Opinion
13-P-281
11-23-2015
COMMONWEALTH v. TREVELL STARKS.
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
The defendant was convicted by a Superior Court jury of two counts of assault and battery on a police officer, resisting arrest, disturbing the peace, and disorderly conduct. He was acquitted of assault and battery by means of a dangerous weapon. On appeal, he contends that (1) his convictions of assault and battery on a police officer and resisting arrest should be vacated and those indictments dismissed because the police used excessive force when they arrested him; (2) trial counsel was ineffective; and (3) the judge erred by failing to instruct the jury sua sponte on the requirement of specific unanimity and by imposing a five-year term of probation on his convictions of disturbing the peace and disorderly conduct. For the reasons that follow, we affirm the judgments of conviction and conclude that the probationary sentences, which are challenged for the first time on appeal, are valid.
Facts. The jury could have found the following facts. Shortly after receiving a dispatch at approximately 8:00 P.M. on June 8, 2010, Officer Eric Smith went to the home of the defendant's grandmother, located within a housing development on Pine Grove Drive in Brockton. The dispatch was based on several 911 calls that reported a "disturbance" or "unknown emergency." When Officer Smith arrived at the apartment building, there were between ten and twenty people on the lawn. The defendant was in the crowd flailing his arms and yelling while several people, including some of his relatives, were attempting to calm him down. It appeared to Officer Smith that the defendant was having a dispute with his family. That observation was soon confirmed when the defendant pushed his grandmother, who then told Officer Smith that she wanted the defendant arrested. The argument escalated and, when Officer Smith intervened, the defendant punched him. The defendant then began to kick Officer Smith, who tried to deflect the blows as he protected his gun. Before long, the crowd became unruly and joined the defendant in punching and kicking Officer Smith, who eventually lost consciousness. At about the same time that the crowd surrounded Officer Smith, backup arrived. Ultimately, a large number of police officers and two State police troopers were at the scene. Their initial attempts to disperse the crowd were unsuccessful and at least one officer sprayed the defendant and the crowd with pepper spray. The situation became chaotic and the defendant escaped to his grandmother's apartment during the confusion. Two State troopers, Carlton Jackson and Stephen Johnson, and other officers entered the apartment. By this time, the defendant had barricaded himself in the bathroom. After announcing his presence, Trooper Jackson ordered the defendant to open the door. The defendant failed to comply and the door was forced open. Another struggle ensued. The defendant struck Trooper Jackson and continued to fight after he and Trooper Jackson fell into the bathtub. At that point, Trooper Johnson hit the defendant on the head twice with his portable radio. The defendant then surrendered and was placed under arrest.
The primary theory of the defense was that the police used excessive force and, therefore, the defendant was justified in defending himself. The defendant testified and acknowledged that his family called the police because he was arguing with his mother and grandmother. However, he maintained that he was leaving the area voluntarily when he encountered Officer Smith. According to the defendant, he spoke calmly with Officer Smith for about two minutes after which the officer grabbed his arm and sprayed him with pepper spray. He then ran into the bathroom to wash his eyes and was followed by a number of officers who, unprovoked, kicked him into the bathtub and then proceeded to punch and hit him until he was handcuffed and placed in the cruiser. Additional witnesses, including the defendant's mother and grandmother, testified for the defense and corroborated the defendant's version of events.
Discussion. 1. Excessive force. The defendant argues that the circumstances under which he was arrested were so egregious and the conduct of the police was so outrageous that principles of due process warrant dismissal of the indictments charging him with assault and battery on a police officer and resisting arrest. Although the defendant claimed at trial that the police used excessive force, he did not raise the issue of police misconduct in a motion to dismiss at any point. See Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 338-339 (2003). Assuming without deciding that the question, whether the officers violated the defendant's constitutional rights protected by the United States Constitution and the Massachusetts Declaration of Rights when, as the defendant puts it, "they forced him into a bathtub while beating him with their fists and radios," is properly before us, dismissal of the charges is not warranted. This is not a case in which "the conduct of police . . . is so outrageous or unfair that any ensuing criminal trial would debase the integrity of the judicial system" therefore warranting "the sanction of dismissal." See Commonwealth v. Montes, 49 Mass. App. Ct. 789, 793 (2000).
Although the defendant claims that both indictments charging him with assault and battery on a police officer should be dismissed, his argument focuses solely on the conduct of the police in the bathroom and not outside of the apartment building.
