Opinion
No. 15–P–11.
07-27-2016
COMMONWEALTH v. Louis THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Louis Thompson, was convicted on two indictments for assault and battery upon a police officer, see G.L. c. 265, § 13D, and one indictment for resisting arrest, see G.L. c. 268, § 32B. On appeal, he contends that (1) the repeated use of the word “resisting” during direct examination of one of the Commonwealth's witnesses and during the Commonwealth's closing argument was error that created a substantial risk of a miscarriage of justice, (2) there was insufficient evidence to sustain a conviction of resisting arrest, and (3) he was entitled to certain jury instructions that were not given. For the reasons set forth below, we affirm.
Use of the word “resisting.” The defendant argues that Sergeant Pomales's repeated use of the word “resisting” during direct examination was improper opinion testimony that went to the ultimate issue in the case—whether the defendant was resisting arrest. He further argues that “[t]he effect of this damaging opinion evidence was compounded when the prosecutor reminded the jury of these statements in her closing [argument].” The defendant did not object at trial. We review for error, and if there is error, for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002).
This issue is controlled in all material respects by Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 470 (2006). As in Maylott, “the use of the word [“resisting”] in the context of this case falls under the umbrella of permissible shorthand expression” and did not amount to error. Ibid. The defendant asks us to distinguish Maylott from this case because, he argues, “[i]n Maylott the issue was whether the defendant's conduct ... constituted the use of ‘physical force’ or a ‘substantial risk of causing bodily injury’ to the arresting officers,” while here the “sole question” was whether the defendant had the requisite knowledge under the statute. The defendant conflates the Maylott court's sufficiency of the evidence analysis on the use of physical force with its separate analysis of the use of the word “resisting.” Maylott is not distinguishable as the defendant suggests. In that case there was a fact dispute as to whether the police told the defendant he was under arrest, and so the use of the term was material there as well. There was no error.
Even assuming, arguendo, that the use of the word “resisting” was error, any error did not amount to a substantial risk of a miscarriage of justice. Cf. Maylott, supra at 470 (finding similar but preserved error harmless). “The officers described the defendant's behavior in great detail. Moreover, the judge gave a ... jury instruction which explained the legal meaning of the term ‘resisting arrest’ and reminded the jury of their fact-finding role in the trial, and their obligation to apply the law to the facts.” Ibid.
Resisting arrest. The defendant contends that the trial judge erred in denying his motion for a required finding on the charge of resisting arrest because there was insufficient evidence that the defendant knew that the officers who approached him were police officers attempting to make an arrest. “[W]e review the evidence in the light most favorable to the Commonwealth to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Powell, 459 Mass. 572, 579 (2011), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). “Circumstantial evidence is sufficient to find a defendant guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence need only be reasonable and possible; [and] need not be necessary or inescapable.” Powell, supra at 579 (quotation omitted).
“In considering whether the person detained understood that he or she was under arrest, we consider not what the defendant ... thought, but what a reasonable [person], innocent of any crime, would have thought in the defendant's shoes.” Id. at 580 (quotation omitted).
The defendant had called his parole officer to determine whether the police were looking for him because of an incident that occurred between the defendant and his girl friend. The parole officer had advised the defendant to go to the police and explain the situation, but the defendant did not do so for fear of being arrested. That same day, Sergeant Pomales and Officer Buma approached the defendant's vehicle after getting out of their unmarked cruiser. Officer Buma was in plain clothes, but was wearing a carrier for his bulletproof vest, a shirt with “POLICE” written across the back, a badge on a chain around his neck, and a gun holstered on his right hip. Sergeant Pomales also wore his badge around his neck and carried his gun on his right side. Sergeant Pomales identified himself as a police officer and, with his gun drawn, said, “You know why we're here.” The defendant said, “Yes, I know.” With his gun still drawn, Sergeant Pomales then ordered the defendant out of the car. As the defendant got out of the car, Sergeant Pomales put his hand on the defendant to prevent him from running away. Officer Buma approached the defendant to place him in handcuffs. Almost immediately after getting out of the car, the defendant began flailing his arms, hit Sergeant Pomales in the chest, and pushed Officer Buma in an effort to escape. The evidence was sufficient for a rational juror to infer that the defendant knew the two men were police officers who intended to arrest him. See Powell, 459 Mass. at 580–581.
Jury instructions. a. Lesser-included. For the first time on appeal, the defendant contends that he was entitled to an instruction on assault and battery as the lesser-included crime of assault and battery of a police officer. The defendant's theory at trial was that he should be acquitted of the charge because he did not know that the two individuals were police officers trying to make an arrest. “Defense counsel's omission of a request for an instruction on the subject appears consistent with an all-or-nothing defense strategy.... The judge had no duty to undercut such a strategy by volunteering an instruction on a middle ground.” Commonwealth v. Mills, 54 Mass.App.Ct. 552, 554 (2002), and cases cited.
b. Self-defense. Also for the first time on appeal, the defendant argues that he was entitled to an instruction on self-defense. The defendant was not entitled to this instruction, as he was the initial aggressor and, further, cannot show “that he first took advantage of every opportunity to avoid the combat.” Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (quotation omitted). See Commonwealth v. Williams, 53 Mass.App.Ct. 719, 720–722 (2002).
Judgments affirmed.