Opinion
No. 11–P–801.
2012-11-19
COMMONWEALTH v. Ottoniel LARA.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction for resisting arrest,
arguing principally that his right to confront the witnesses against him was violated and that a misstatement in the prosecutor's closing deprived him of a fair trial. We affirm.
The defendant was also convicted of assault by means of a dangerous weapon. He has raised no appellate issues with regard to that conviction.
Confrontation clause. The Commonwealth's only witness at trial was one of the two police officers who had gone to the defendant's abode to arrest him. The officer testified, without objection, that he was “aware that [the] defendant was informed that he was being placed under arrest.” Further detail as to how the officer was made aware of this was never properly admitted, because the judge sustained the defendant's objection to the officer's testimony that his partner had informed the defendant that he was under arrest. Nevertheless, the defendant treats such testimony as if it had been admitted,
and based on this, he argues that his Sixth Amendment right to confront the witnesses against him was violated because the partner never testified. However, there is no merit to the defendant's argument even if the portion of the testimony to which the defendant objected is considered. It is true that the testimony at issue to some extent concerned an out-of-court statement by an individual who did not testify at trial. “The admission of a testimonial statement without an adequate prior opportunity to cross-examine the declarant, however, violates the confrontation clause only if the statement is hearsay, that is, offered to prove the truth of the matter asserted.” Commonwealth v. Hurley, 455 Mass. 53, 65 n.12 (2009), citing Crawford v. Washington, 541 U.S. 36, 59–60 & n.9 (2004). In this case, any testimony from the officer that touched on his partner's statement was offered not for the truth of the matter asserted, but for its effect on the defendant. In other words, the purpose of the testimony was not to prove that the defendant was under arrest, but instead to prove that the defendant was aware that the police intended to arrest him. Because the evidence was offered for a nonhearsay purpose, the defendant's confrontation rights were not violated.
The defendant relies in part on an interchange between the jury and judge during their deliberations. The jury asked the judge whether the officer's testimony that his partner had told the defendant he was under arrest had been admitted into evidence. With the assent of both parties, the judge responded, “The court is unable to answer this because it is a question of fact and not a question of law. The collective memory of the jury will control.” The defendant now asserts that the judge's response “impermissibly allowed the jury to consider [the officer's] inadmissible testimonial hearsay.”
The defendant highlights that the officer testified that his partner's statement was made in Spanish and that he (the officer) did not speak Spanish. However, the defendant has raised no argument (either at trial or before us) that the statement was inadmissible on the ground that a proper foundation was never laid as to how the officer understood the thrust of his partner's statement. The only error the defendant alleges is a violation of his confrontation clause rights. In any event, as discussed infra, the jury's conclusion that a reasonable person in the defendant's position would have understood he was under arrest is hardly dependent on evidence that the defendant was specifically told he was under arrest.
Closing argument. During her closing argument, the prosecutor erroneously said that the police witness (not his partner) had told the defendant he was under arrest.
There was no objection, and the question is therefore whether the error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). The defendant overstates the discrepancy between the prosecutor's statement and the underlying evidence. The thrust of both was that the defendant had been informed he was under arrest; exactly who told him that was of little import.
The defendant also challenges the prosecutor's suggestion in her closing that “maybe [the defendant] had an argument with [his] wife” on the afternoon of his arrest. That statement was a fair argument based on the evidence at trial.
Moreover, the defendant grossly overstates the import of any evidence that he was specifically told he was under arrest. The altercation between the defendant and the police officers was lengthy, with the defendant swinging a box cutter at the officers, and the officers needing to deploy pepper spray twice before they were able to subdue the defendant. The evidence also showed that the defendant responded to being told he was under arrest by immediately assuming a “fighting stance” and telling the police that “he wasn't under arrest,” and that he “refus[ed] to lower his hands and turn around and place his hands behind his back, so he could be placed under arrest.” Additionally, even after the defendant was placed in handcuffs “[h]e continued to try to pull away” from the officers as they escorted him down the stairs, almost causing the officers to fall down the stairs. Therefore, there were many points during the course of the encounter when a reasonable person would have understood that he was under arrest, regardless of whether he was explicitly so informed at the outset, or by whom. Any of these individual incidents would be sufficient to sustain the charge of resisting arrest. See G.L. c. 268, § 32B( a ). See generally Commonwealth v. Soun, 82 Mass.App.Ct. 32, 34–37 (2012), and cases cited. The defendant cannot demonstrate that the prosecutor's misstatement about which officer told the defendant he was under arrest caused any risk that justice miscarried.
Cross-examination. The defendant's remaining argument requires little discussion. The record, as reconstructed by the Commonwealth, makes clear that the judge ruled that the defendant's direct testimony had opened the door to the facts of the domestic dispute that led to the defendant's arrest. The prosecutor therefore did not “exploit excluded evidence” by cross-examining the defendant on that topic.
Judgments affirmed.