Opinion
No. 11–P–240.
2012-06-19
COMMONWEALTH v. Jana McKEOWN.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jana McKeown, appeals from her conviction by a District Court jury of one count of assault and battery upon a police officer. She contends that the trial judge erred by failing to give jury instructions on the issues of self-defense, voluntary intoxication, and specific unanimity. We affirm.
Procedural and factual background. Police officers Holmes and Nolan arrived at the defendant's residence in response to a phone call reporting a heavily intoxicated female. Holmes arrived first at approximately 6:30 P. M., and Nolan arrived a few minutes later. Although the defendant denied that she had been drinking, Holmes concluded that the defendant was heavily intoxicated from her slurred speech, her leaning against a wall for support, and the strong odor of alcohol coming from her person. When Nolan arrived, he heard the defendant screaming expletives, and he also concluded that the defendant was heavily intoxicated from her slurred speech, her lack of coordination, and the odor of alcohol.
The officers offered the defendant a choice between being taken to a hospital for medical treatment and being taken into protective custody pursuant to G.L. c. 111B, § 8. The defendant told the officers that she preferred to go to jail. Holmes then began to handcuff the defendant. With her right wrist cuffed, the defendant resisted having her left wrist cuffed by twisting her arm away from the officer. Holmes then placed the defendant in an “arm bar” hold by forcibly straightening her right arm and twisting it behind her back. He used that hold to place her face down on the floor. Holmes finished handcuffing the defendant, and the two officers then picked her up and escorted her out of the house to Holmes' cruiser. The defendant began insisting that she did not wish to be taken into protective custody.
Using his body weight, Holmes held the defendant against the cruiser near the passenger-side rear door while Nolan opened the cruiser's doors. As Nolan was opening the passenger-side front door, the defendant kicked him in the leg. Nolan told the defendant, “don't you kick me,” or words to that effect. Holmes then placed the defendant in the cruiser's backseat, where she lay face down. Nolan went around to the other side of the cruiser and dragged the defendant across the backseat in an effort to get her fully inside the vehicle. The defendant responded by kicking Holmes, who still stood by the passenger-side rear door, in the leg.
The defendant was charged with one count of assault and battery upon a police officer and one count of resisting arrest. The resisting arrest charge was dismissed before trial at the Commonwealth's request. After a jury trial at which Holmes and Nolan were the only witnesses, a District Court jury found the defendant guilty of the remaining charge, and the defendant appealed.
Discussion. 1. Instruction on self-defense. The defendant contends that the judge erred in failing to provide the jury with an instruction on self-defense. She argues that the officers used excessive force by using an “arm bar” hold to push her to the ground; holding her against the cruiser; and, in an effort to get her into the cruiser, dragging her across its backseat. She claims, thus, that there existed a reasonable basis on which the jury could believe that she acted in self-defense in response to excessive force by the officers. We disagree.
A defendant is entitled to an instruction on self-defense if the evidence, in the light most favorable to the defendant without regard to credibility, permits a reasonable doubt that the defendant acted in self-defense.
Commonwealth v. King, 460 Mass. 80, 83 (2011). Although the defendant claims the officers used excessive force, she sustained no injuries as a result of their actions. Moreover, the officers were entitled to use reasonable force in the course of taking the defendant into protective custody, see G.L. c. 111B, § 8, and the force they actually used was reasonable given the defendant's intoxicated state and her resistance to the officers' attempts to handcuff her and place her in the cruiser. As such, there was no evidence indicating that the officers used excessive force, and therefore no basis on which the jury could have concluded that the defendant had a reasonable concern for her personal safety. See King, supra. There was no error.
That is, the evidence must permit a reasonable doubt that “(1) the defendant had reasonable concern for his personal safety; (2)[she] used all reasonable means to avoid physical combat; and (3) ‘the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.’ “ Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting from Commonwealth v. Franchino, 61 Mass.App.Ct. 367, 368–369 (2004)
2. Instruction on voluntary intoxication. The defendant next contends that the judge should have instructed the jury that they could consider the defendant's voluntary intoxication in assessing whether she was capable of forming the required specific intent to commit an assault and battery on a police officer. She concedes that she neither requested such an instruction nor objected to its absence, and therefore argues that the absence of the instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Lawrence, 404 Mass. 378, 395 (1989), citing Commonwealth v. Fano, 400 Mass. 296, 306 (1987). We disagree.
Assault and battery is a general intent crime. Commonwealth v. Podkowka, 445 Mass. 692, 700 (2006), citing Commonwealth v. Ford, 424 Mass. 709, 711–712 (1997). We accordingly understand the defendant's argument to pertain to the specific intent requirement of G.L. c. 265, § 13D: “The offense of assault and battery on a police officer requires a specific intent to strike a police officer; more particularly, it has two additional elements beyond those required for simple assault and battery—the officer must be engaged in the performance of his duties at the time and the defendant must know that the victim was an officer engaged in the performance of his duties.” Commonwealth v. Moore, 36 Mass.App.Ct. 455, 461 (1994) (internal citation omitted). The defendant does not contest the fact that Holmes and Nolan were police officers engaged in the performance of their duties. In addition, despite her intoxication, she would have known that they were police officers engaged in the performance of their duties because they arrived in their cruisers and were wearing their uniforms and badges. Therefore, we conclude that the absence of an instruction on voluntary intoxication did not create a substantial risk of a miscarriage of justice.
3. Instruction on specific unanimity. Finally, the defendant contends that, although she never requested an instruction on specific unanimity or objected to its absence, the judge's failure to give one created a substantial risk of a miscarriage of justice.
See Commonwealth v. Lemar, 22 Mass.App.Ct. 170, 173 (1986). She emphasizes that the judge's instructions, which repeatedly referred to “Officer Holmes or Officer Nolan” (emphasis supplied) could have confused the jury regarding the requirement of specific unanimity, since they could have disbelieved the testimony of either officer. We are not persuaded.
“Failure to request specific unanimity instructions and failure to object to their absence in the charge will result in appellate review only to determine if there is a substantial risk of a miscarriage of justice.” Commonwealth v. Erazo, 63 Mass.App.Ct. 624, 630 (2005). No substantial risk of a miscarriage of justice results from the lack of a specific unanimity instruction “if the evidence is sufficient to meet the statutory elements and withstand a directed verdict motion.” Ibid.
Here, the District Court complaint made clear that the charge pertained to an assault on both Holmes and Nolan, and uncontroverted testimony by each officer provided unequivocal evidence of an assault and battery on him. Compare Commonwealth v. LeBlanc, 3 Mass.App.Ct. 780, 780–781 (1975). It is therefore clear that the jury found that the defendant committed an assault and battery on both officers. Accordingly, no substantial risk of a miscarriage of justice resulted from the absence of a specific unanimity instruction. See Erazo, supra.
Judgment affirmed.