Opinion
11-P-773
04-25-2012
COMMONWEALTH v. WARREN SHAVE, JR. (and two companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The codefendants appeal from their convictions on various charges, arising from a physical altercation that occurred after Brockton police Officer Francisco Lopez appeared at their home to inquire about a motor vehicle accident involving a vehicle registered in the name of codefendant Warren Shave, Sr. (Senior). We affirm the convictions, addressing the codefendants' various claims of error in turn.
For convenience, we shall refer to codefendant Warren Shave, Jr., as Junior.
1. Sufficiency of the evidence. Contrary to Junior's contention, the evidence at trial sufficiently supported his convictions on the charges of assault and battery of a police officer and of interfering with a police officer. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and as summarized on page sixteen of the Commonwealth's brief, the evidence established that Junior touched Officer Lopez without his consent, and without any right or excuse for doing so. Junior's argument that his use of force against Officer Lopez was justified, in defense of another (specifically, Senior), rests on a view of the evidence in a light favorable to Junior, and the jury were entitled to take a different view. 2. 'Castle law' instruction. We need not decide whether Junior is correct in his contention that Officer Lopez was unlawfully present in the apartment, see Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 342 (2003), because Junior is not entitled to relief even if we assume that the judge erred in denying Junior's request for instruction under G. L. c. 278, § 8A (the so-called 'castle law'). When it applies, the castle law relieves a party, otherwise justified in the use of force in self-defense or defense of another, of the duty to retreat (if possible) before resorting to the use of force. See, e.g., Commonwealth v. Peloquin, 437 Mass. 204, 208 (2002). On the evidence in the present case, however, at the time Officer Lopez began using excessive force against Senior (thereby justifying Junior's defensive intervention), the larger Officer Lopez was engaged in close combat with the smaller Senior, and had pushed him up against a wall. There was no view of the evidence on which the jury could have concluded that Senior had an available avenue of retreat, as an alternative to Junior's use of defensive force against Officer Lopez. Accordingly, Junior suffered no prejudice from the failure of the trial judge to instruct in accordance with the castle law.
The same evidence, together with Officer Lopez's testimony that he was on duty, in uniform, and investigating a motor vehicle accident in the official performance of his duties, sufficiently supported Junior's conviction on the charge of interfering with a police officer in the performance of his duties.
We are unpersuaded by the Commonwealth's contention that the evidence did not fairly raise a question for the jury concerning whether the use of force by Officer Lopez against Senior posed a risk of death or serious bodily injury; indeed Senior sustained a broken jaw, apparently as the result of blows landed by the officer. The Commonwealth's separate contention (based on the testimony of Edna Shave) that Junior did not exert force in defense of his father until after the altercation had spilled out to the hallway ignores Officer Lopez's testimony to the effect that Junior joined the fray while Officer Lopez, Junior, and Senior were all still in the apartment.
We note that the trial judge correctly instructed the jury on the general law of self-defense and defense of others.
3. Closing argument. There is no merit to Junior's claim that the prosecutor engaged in improper argument in his closing, for substantially the reasons explained at pages twenty-two to twenty-five of the Commonwealth's brief. The comments of the prosecutor forming the basis of Junior's claim either find direct support in the evidence or are fair inferences from the evidence. Moreover, the claimed improprieties did not bear on any significant issue at trial, and therefore (even if improper) would not give rise to a substantial risk of a miscarriage of justice.
4. Vagueness. There is likewise no merit to Junior's contention that the common-law offense of interfering with a police officer is void for vagueness. Particularly in the circumstances of this case, Junior cannot plausibly claim that he had no reasonable basis to comprehend that his actions could be viewed as intimidating, hindering, or interrupting an officer engaged in the lawful performance of his duty. As the Commonwealth observes, Junior's actions were in fact designed to interfere, and did interfere directly with Officer Lopez's attempts to investigate a report of a motor vehicle accident and to interview Senior in furtherance of that investigation.
5. Inconsistent verdicts. Senior's claim that his conviction on the charge of resisting arrest is inconsistent with his acquittal on the charges of assault and battery by means of a dangerous weapon and assault and battery on a police officer is controlled by Commonwealth v. Gonzalez, 452 Mass. 142, 150-151 (2008). Any inconsistency between the verdicts against Senior is factual rather than legal. See id. at 151.
6. Rebuttal witness. Finally, we discern no abuse of discretion by the trial judge in his decision to allow the Commonwealth to call Daniel Vaughn to rebut testimony given by Edna Shave denying that she kicked a knife out of view in an effort to hide it. See Commonwealth v. Roberts, 433 Mass. 45, 51 (2000). There was no error, and accordingly no substantial risk of a miscarriage of justice.
Though counsel for Edna Shave objected to the rebuttal witness, counsel for Senior and counsel for Junior did not.
Judgments affirmed.
By the Court (Cohen, Green & Graham, JJ.),