined to grab things, and that the officer should have considered drawing his gun, were points introduced into the closing arguments by the defense. Although the prosecutor would have done better not to escalate the argument by encouraging speculation about inevitable disasters involving grabbing guns, we think, after considering the factors set forth in Kozec, 399 Mass. at 517-518, and Niemic, 472 Mass. at 673-674, that the challenged comments, even if erroneous, did not create a substantial risk of a miscarriage of justice. See Kozec, 399 Mass. at 518 n.8.
Judgment affirmed.