To begin with, as the Commonwealth correctly argues, the jury rejected the defendant's contention that the police used excessive force when they found the defendant guilty of resisting arrest. The judge instructed the jury on the right to use reasonable force to defend oneself if the force used to arrest is unnecessary or excessive. Also, while not definitive, the jury's rejection of the defendant's claim that he acted in self-defense when he fought with Trooper Jackson in the bathroom further indicates that the police conduct in question was not excessive or outrageous.
More fundamentally, our review of the evidence presented at trial supports the conclusion that no outrageous police conduct occurred here. Indeed, we conclude that the police acted reasonably under the circumstances. The defendant's assertion that Trooper Jackson should have waited for him to exit from the bathroom ignores the danger he presented by failing to obey the order to open the door. The defendant also overlooks his attack on Officer Smith and the fact that the occupant of the apartment, his grandmother, wanted him removed from the premises. Here, the facts known to the police when they forced open the bathroom door created a reasonable apprehension of danger, which in turn justified their conduct. Once the police entered the bathroom, the defendant continued to fight. At that point, the use of force to subdue the defendant was necessary. In sum, the evidence presented at trial falls short of showing police misconduct that was so egregious as to bar the defendant's convictions. See Commonwealth v. Shuman, 391 Mass. 345, 354 (1984).
The reasoning of Commonwealth v. Adams, 416 Mass. 558 (1993), upon which the defendant relies, does not support the defendant here. In that case, the Attorney General brought an action seeking injunctive relief against thirteen police officers who directly or indirectly violated the civil rights of the arrestee when they used excessive force and then failed to report the incident. An injunction precluding the officers from, among other things, using excessive force while performing their duties was imposed by a judge of the Superior Court. On appeal, the Supreme Judicial Court concluded that injunctive relief under the Massachusetts Civil Rights Act was warranted in the circumstances, which included dragging the arrestee from his car and beating him once he was on the ground. Apart from the fact that this case does not involve a civil injunction, none of the conduct in question here rises to the level of egregiousness present in Adams.
2. Ineffective assistance of counsel. The defendant claims that counsel was ineffective for failing to pursue a theory of self-defense on the charge of resisting arrest. This failing, the defendant contends, was due to trial counsel's misunderstanding of the law and deprived him of a viable defense.
To prevail on a claim of ineffective assistance of counsel, "the defendant must show that 'behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer . . . deprived [him] of an otherwise available, substantial ground of defence.'" Commonwealth v. Casey (No. 1), 442 Mass. 1, 6 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the record supports the defendant's contention that, initially, counsel did not understand that self-defense could be advanced as an affirmative defense to resisting arrest when excessive force is alleged. However, the trial judge corrected counsel's error and, as previously noted, instructed the jury that if they found the officers used excessive force, then the defendant could justifiably resist arrest under the theory of self-defense. Thus, even if the defendant has satisfied the first prong of the test under Saferian, he has not satisfied the second.
Ineffective assistance of counsel claims are properly raised in a motion for new trial. Such claims can only be resolved on direct appeal "when the factual basis of a claim appears indisputably on the trial record." Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 (2003) (citation omitted). Here, the factual basis of the ineffective assistance of counsel claim appears so "indisputably on the trial record" that it is appropriate to consider it in the defendant's appeal. See ibid.
The defendant also argues that trial counsel was ineffective for failing to request a specific unanimity instruction with respect to the charge of resisting arrest. Because, as we address below, an instruction on specific unanimity was not required, counsel was not ineffective in this regard. See Commonwealth v. Comita, 441 Mass. 86, 94-95 (2004).
3. Specific unanimity. The defendant argues that the trial judge's failure to instruct the jury on specific unanimity with respect to the indictment charging resisting arrest created a substantial risk of a miscarriage of justice. He claims there were three separate incidents upon which the jury could have relied in finding him guilty of resisting arrest. The first incident was his assault against Officer Smith. The second incident was his escape to the bathroom. The third incident was the struggle in the bathroom with the State troopers. The defendant claims that because the first and second incidents are insufficient to support a conviction of resisting arrest, the absence of a specific unanimity instruction created the risk that the defendant was convicted without unanimous agreement that he committed any crime.
"An instruction on specific unanimity is warranted 'when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.'" Commonwealth v. Shea, 467 Mass. 788, 798 (2014), quoting from Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003), overruled on other grounds by Commonwealth v. Anderson, 461 Mass. 616 (2012). "However, '[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.'" Ibid.
Here, the jury were warranted in finding beyond a reasonable doubt that a single, continuous chain of events began when Officer Smith first attempted to arrest the defendant outside of the apartment building and ended when the defendant was handcuffed in the bathroom. That the arrest started in one location and ended in another does not alter this conclusion. Nor is it significant that different officers were involved because the spatial and temporal separations between what occurred outside the apartment and in the bathroom were brief. Thus, the absence of an instruction on specific unanimity did not amount to a substantial risk of a miscarriage of justice.
