Opinion
14-P-1384
10-23-2015
COMMONWEALTH v. JEREMY M. TAYLOR.
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, Jeremy M. Taylor, appeals from his conviction of resisting arrest. He raises three issues on appeal: (1) whether the evidence was sufficient to support the jury's verdict; (2) whether the judge abused his discretion in admitting a record of the defendant's use of his "CharlieCard"; and (3) whether the defendant was prejudiced as a result of incorrectly identifying one of the charges against him as a criminal violation when, in fact, it was a civil infraction. For the reasons that follow, we affirm.
Background. The essential facts are not in dispute. On May 16, 2012, around 12:20 P.M., MBTA police Officer Lisa Murawski-Dupont, was patrolling the JFK MBTA station. Her duties consisted of ensuring passenger safety and that customers pay their fares. She was in full police uniform while conducting her patrol by bicycle. The only way to enter the station on the street level is to pass through automated fare gates, which require customers to swipe a CharlieCard or insert a paper ticket. Officer Murawski-Dupont was monitoring passenger traffic on the street level and observed the defendant pass through the gate behind a paying customer without paying his fare. She asked the defendant to go back and to pay the fare. The defendant looked at her and responded, "Who the fuck are you?" She told him that she was a police officer, to which the defendant said, "I don't care, get out of my face." She then asked the defendant for identification, which he refused to provide.
Officer Murawski-Dupont asked the defendant for his ticket, and he handed her a CharlieCard. The MBTA's fare system allows employees to use fare machines to retrieve the payment history for each CharlieCard. Officer Murawski-Dupont had previously made use of this feature to resolve disputes with customers over whether they had paid their fare. As she attempted to run the history of the card, the defendant stated that he did not intend to wait, and tried to leave the station. Officer Murawski-Dupont informed him that fare evasion followed by the failure to give identification is a criminal and arrestable offense. The defendant kept walking toward the street outside. Officer Murawski-Dupont followed him and twice informed him that he was under arrest and to stop. The defendant responded by turning around and telling her to "get the 'F' out of [t]here." He then walked out of the station toward Columbia Road. The defendant crossed a major roadway, causing cars to "abruptly stop" to avoid hitting him or Officer Murawski-Dupont.
MBTA police Officer Lawrence Clark responded to a call for backup. He observed the defendant "weaving on and off" the sidewalk trying to avoid Officer Murawski-Dupont. There was a steady flow of traffic, with drivers attempting to avoid the scene. The defendant continued yelling, arguing, and swearing at both officers who informed him that he was under arrest. The defendant was "ranting and raving with his body, his arms," and continued yelling until the officers were able to place him under arrest. Officer Murawski-Dupont's account of the facts was bolstered by video surveillance that was viewed by the jury.
Discussion. 1. Sufficiency of the evidence. We apply the familiar Latimore test. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant argues that the evidence offered by the Commonwealth was insufficient to establish the required fourth element of resisting arrest, namely, that the defendant heard Officer Murawski-Dupont tell him that he was under arrest. "An arrest is effected where there is an 'actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.'" Commonwealth v. Quintos Q., 457 Mass. 107, 109 (2010), quoting from Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). We apply an objective test: "[W]hat a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes." Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 127 (2008), quoting from Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982), rev'd on other grounds, 463 U.S. 239 (1983). The evidence indicates that after explaining that fare evasion was an arrestable offense, Officer Murawski-Dupont followed the defendant out of the MBTA station and twice told him to that he was under arrest and to stop. The evidence also indicates that after she addressed the defendant, he turned to her and stated, "[G]et the 'F' out of here." Under the circumstances, a reasonable person in the defendant's position would not believe that he was merely walking away from an investigative stop. Contrast Commonwealth v. Grant, 71 Mass. App. Ct. 205, 209 (2008) (neither words nor actions of officers prior to, or during, pursuit objectively communicated to defendant their intention to arrest him).
2. Admission of documentary evidence. The defendant maintains that the judge erred in admitting testimony and the fare history report regarding his MBTA CharlieCard. However, as the Commonwealth points out, the testimony regarding the history of the defendant's CharlieCard was relevant to establish the defendant's motive for fleeing officers after being told multiple times that he was under arrest. The admissibility of the fare history report for the defendant's CharlieCard is not affected by the fact that it included only two entries; the officer was concerned only with whether or not the defendant paid the fare on the day in question. The evidentiary value of the fare history report is that the Charliecard had no indication of usage on the day of the defendant's arrest. The test of relevance does not require that a single item of evidence conclusively prove the fact it is offered to establish. "A brick is not a wall." 1 McCormick on Evidence § 185, at 1000 (7th ed. 2013). See Mass. G. Evid. § 402 (2015).
3. Mischaracterization of fare evasion as a criminal violation. The defendant argues that he was prejudiced because at the outset of his trial, the jury were informed that he was charged with two criminal offenses, resisting arrest and fare evasion. The prosecutor also addressed both charges in her opening statement. However, during the testimony of the first witness, the judge explained to counsel, outside the presence of the jury, that the statute under which the defendant was charged with fare evasion, G. L. c. 159, § 101, establishes a civil infraction. The mistake was corrected when the judge instructed members of the jury at the close of the case that they were called upon to determine whether the Commonwealth had proved one criminal charge against the defendant, resisting arrest.
The defendant did not object to the judge's instructions at the close of the case and does not now raise any such objection. Instead, the defendant makes the hollow argument that he was prejudiced because the jury was led to believe that his actions merited an additional criminal charge. However, the defendant's act of fare evasion was the factual predicate for the criminal charge of resisting arrest. It was thus unavoidable that the jury would hear evidence of the defendant's conduct in not paying his fare. Furthermore, both defense counsel and the prosecutor informed the jury in closing statements that the judge would instruct them on the one criminal charge of resisting arrest. In these circumstances, the defendant's argument is without merit.
Judgment affirmed.
By the Court (Katzmann, Vuono & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 23, 2015.