Commonwealth v. Kelley

• Decision Date: 24 June 2016
• Docket Number: No. 15–P–1040.,15–P–1040.
• Citation: 89 Mass.App.Ct. 1129,54 N.E.3d 605 (Table)
• Parties: COMMONWEALTH v. Kenneth KELLEY.
• Court: Appeals Court of Massachusetts

89 Mass.App.Ct. 1129

54 N.E.3d 605 (Table)

COMMONWEALTH

v.Kenneth KELLEY.

No. 15–P–1040.

Appeals Court of Massachusetts.

June 24, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of resisting arrest and assault.¹ On appeal, he challenges (1) the sufficiency of the evidence, (2) the jury instructions, (3) the Commonwealth's closing argument, and (4) the consistency of the verdicts. We affirm.

Background. We summarize the facts in the light most favorable to the prosecution. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979)

. On the evening of December 1, 2012, Brookline police Officers Andrew Amendola and Russell O'Neill were conducting surveillance at 52 Village Way in Brookline. At approximately 11:00 P.M., Officer O'Neill observed the defendant exit a PT Cruiser parked in front of 52 Village Way and enter the dwelling. Fifteen minutes later, a Honda Accord arrived and the driver parked behind the PT Cruiser. Kori Kelley, the defendant's brother,² exited 52 Village Way, opened the rear passenger door of the PT Cruiser and retrieved an item. He then walked to the Honda Accord and entered the front passenger seat.

Based on this observation, Officer O'Neill approached the Honda Accord. As the vehicle began to pull away, Officer O'Neill yelled, “Police,” three times and displayed his badge. The driver of the vehicle stopped, and the officers removed Kori from the vehicle and attempted to perform a patfrisk search of his person. As they did so, Kori fled on foot. As he pursued Kori, Officer O'Neill yelled, “Stop, police.” The officers caught Kori shortly thereafter on a walkway between 70 Pearl Street and 55 Village Way. Officer O'Neill wrapped his arms around Kori and they both fell to the ground. Kori struggled and attempted to escape. Officer Amendola attempted to place handcuffs on Kori. Officer O'Neill continued to yell, “Stop, police,” and ordered Kori to stop resisting.

Approximately three to five seconds after Officer O'Neill yelled, “Stop, police,” the defendant and Deavaughn Dardy, a codefendant, appeared, followed by five others.³ One of them yelled, “Get the fuck off of him.” The officers instructed the men to get back. However, the defendant and Dardy continued to approach with their fists clenched and their arms extended in an aggressive manner. The defendant stated, “Get the fuck off of my brother.” The men approached to within three feet of the officers. Officer Amendola stood up, drew his firearm, and ordered the men to the ground. The defendant and Dardy did not immediately comply. Before getting on the ground, one of them said, “Get the fuck off of him.” Once the men were all on the ground, Kori was placed under arrest.

Discussion. Sufficiency of the evidence. The defendant did not move for required findings of not guilty on the assault and resisting arrest charges.⁴ Therefore, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Doty, 88 Mass.App.Ct. 195, 198 (2015)

.

The defendant argues that the evidence was not sufficient to prove the intent element of assault. “Under the common law, an assault may be accomplished in one of two ways—either by an attempted battery, or by putting another in fear of an immediately threatened battery.” Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000)

. Because the Commonwealth proceeded on the theory of a threatened battery, it was required to prove “that the defendant engaged in ‘objectively menacing’ conduct with the intent to put the victim in fear of immediate bodily harm.” Id. at 248, quoting from Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 524 n. 7 (1995), S.C., 421 Mass. 610 (1996). “[I]t is well established ... that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault.” Commonwealth v. Delgado, 367 Mass. 432, 437 (1975). “In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). Here, despite being ordered by the police to “get back,” the defendant approached the officers aggressively with his fists clenched and his arms held in “a fighting stance,” yelling “[g]et the fuck off of my brother.” From this objectively menacing conduct, the jury could have reasonably inferred beyond a reasonable doubt an intent to place the officers in fear of immediate harm.

