Opinion
14-P-1747
11-05-2015
COMMONWEALTH v. DEBORAH DRIES.
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
After a jury-waived trial, the defendant was convicted of assault and battery on a police officer in violation of G. L. c. 265, § 13D. On appeal, she claims that: (1) the judge erroneously denied her postjudgment motion for a required finding of not guilty, because there was insufficient evidence to support her conviction; (2) the judge erroneously denied her motion for a new trial; (3) the judge's comments during the trial denied the defendant a fair trial; and (4) trial counsel provided ineffective assistance. We affirm.
The defendant's husband and codefendant, Wayne Sanborn, was found not guilty of disorderly conduct.
1. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to present sufficient evidence to support her conviction of assault and battery on a police officer, and thus the judge erroneously denied her motion for a required finding of not guilty. We disagree.
"An 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 from Commonwealth v. McCan, 277 Mass. 199, 203 (1931). "[A] nonharmful touching is a battery only if there is no consent." Ibid., quoting from Commonwealth v. Burke, 390 Mass. 480, 481 (1983).
The defendant claims that her touching of Officer Molesky was an incidental rather than an intentional act. However, when the evidence is viewed in the light most favorable to the Commonwealth, this claim fails because the trier of fact was entitled to conclude that the defendant intentionally touched Molesky. Indeed, Molesky testified that he felt the defendant on his back, pulling at his shirt, and Officer Ferbert testified that he saw the defendant on Molesky's back, grabbing him and causing his lapel microphone to fall off. Molesky's and Ferbert's reactions to the defendant's actions also allow the inference that the touching was nonconsensual. Molesky pushed the defendant off his back and Ferbert grabbed her and told her to back up. Molesky subsequently arrested her. There was sufficient evidence to support the conviction.
2. Motion for new trial. The defendant next claims that the motion judge, who was also the trial judge, erred in failing to consider "whether the defendant had the right to use reasonable force to protect another against excessive or unreasonable force by the police." We disagree. "Self-defense is reasonably invoked at a criminal trial only if there was a threat of harm to the person protected." Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004), citing Commonwealth v. Monico, 373 Mass. 298, 303 (1977).
The defendant also claims that her conviction was "against the weight of evidence." In support, she invites this court to employ the authority granted to the Supreme Judicial Court in murder in the first degree appeals, G. L. c. 278, § 33E. This we cannot do, and decline the invitation. To the extent the defendant claims the judge improperly denied her motion pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), we discern no abuse of discretion.
"An actor is justified in using force against another if to protect a third person when (a) a reasonable person in the actor's position would believe [her] intervention to be necessary for the protection of a third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect [herself]."Commonwealth v. Barbosa, 463 Mass. 116, 135-136 (2012), quoting from Commonwealth v. Martin, 369 Mass. 640, 649 (1976). Additionally, absent excessive force, a defendant cannot assist another in resisting arrest. Commonwealth v. Montes, 49 Mass. App. Ct. 789, 795-796 (2000).
Here, there is no evidence in the record that supports the defendant's claim of defense of another. Although the defendant testified that she was worried for her husband's safety due to his poor health, there was no evidence to indicate that the officers used excessive force. In fact, evidence demonstrated that the officers used only minimal force to effectuate the arrest. Because there was no evidence of excessive force by the police, and the defendant was not justified in touching Officer Molesky, the judge properly denied the defendant's motion for a new trial.
3. Judge's remarks. The defendant argues, for the first time on appeal, that the judge's comments regarding the weakness of the Commonwealth's case and whether the defendants intended to sue the police, deprived her of a fair trial. We disagree. "It is well established that a judge in this Commonwealth may question witnesses to clarify and develop evidence and to advert perjury." Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74 (2005). Only in extraordinary cases, "our appellate courts have held judicial questioning improper, . . . either for its excess, or its lack of impartiality." Ibid.
The defendant also challenges, for the first time on appeal, the Commonwealth's cross-examination of the defendant about whether she intended to sue the police, asserting that the line of questioning was highly inflammatory. We disagree. The questions were a proper inquiry into bias. There was no error, and thus, there is no risk that justice miscarried. See Commonwealth v. Johnson, 431 Mass. 535, 540 (2000).
Here, the judge was within his authority to question witnesses about areas of suspected bias. See ibid. His discretion to do so is even greater in the jury-waived setting that occurred here. Also, many of the comments about which the defendant now complains were directed at the weakness of the Commonwealth's case, and thus, tended to favor the defendant. Even though many of the judge's comments inappropriately denigrated the Commonwealth's case, there is no indication that they prejudiced the defendant. In that posture, the judge's comments did not create a substantial risk of a miscarriage of justice. Compare Commonwealth v. Sneed, 376 Mass. 867, 869 (1978) (judge exhibits overt bias during a jury trial).
The judge's repeated remarks directed to the legitimacy of the Commonwealth's case, his disparaging characterizations of the matter, his criticism of the district attorney's allocation of resources, and his attempts to pressure the parties to settle the case, were all inappropriate. "Article 30 [of the Massachusetts Declaration of Rights] creates a separation of powers among the branches of government giving the prosecutor broad discretion in determining whether to prosecute a case." Commonwealth v. Vascovitch, 40 Mass. App. Ct. 62, 63 (1996). That power does not belong to the judiciary. While judges have an appropriate role to play in pointing out features of a case that may, in turn, encourage the parties to resolve it without a trial, it is not appropriate for a judge to engage in such activity once a trial begins without the agreement of all the parties, and even then the judge must proceed with caution.
4. Ineffective assistance of counsel. Finally, defense counsel claims, again for the first time on appeal, that he was ineffective due to his failure to object to the judge's comments and the Commonwealth's cross-examination of the defendant, because he was lulled into believing there was a predetermination of her innocence. We disagree.
As admitted here, it was counsel's tactical choice not to object. In that circumstance, ineffective assistance occurs only when counsel's tactical choices "were 'manifestly unreasonable' when made." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). The defendant cannot make such a showing. Simply because counsel's strategy was ultimately unsuccessful does not mean that counsel was ineffective or that his tactical decisions were manifestly unreasonable at the time. See id. at 674-675.
Judgment affirmed.
Postjudgment order denying motion for required finding of not guilty affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: November 5, 2015.