Opinion
15-P-1727
05-15-2017
COMMONWEALTH v. David FERNANDES
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of failure to stop for a police officer and reckless operation of a motor vehicle. He was acquitted of three firearm charges and various other charges were dismissed or nolle prossed prior to trial. The sole contention raised on appeal concerns the sufficiency of the evidence in support of the conviction of failure to stop for a police officer. We affirm.
The jury also found the defendant responsible for three civil infractions.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On the evening of September 6, 2014, four Boston police officers were working in "plain clothes" and traveling in an unmarked cruiser in the Upham's Corner area of Boston when they saw the driver of a Dodge Charger make a right turn without signaling. The officers decided to stop the vehicle. Despite the activation of the cruiser's lights and siren, the driver, later identified as the defendant, did not stop. Instead, he made a right turn, then made a left turn onto a one-way street traveling in the wrong direction, and began to speed. The defendant then crashed into a parked minivan, got out of the car, and ran away. A foot chase ensued. Ultimately, the defendant was apprehended in the backyard of a nearby residence wearing a tank top, boxer shorts, and socks. The defendant had taken off his sweater, pants, and sneakers and had hid them under the stairs where he was sitting when he was apprehended.
Parts of the chase were filmed by area surveillance cameras. The footage introduced at trial depicted three officers in pursuit of the defendant. The officers' jackets say "Boston Police" in large letters across the back. There was also footage depicting reflective material on the front left breast of the jackets, and one of the surveillance videos depicts an officer wearing a lanyard with a rectangular object around his neck. In addition, there was evidence that officers on duty in plain clothes generally wear a badge or police insignia on their outermost garment.
Discussion. The defendant claims that the judge erred in denying his motion for a required finding of not guilty at the end of the Commonwealth's evidence because the evidence failed to establish that the police were in uniform or displayed their badges as required by the statute. He also contends that the judge erred in denying his motion for a required finding of not guilty filed at the close of all the evidence because the Commonwealth's case deteriorated after he presented his case.
We turn first to the Commonwealth's evidence. The relevant language in the failure to stop statute provides that "[a]ny person who, while operating or in charge of a motor vehicle ... shall refuse or neglect to stop when signalled [sic ] to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment shall be punished by a fine of one hundred dollars." G. L. c. 90, § 25, as amended through St. 1989, c. 341, § 114. In Commonwealth v. Ross, 73 Mass. App. Ct. 181 (2008), a case involving a similar challenge to the evidence, we stated:
"While a literal reading [of the statute] would require that ... the Commonwealth ... prove that the officer in question was either in uniform or displayed his badge on his coat or garment, ... [w]e will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable.... [A]s long as the goals of the statute are not thwarted, flaws of detail in its observance can be overlooked.... One purpose of the statute is to ensure that the motorist is informed that the person demanding that he stop has the authority to make such a demand."
Id. at 183 (quotations omitted).
Here, as in Ross, we conclude that the evidence established beyond a reasonable doubt that the defendant knew he was being ordered to stop by police officers. See id. at 184-185. Although the cruiser was unmarked, its lights and siren were activated. The defendant's immediate response to being followed by the cruiser was to drive evasively and then flee on foot. At least three of the officers were wearing jackets bearing the words "Boston Police" and testimony that officers in plain clothes "would generally wear ... a police badge displayed on [their] outermost garment or police insignia, something that indicates [they are] ... police officer[s]" was corroborated by surveillance video. That evidence was sufficient to prove the elements of the offense beyond a reasonable doubt. As such, there was no error in denying the defendant's motion for a required finding of not guilty at the close of the Commonwealth's evidence.
There is no dispute that the officers were not in uniform.
Nor did the Commonwealth's case deteriorate once the defendant presented his case. "Deterioration only occurs where the Commonwealth's evidence of necessary elements is later shown to be incredible or conclusively incorrect." Commonwealth v. Gomez, 450 Mass. 704, 710 (2008) (quotation omitted). "Because the credibility of the defendant's witness[ ] and the weight of [her] testimony are issues for the jury to decide, the Commonwealth's case could not have deteriorated where the defendant's evidence at trial turned solely on the credibility of his witness[ ]." Commonwealth v. Platt, 440 Mass. 396, 404 (2003).
Airzela Monteiro, the defendant's cousin, testified that the defendant had been intoxicated that day and vomited on his clothing. Based on this testimony, the defendant argued that he had changed his clothes because they "smell[ed]" and that he had been misidentified by police.
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Judgments affirmed.