The charge of resisting arrest requires the Commonwealth to prove that the defendant knowingly prevented or attempted to prevent a police officer, acting under color of his official authority, from effecting an arrest of another by using or threatening to use physical force or violence against the police officer. G.L. c. 268, § 32B

. There was evidence that the defendant appeared three to five seconds after Officer O'Neill identified himself to Kori as a police officer in a loud voice. The officers, although in plain clothes, wore badges, radios, handcuffs, and firearms that were visible during the arrest of Kori. As the defendant approached, Officer O'Neill was attempting to place Kori in handcuffs. From this evidence, the jury could have drawn a reasonable inference that the defendant knew the men struggling with his brother were police officers. Further, the evidence of the defendant's objectively menacing conduct and his statement “[g]et the fuck off of my brother” was sufficient to establish a threat to use physical force or violence against the officers.⁵ This evidence was sufficient to prove beyond a reasonable doubt the elements of resisting arrest.

Jury instructions. Where, as here, “the defendant did not object to the jury instruction[s] at trial, we review his claim[s] to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice.” Commonwealth v. Marinho, 464 Mass. 115, 122 (2013)

. “We evaluate the [challenged] jury instructions as a whole and interpret them as would a reasonable juror.” Ibid.

The defendant first claims that the trial judge erred in failing to instruct the jury on self-defense or defense of others.⁶ “It is the rule that where the issue of self-defense has been sufficiently raised by the evidence, the defendant is entitled to an instruction which places on the Commonwealth the burden of disproving the factor of self-defense beyond a reasonable doubt.” Commonwealth v. Maguire, 375 Mass. 768, 772 (1978)

. However, “such an instruction need not be given where there was insufficient evidence to support a theory of self-defense.” Ibid. Here, even drawing all reasonable inferences in favor of the defendant, the prerequisite of self-defense was not present. See Commonwealth v. Graham, 62 Mass.App.Ct. 642, 651 (2004). There was no evidence that the defendant ever had “a reasonable concern over his personal safety.” Commonwealth v. Franchino, 61 Mass.App.Ct. 367, 369 (2004), quoting from Commonwealth v. Baseler, 419 Mass. 500, 502–503 (1995).

Because we conclude the evidence was sufficient to establish that the defendant knew the men struggling with his brother were police officers, he was not entitled to an instruction on defense of others. See Commonwealth v. Montes, 49 Mass.App.Ct. 789, 792 (2000)

. The judge gave the proper instructions for defense of others when excessive force is used. See Instruction 7.460 of the Criminal Model Jury Instructions for Use in District Court (2009) (Model Instructions). We discern no error.

The judge instructed the jury that a threatened battery required general intent, not specific intent. The Commonwealth concedes this was error.⁷ See Musgrave, 38 Mass.App.Ct. at 524 n. 6

. “In evaluating whether an error created a substantial risk of a miscarriage of justice, we determine whether the error ‘materially influenced’ the guilty verdict.” Commonwealth v. Cowans, 52 Mass.App.Ct. 811, 819–820 (2001), quoting from Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here, the judge properly instructed the jury twice on the charge of assault that the “Commonwealth must prove beyond a reasonable doubt that the defendant intended to put the alleged victim in fear of an immediate battery.” See Instruction 6.120 of the Model Instructions. In light of these instructions and the strength of the evidence summarized above, we see no substantial risk that justice miscarried .⁸

Commonwealth's closing argument. The defendant claims the prosecutor misstated the law and the facts in closing argument. Since the defendant raised no objection at trial, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978)

. We review the challenged arguments “in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.’ “ Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).

First, we are not persuaded that the prosecutor misstated the law regarding assault.⁹ Contrary to the defendant's assertion, there is no knowledge requirement for assault. See G.L. c....