Commonwealth v. Asher
| Decision Date | 09 June 2015 |
| Docket Number | SJC–11663. |
| Citation | 31 N.E.3d 1055,471 Mass. 580 |
| Parties | COMMONWEALTH v. Jeffrey ASHER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Andrew J. Gambaccini, Worcester, for the defendant.
Elizabeth Dunphy Farris, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, with her) for the Commonwealth.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
BOTSFORD
, J.
This case concerns the beating of an unarmed civilian by the defendant Jeffrey Asher, a police officer who responded to another officer's request for assistance with a traffic stop in Springfield. The defendant was charged with assault and battery by means of a dangerous weapon in violation of G.L. c. 265, § 15A (b )
, and assault and battery in violation of
. At trial, the defendant contended, and presented evidence seeking to show, that the beating was justified based on the need for self-defense and defense of others present. The jury found him guilty of both charges. We affirm the convictions.
Background. 1. Facts. Based on the evidence presented at trial, the jury could have found the following. On the evening of November 27, 2009, Officer Michael Sedergren and Lieutenant John Bobianski of the Springfield police department were on patrol in a cruiser when they observed a black Honda Civic automobile dragging its muffler and causing sparks to fly behind it. The officers stopped the vehicle, and Bobianski spoke to the driver, Malika Barnett. While Bobianski was speaking to Barnett, Sedergren observed Barnett's companion, Melvin Jones, who was the sole passenger in the vehicle (and the victim in this case), slide toward the floor in the right front passenger's seat and stuff something in his waistband. Concerned that the victim could be hiding a weapon or other contraband, Sedergren requested assistance over the police radio from Officer Theodore Truoiolo and the defendant, who were together on patrol that night in a separate vehicle.
Once Truoiolo and the defendant arrived, all four officers approached the Honda, with two officers on each side of the vehicle.1 Truoiolo and Sedergren went to the passenger's side and asked the victim to step out of the vehicle so that they could conduct a patfrisk of him. The victim complied. At the officers' instruction, the victim moved to the rear of the vehicle and placed his hands on the trunk. Truoiolo then began patting the victim's outer garments to check for weapons. When Truoiolo reached the victim's front right pants pocket, Truoiolo felt a hard object no bigger than his palm.2 Truoiolo squeezed the object and yanked the victim toward himself; as he did so, the victim threw his elbow and forearm into Truoiolo's chest and tried to run away.
Sedergren caught the victim around the neck about five feet from the vehicle, but the victim continued to try to run, and the two men ended up against the side of the hood of the second police cruiser. Truoiolo then grabbed hold of the victim's collar
and right shoulder, while Sedergren had the victim in a “choke hold type maneuver” and was on top of the victim's back. At this point, the victim was bent forward over the hood of the police cruiser, with his head facing the windshield and his legs spread apart. The defendant, having seen the victim try to run, went over to the cruiser where the victim was lying spread eagle. The defendant was unable to see the victim's hands, but in response to a statement of Sedergren's, the defendant began to hit the victim repeatedly around his head with a flashlight.3 Although not all of the blows hit the victim's head, the defendant swung the flashlight at the victim fourteen or more times. At least three strikes made contact with the victim's head and upper body.
The victim continued to move after the first strikes to his head. The officers were shouting commands such as, “don't move” and, “give us your hands,” but they did not state that the victim was under arrest. Eventually, Truoiolo cuffed the victim's right hand but could not reach the victim's left hand because of where Sedergren was positioned. The defendant, realizing that many of his blows were hitting the hood of the cruiser rather than the victim's upper body, moved down and delivered three hard blows with the flashlight to the victim's upper leg. Then, in response to another statement from Sedergren, the defendant hit the victim behind his left knee.4 Following that blow, the victim fell to the ground with the officers on top of him.
The defendant continued to hit the victim as he was lying still on the ground, this time around the victim's upper body and his feet. Eventually, the officers rolled the victim to the side while he lay on the ground and finished handcuffing him, and then Truoiolo reached into the
victim's pocket and pulled out the hard object that he had felt earlier, a small bag that was determined to contain “crack” cocaine and marijuana. The victim had no weapons on his person, and no weapons were found in the vehicle.