4. Sentencing. On the convictions of assault and battery on a police officer the judge imposed consecutive sentences of two and one-half year terms at the house of correction. On the conviction of resisting arrest, the judge sentenced the defendant to two and one-half years at the house of correction, suspended for five years with probation supervision, to follow on and after the sentences imposed for the charges of the assault and battery on a police officer. On the remaining convictions, disorderly conduct and disturbing the peace, she imposed five-year terms of probation, each to run concurrently with the probationary term imposed on the conviction of resisting arrest. The judge imposed special conditions of probation, which required the defendant to (1) obtain a mental health evaluation and comply with any follow-up programs or counseling, (2) complete an anger management program, (3) remain drug free and submit to random drug testing, and (4) refrain from contact with the victims, other than when the victims are acting in their official capacity. The defendant was also required to pay a ninety dollar victim-witness fee and a sixty-five dollar monthly probation supervision fee.
The defendant did not challenge the probationary sentences or the conditions of probation at the sentencing hearing or before the Appellate Division. He now argues that a sentence of five years of probation for a conviction of disorderly conduct and disturbing the peace is excessive because the maximum punishment for a first time offense under G. L. c. 272, § 53(b), as amended in 2009, is a fine of $150. We disagree.
The Supreme Judicial Court raised the question "whether probation would have been a permissible disposition under the 2009 amendment where § 53(b), only provides for the imposition of a fine for a first offense of disorderly conduct" in Commonwealth v. Dotson, 462 Mass. 96, 101 n.1 (2012). After concluding that the 2009 amendment did not apply retroactively to the defendant in that case, the court declined to answer the question.
First, we are not persuaded by the defendant's argument that the sentences in question are excessive on the ground that the fees he will be required to pay over the course of the probationary period, approximately $4,000, are grossly disproportionate to the maximum fine provided by the statute. We recognize that this argument appears to have some merit. At first blush, it does not make sense that a defendant would agree to a five-year term of probation and its associated costs rather than pay a fine. Here, however, the argument is a red herring because, absent any violation of probation or other occurrences for which such fees might be suspended, the defendant will be required to pay the same fees in connection with the term of probation imposed on his conviction of resisting arrest.
Second, and more importantly, where, as here, the sentence imposed is within the permissible range of sentences and is otherwise lawful we have no authority to review the sentence. See Commonwealth v. Barros, 460 Mass. 1015, 1016 (2011) ("[W]hile appellate courts 'have the power and responsibility to correct unconstitutional or otherwise illegal sentences, we have no authority to review a sentence that is within the permissible range of sentences set by a statute for a given offense and is otherwise lawful. That is exclusively in the domain of the Appellate Division").
The imposition of probation is governed by G. L. c. 276, § 87, which provides in pertinent part as follows:
"The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant's consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty . . ." (emphasis supplied).The defendant is correct that the Legislature intended to eliminate the possibility of incarceration for a first offense of disorderly conduct or disturbing the peace when it amended § 53(b) in 2009. However, there is nothing in the amendment of § 53(b) which limits a judge's authority to impose a probationary sentence. See Commonwealth v. Zapata, 455 Mass. 530, 534 (2009) ("[W]hen the Legislature intends to bar probation, it knows how to say so explicitly"); Commonwealth v. Katsirubis, 45 Mass. App. Ct. 132, 135 (1998) ("[W]hen construing two or more statutes together, we are loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication" [quotation omitted]). Nor does the defendant point us to any cases to support his assertion that a probationary sentence is inherently more punitive than a fine of $150. Finally, we see no basis for concluding that the principal goals of probation -- "rehabilitation of the defendant and protection of the public" -- are any less applicable in cases, such as this one, where the maximum penalty for the criminal offense is a fine. Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010).
The Legislature has, in many cases, explicitly prohibited probation sentences for criminal offenses. See, e.g., G. L. c. 90, §§ 23, 24(2), 24G(a), 24L(1); G. L. c. 265, §§ 15A(a), 15B(a), 18(a), 18B, 19(a).
The defendant's reliance on Commonwealth v. Power, 420 Mass. 410 (1995), which concerns a defendant's First Amendment challenge to a special condition of probation, is inapposite.
Therefore we conclude that, in the absence of an express statutory prohibition of such an action, § 53(b), as amended, does not prohibit a judge from sentencing a defendant to probation for a first time offense.
Judgments affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 23, 2019.