Opinion
10-P-1844
11-10-2011
COMMONWEALTH v. VLADIMYR DOMINIQUE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury acquitted the defendant of the charge of assault and battery on a police officer, G. L. c. 265, § 13D, but convicted him of disorderly conduct, G. L. c. 272, § 53. On appeal, the defendant argues that the trial judge (1) incorrectly excluded all evidence of, and precluded cross-examination about, Boston police department internal affairs division (IAD) reports concerning the Commonwealth's police witness, and (2) wrongly denied the defendant's motion for a required finding of not guilty based on the insufficiency of evidence. For the following reasons, we affirm.
1. Exclusion of the IAD reports and related cross-examination. 'The right of a criminal defendant to cross-examine a prosecution witness to show the witness's bias, and hence to challenge the witness's credibility, is well established in the common law, in the United States Constitution (Sixth Amendment), and in the Constitution of the Commonwealth (art. 12 of the Declaration of Rights).' Commonwealth v. Tam Bui, 419 Mass. 392, 400 (1995). However, as a necessary predicate, the defendant 'must make a plausible showing that the circumstances existed on which the alleged bias is based.' Id. at 401. 'If, on the facts, there is a possibility of bias, even a remote one, the judge has no discretion to bar all inquiry into the subject.' Id. at 400. 'Whether the anticipated evidence demonstrates bias is a matter within the discretion of the trial judge.' Commonwealth v. Taylor, 455 Mass. 372, 380 (2009).
The defendant's theory of bias is that the arresting officer, Shawn Marando, fabricated the charges against the defendant in order to cover up his unnecessary use of mace against the defendant, because Officer Marando knew that an additional citizen complaint would place him in serious disciplinary trouble by reason of his history of IAD reports. The theory is too tenuous; it was not entitled to pursuit by introduction of the reports or by cross-examination. See Commonwealth v. Tam Bui, 419 Mass. at 401. The trial judge acted within sound discretion to bar inquiry into the IAD reports because the proposed evidence failed to demonstrate circumstances the gravity or timing of which was likely to motivate a police officer to fear a potential complaint from a citizen.
Evidence of bias usually exposes a prior connection or relationship between the defendant and witness or some motivating actual or potential benefit to the witness from false testimony. See Commonwealth v. Ahearn, 370 Mass. 283, 286 (1976) (holding that an officer filing a criminal complaint against a civilian after discovering that the civilian had sought a civilian complaint against the officer required a bias inquiry); Commonwealth v. Henson, 394 Mass. 584, 588 (1985) (holding that the possibility that the prosecution witness is hoping for favorable treatment on a pending criminal charge is sufficient to require a bias inquiry). Here, the defendant's speculative theory fails to expose either of these categorical circumstances.
First, cross-examination to show bias can appropriately uncover a relationship between the witness and the defendant. See Commonwealth v. Ahearn, 370 Mass. at 286. The details of the relationship are necessary for a jury to assess a possible improper motive or bias of a witness against the defendant. The present record shows no such relationship between Officer Marando and the defendant. Particularly, the IAD reports show no prior connection between them.
Second, cross-examination for bias may usefully reveal an incentive for false testimony by a witness. See, e.g., Commonwealth v. Joyce, 382 Mass. 222, 224- 230 (1981) (the rape shield law, G. L. c. 233, § 21B, cannot preclude cross-examination of a rape complainant about prior charges of prostitution which might motivate her to accuse the defendant in an effort to preempt a further charge of prostitution); Commonwealth v. Hall, 50 Mass. App. Ct. 208, 211-213 (2000) (trial judge wrongly excluded evidence and precluded cross-examination of police witnesses about the alleged brutality of the arrest of the defendant; evidence of brutality -- offered by a third-party defense witness and supported by proffered medical records and photographs of injuries -- would support the inference of biased police testimony designed to conceal such abuse).
The defendant alleges that Officer Marando knew of his previous IAD reports and fabricated the disorderly conduct charge to protect his job status. Officer Marando had been subject to seven reports over a period of six years. Only three reports characterized complaints as 'sustained.' The other reports absolved him of alleged faults. The sustained IAD reports were not associated with any ongoing investigations or pending sanctions. Furthermore, the sustained IAD reports reveal instances of poor judgment (harsh language to a bystander at an arrest scene; failure to report steroid trafficking or use in the department; failure to report chargeable conduct at a domestic abuse scene). As the first sustained IAD report states, '[U]nder the totality of the circumstances in which the statement was made, P.O. Marando's conduct is both understandable and excusable.' The severest sanction against him was an oral reprimand resulting from the most recent of the sustained IAD reports. The record does not mention termination or suspension as a consequence of the IAD reports, either individually or cumulatively. They contain no reference to violent behavior or false arrests. In short, the sustained IAD reports do not reveal circumstances on which the alleged bias is based, namely, Officer Marando's fear of departmental sanctions.
The defendant emphasizes that the IAD reports put Officer Marando in a status of '[o]verall [a]lert,' or a posture indicating the need for ongoing review because four complaints had accrued against him within a twenty-four month period. However, the record does not inform us of the practical effect of that status. The four underlying complaints include two which the IAD deemed unfounded. The tentative character of '[o]verall [a]lert,' its uncertain basis, and the absence of any specific sanctions leave it short of a reasonable basis for suspicion of a defensive and pretextual arrest.
The defendant places special reliance upon Commonwealth v. Hall, 50 Mass. App. Ct. 208 (2000). In Hall, a Superior Court jury convicted the defendant of trafficking in cocaine. The trial judge excluded evidence of a beating of the defendant by multiple police officers in the course of his arrest after a car chase. Id. at 211-212. The proposed evidence included medical records, photographs of the defendant's injuries after arrest, and the proffered testimony of a witness. The judge excluded also cross-examination of the arresting police upon the subject. This court ruled that the alleged police brutality furnished motive for the arresting officers to offer false or biased testimony, vacated the conviction, and ordered a new trial. Id. at 211-213.
Our case differs significantly. In Hall, the misconduct imputed to the police was severe and the evidence offered in support of it substantial and specific. Those features made the arresting officers' motive to lie about the charged offense or their bias against the defendant plausible. Here, the lower key of the alleged misconduct and the conjectural fear of discipline leave the evidence of bad motive or bias speculative rather than plausible. See Commonwealth v. Tam Bui, 419 Mass. at 401-402. The defendant's hypothesis remains too attenuated to justify the risk of diversion of the jury's attention from the charges against the defendant to an exploration of the arresting officer's disciplinary history.
2. Sufficiency of the evidence for a prima facie case of disorderly conduct. This court examines the evidence 'in the light most favorable to the prosecution [to determine whether] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Consequently, we must resolve all issues of credibility in favor of the Commonwealth. Commonwealth v. James, 424 Mass. 770, 785 (1997). The offense of disorderly conduct includes 'the refusal to obey a police order.' Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 (2009).
Viewing the evidence in the light most favorable to the Commonwealth, we find sufficient evidence to establish a conviction of disorderly conduct. Officer Marando testified that the defendant pulled on his arm while Officer Marando was performing an arrest and that the defendant continued to pull on his arm despite his order to stop. Credibility was the province of the jury. They were free to believe the officer's testimony. That belief would support the conviction.
Judgment affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),