The victim was taken by ambulance to Baystate Medical Center. The right side of his face was deformed from swelling and bruising, and he suffered fractures of his orbital socket and nose. The victim was also diagnosed with a choroidal rupture, an eye injury resulting from blunt force trauma to the head
and causing loss of vision in his right eye. At the time of trial, in February, 2012, the victim continued to experience vision loss.
Two persons in a house across the street from where the officers stopped the vehicle noticed the incident developing and recorded much of it on a video camera. The recording, which includes both audio and video, was admitted as an exhibit at trial.
2. Procedural history. On October 14, 2010, a complaint issued from the Holyoke Division of the District Court Department, charging the defendant with assault and battery by means of a dangerous weapon and assault and battery. Several months later, the defendant filed a notice stating that he would raise as defenses (1) self-defense, (2) defense of another, and (3) “[d]efense of a law enforcement officer's right to use force reasonably necessary to effect an arrest, overcome physical resistance and/or prevent escape.” See Mass. R. Crim. P. 14(b)(3)
, as appearing in 442 Mass. 1518 (2004). Thereafter, approximately three months before trial, the defendant filed an expert witness report of Dr. Frank Gallo, director of the master of science in policing program at Western New England University, that the defendant claimed supported a conclusion that the defendant's use of force against the victim was reasonable.5 The Commonwealth responded to the notice of defenses and to the expert witness report by filing a motion in limine to exclude any defense based on the reasonable force necessary to effect an arrest.6 In response, in two subsequent pretrial hearings regarding Gallo's proposed testimony, the
defendant's trial counsel stated repeatedly that reasonable force to effect an arrest was not the legal theory on which the defendant was relying and on which Gallo's testimony would be based. Rather, counsel asserted that the defendant's theory of the case, reflected in Gallo's testimony (see note 5, supra ), was that the defendant used force to effect a Terry -type stop and a patfrisk of the victim, see Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)
, and that, ultimately, the force used was reasonably necessary for self-defense and defense of others, and also based on a police officer's training to escalate the use of force in response to a deadly threat, such as a suspect obtaining an officer's gun.7 The Commonwealth indicated that if the defendant was not asserting that he used reasonable force to effect an arrest, then the Commonwealth's motion in limine to exclude evidence of this defense was moot. The trial judge does not appear to have ruled on the motion in limine to exclude, but she did rule preliminarily that Gallo would be allowed to testify at trial.
The defendant was tried before a jury in February, 2012. Despite the trial judge's preliminary ruling concerning Gallo, the defendant did not call Gallo as a trial witness. At the close of the evidence, the defendant submitted a request for jury instructions that included repeated reference to the defendant's status as a police officer, to a police officer's right to use force in making an
arrest, and to the fact that a person who is being arrested by a police officer may not use force to resist arrest. The defendant also proposed instructions on self-defense and defense of another that mirrored in most respects the District Court's model jury instructions on these defenses, and that included the duty to exhaust all other options, including retreat, before resorting to force. See Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009), at 1–5, 17 (Instruction 9.260). In connection with each of the defendant's proposed instructions, including the instruction on self-defense, the defendant sought a statement regarding his status as a police officer.
At the charge conference, the judge indicated initially that she would instruct the jury on the definition of arrest and on police privilege in some form, although not using the defendant's proposed language. The judge later presented both counsel with a proposed instruction stating that “[b]ecause of the nature of the job, a police officer is permitted to use force in carrying out his official duties if such force is necessary and reasonable,” and that a civilian who is arrested by a police officer must submit to the arrest, but a police officer may not use “excessive or unnecessary force” to make an arrest.8 The defendant indicated his satisfaction with this instruction. The Commonwealth, however, objected to it on the grounds, among others, that it was essentially an instruction on resisting arrest, a defense the...
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TABLE OF CASES
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