Opinion
15-P-795
01-10-2017
COMMONWEALTH v. Philamena M. THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted defendant Philamena M. Thompson of disorderly conduct and resisting arrest. On appeal she claims that the judge should have instructed the jury on self-defense even though the instruction was not requested. She also argues that the judge erred when she denied her motion for new trial based on a claim of ineffective assistance of counsel. We affirm.
Background . We summarize the relevant facts that the jury could have found. While working an extra detail for the Chicopee Housing Authority, Chicopee police Captain Stephen Muise noticed gasoline leaking from a parked vehicle. Based on the size of the leak and the amount of gasoline pooled under the vehicle, Captain Muise decided that the vehicle presented a fire hazard and should be towed. He determined that the vehicle was registered to the defendant, with whom Captain Muise was familiar.
Captain Muise had previous contact with the defendant when he investigated her earlier complaint that her car had been improperly towed by the Chicopee police. As a result of that contact he knew that she had injuries to her back and shoulder. He also believed that she was "psychologically" handicapped.
Captain Muise immediately contacted the defendant at her apartment and explained the situation. After Captain Muise showed her the leak in her gas tank, the defendant returned to her apartment for her vehicle keys and, upon returning to the vehicle, announced that she was going to move the vehicle. Captain Muise explained that he could not let her drive the vehicle because it presented a safety hazard. The defendant insisted that she was going to take her vehicle to a mechanic. She unlocked the driver's door and tried to enter the vehicle through that door. When Captain Muise placed his hand on the door and repeated that he could not permit the defendant to drive the vehicle, she lowered her shoulder and ran into Captain Muise. After Captain Muise explained that he would have to arrest the defendant if she attempted to move the vehicle, she began screaming that the police had punctured her gas tank because she had previously filed a complaint against them. Several neighbors gathered to see what was causing the commotion.
The defendant ran around the vehicle, entered the vehicle through the passenger door, climbed into the driver's seat, and attempted to put her keys in the ignition. When Captain Muise placed his hand over the ignition, the defendant attempted to slap it away. Captain Muise then informed the defendant that she was under arrest. The defendant "jumped out" of the vehicle and ran toward her apartment. Captain Muise pursued and caught her at the door to her apartment building. Further struggle ensued as Captain Muise pinned the defendant against a rail outside the apartment door and tried to place her in handcuffs. She was subdued and handcuffed when other officers arrived shortly thereafter.
It is undisputed that the defendant knew that Captain Muise was a police officer.
Discussion . 1. Instruction on self-defense . The defendant argues that the judge erred in failing to instruct the jury on self-defense. Because trial counsel did not request the instruction, we review to determine whether there was error, and if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Hakkila 42 Mass. App. Ct. 129, 130 (1997). "A defendant is entitled to a self-defense instruction when the evidence, viewed in the light most favorable to [her], sufficiently raises the issue." Ibid . A person has no right to resist lawful arrest unless the restraining "officer uses excessive or unnecessary force." Commonwealth v. McMurtry , 20 Mass. App. Ct. 629, 632 (1985). Here, we need not decide whether Captain Muise used more force than was reasonable as he attempted to place the defendant in handcuffs. Even if the evidence supported such a theory, the judge was not required, sua sponte, to instruct the jury on self-defense when the defendant did not advance that theory at trial. Hakkila , supra at 130-131. The defendant did not testify that she was defending herself. Indeed, she did not testify to using any force against Captain Muise. Trial counsel did not suggest, either in his opening statement or closing argument, that the defendant acted in self-defense. Rather, he argued that the defendant did not resist arrest, but was simply "trying to cooperate or comply with the officer." In these circumstances, a self-defense instruction was not required.
In her affidavit submitted in support of her motion for new trial, the defendant denies striking the officer or even intentionally placing her hands on him.
2. Motion for new trial . In a motion for new trial, the defendant claimed that her trial counsel was constitutionally ineffective because he (a) failed to introduce her medical records, (b) failed to call a witness, and (c) failed to make an effective closing argument. We review a judge's decision to allow or to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace , 397 Mass. 303, 307 (1986). We extend special deference to the motion judge where, as in this case, she was also the trial judge. See ibid . "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Comita , 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian , 366 Mass. 89, 96-97 (1974). The defendant has failed to meet that burden here.
First, the defendant's preexisting physical problems were not disputed. Trial counsel elicited from the defendant that she suffered from osteoarthritis in her knees and that she was undergoing therapy for a strained left arm. The jury also heard during the defendant's direct examination that she told Captain Muise that he was hurting her by pulling on her arm. Captain Muise testified that he was aware, from a previous encounter with the defendant, that she had back and shoulder injuries. In these circumstances, where the medical records would have been cumulative of the undisputed testimony, the failure to offer them in evidence did not deprive the defendant of a substantial ground of defense.
Second, we are not persuaded that trial counsel was ineffective in failing to call Veronica Santos, who witnessed the incident. Trial counsel requested that Santos be served with a subpoena to appear at trial. He also attempted, without success, to have an investigator speak with Santos before trial. When Santos did not appear as ordered, trial counsel decided to proceed without requesting a continuance or a capias for her appearance. Although Santos stated in her posttrial affidavit that she had witnessed the arrest and that the defendant never struck the officer, the record does not reflect that trial counsel knew that on the day of trial. Trial counsel knew, however, that he would call two other eyewitnesses to contradict, at least in part, Captain Muise's account of the arrest. In these circumstances, where there was uncertainty as to the content of Santos's testimony and two other eyewitnesses did testify about the confrontation, we discern no abuse of discretion in the judge's implicit conclusion that the decision not to seek a capias was a reasonable strategic choice.
Finally, the defendant claims that trial counsel's closing argument was constitutionally ineffective. More specifically, in the motion for new trial the defendant argued that (1) in the closing the charges were misstated and (2) the closing was devoid of legal argument, offering the jury no basis for acquittal. While it is true that at one point trial counsel mistakenly referred to a charge of disturbing the peace rather than resisting arrest, in light of all the evidence and the judge's instructions, we see no danger that the jury was led astray by that inadvertent misstatement.
Moreover, trial counsel did offer the jury a basis for acquittal by pointing out that they would have to determine which version of events was more credible, the one offered by Captain Muise, or that of the defendant and two disinterested eyewitnesses. He told the jury that they would have to decide whether the defendant was "resisting or was ... she just trying to cooperate or comply with the officer." Although the argument might have been framed differently or delivered more forcefully, the defendant has failed to show that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield , 373 Mass. 109, 115 (1977). For all of those reasons, we discern no error of law or abuse of discretion in the denial of the motion for new trial.
The defendant suggests for the first time in her reply brief that the judge erred in failing to hold an evidentiary hearing on the motion for new trial. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001). We do not reach the issue because "[a]n argument raised for the first time in a reply brief is not properly before us, and we do not consider it here." Katz, Nannis & Solomon, P.C. v. Levine , 473 Mass. 784, 795 n.15 (2016).
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Judgments affirmed.
Order denying motion for new trial affirmed.