Opinion
14-P-650
10-27-2015
COMMONWEALTH v. PATRICK MORGAN.
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 trial, the defendant appeals, arguing that his motion for a required finding of not guilty should have been allowed because there was "ample" evidence that his actions were justified as a matter of self-defense.
The Commonwealth responds, first, that the defendant's appeal is untimely and that this court is therefore without jurisdiction to address it. See Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979); Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2000). Cf. Commonwealth v. Barboza, 68 Mass. App. Ct. 180, 182-183 (2007).
"In criminal cases, a notice of appeal must be filed with the clerk of the lower court within thirty days after the entry of judgment or order, entry of the Commonwealth's notice of appeal, or imposition of sentence. Mass.R.A.P. 4(b). If a defendant requires more than the thirty days prescribed by rule 4(b), then the lower court is permitted to extend the filing period for up to thirty days (i.e., sixty days total), if the defendant makes 'a showing of excusable neglect.' Mass.R.A.P. 4(c). . . . If a defendant needs a longer extension, he may file a motion with the appellate court or a single justice requesting an enlargement of the time for filing his notice of appeal." Commonwealth v. Barboza, 68 Mass. App. Ct. at 182-183 (footnote and emphasis omitted).
On the record before us, the Commonwealth has not established the untimeliness of the appeal. The jurors returned their verdicts on April 16, 2013, finding the defendant guilty of assault and battery on a public employee and also of a lesser included offense of assault and battery on a different victim. The judge imposed sentence on the same day. The docket indicates that the defendant filed a notice of appeal on May 12, 2013; that document is numbered 143 and appears after document 142 docketed on April 23, 2013, and before document 145 docketed on May 29, 2013. Later, on July 30, 2013, trial counsel for the defendant filed a motion to file a late notice of appeal, stating in his accompanying affidavit that he "thought he had filed the notice of appeal, but when he looked in his file, he discovered he had not done so." Counsel attached to his motion a notice of appeal dated May 12, 2013. (A docket entry of August 6, 2013, shows that a judge allowed the motion [which was document 149].) The Commonwealth's brief does not acknowledge, much less explain, the May 12 docket entry (nor did the Commonwealth seek to correct the docket). See Commonwealth v. Rauseo, 50 Mass. App. Ct. 699, 702-703 (2001) (docket is prima facie evidence of facts recorded therein). On this record, we decline to dismiss the appeal.
The defendant was acquitted of other charges.
The defendant's principal brief does not address the issue at all, and he did not file a reply brief.
Turning to the merits, it is clear that the defendant's convictions must be affirmed. The charges stem from the defendant's involvement in a fight with an acquaintance and from an incident in the police station following his arrest. He makes no argument on his conviction of assault and battery, which we therefore affirm without further discussion. The defendant's brief addresses only the issue of self-defense as to the second conviction, assault and battery on a public employee.
The Commonwealth presented evidence from a Framingham police officer, Val Krishtal, who identified the defendant as a man whom he had arrested on June 18, 2010. While the officer drove the defendant to the police station, "[h]e kept on screaming, yelling, very animated, very agitated." At the police station, the defendant alternated between "being angry and animated to sad and crying." At some point during the booking process, when the officers attempted to confiscate the string from the defendant's sweatpants, so that he wouldn't hurt himself with it, the defendant "squared off" against the officers and "took a swing" at Krishtal. When another officer threatened to "taser[]" the defendant, the defendant "picked up a chair . . . and just kind of swung it . . . backwards." Krishtal "moved in and actually grabbed the chair and tossed it to the side." He then put the defendant in a "headlock" to regain control of him, while other officers came in and handcuffed the defendant to a bar that was in the booking area. At that point, Krishtal "had him and [Krishtal's] chest was on his back with [Krishtal's] arm under him until [the officers had the defendant] cuffed." As Krishtal started to let go and move away, the defendant "leaned in with his mouth open and tried to bite the side of [Krishtal's] face." When Krishtal tried to block him, Krishtal's "ring finger ended up in [the defendant's] mouth and he bit down on it." According to Krishtal, the defendant only released his finger after Krishtal punched him in the face several times.
The defendant testified that, on the day he was arrested, he spent the day at the home of the civilian victim and his wife drinking beer and "hard alcohol." In the early evening, he left with the civilian victim's wife to go to Worcester to buy crack cocaine. Afterwards, he went home to let his dog out and to "g[e]t high" with the wife. The two then went back to the first house, stopping along the way to buy alcohol. At the house, the defendant became involved in an altercation with the civilian victim and afterwards he was arrested by Officer Krishtal.
After the officers helped the defendant "out of the cruiser and brought [him] into the booking area," they became "verbally abusive" to him. He pushed back the chair he was told to sit on. Krishtal punched him in the face more than once, although he couldn't remember how many times; he received a black eye as a result. Krishtal also engaged the defendant in a "headlock," around his neck, "choking" him. The defendant described the hold as a "sleeper hold," and said that he "almost went unconscious." He couldn't breathe. He bit Krishtal's finger "[b]ecause [Krishtal] was choking [him]."
The defendant argues that this evidence compelled a finding of not guilty because the defendant was employing lawful self-defense, as there was nothing that he could have done to avoid physical contact with Krishtal. In his view "[it] is also clear from the defendant's testimony at trial, for him to avoid serious bodily injury, he had no other choice than to use the non-deadly force that was necessary to avoid such injury."
The defendant's argument ignores the fact that the question for this court is "whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original). Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979)." Commonwealth v. Penn, 472 Mass. 610, 618 (2015). The law in this area is well settled:
"[A] defendant is not privileged to use force to resist arrest in the absence of excessive force by the arresting officer. See Commonwealth v. Moreira, 388 Mass. 596, 601 (1983). In Moreira, which involved a conviction for resisting arrest, the court said that 'where the officer uses excessive or unnecessary force to subdue the arrestee, regardless of whether the arrest is lawful or unlawful, the arrestee may defend himself by employing such force as reasonably appears to be necessary.' Ibid. The question whether the police officer used excessive force and the related question, whether the defendant used reasonable force to defend himself, are questions of fact for a jury to decide, with proper instruction from the trial judge. Id. at 602" (emphasis supplied).Commonwealth v. Graham, 62 Mass. App. Ct. 642, 652 (2004). "The jury are entitled to pick and choose among conflicting versions, accepting or rejecting all or portions of the testimony as they see fit. Koonce v. Commonwealth, 412 Mass. 71, 75 (1992)." Commonwealth v. Santos, 454 Mass. 770, 777 (2009). We see no error.
The defendant does not argue that the judge's charge was not adequate.
Judgments affirmed.
By the Court (Cypher, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 27, 2015.