Commonwealth v. Williams

• Decision Date: 04 February 2002
• Docket Number: 00-P-0781
• Citation: 53 Mass. App. Ct. 719
• Parties: COMMONWEALTH vs. DAMON WILLIAMS. Docket No.: 00-MASSACHUSETTS COURT OF APPEALS County: Suffolk
• Court: Appeals Court of Massachusetts

COMMONWEALTH vs DAMON WILLIAMS

Docket No.: 00-P-0781

MASSACHUSETTS COURT OF APPEALS

County: Suffolk

November 9, 2001.

February 4, 2002

Assault and Battery. Practice, Criminal, Instructions to jury, Argument by prosecutor, Argument by counsel. Self-Defense. Evidence, Self-defense. Arrest. Police, Unlawful arrest.

Indictments found and returned in the Superior Court Department on August 25, 1998.

The cases were tried before Charles F. Barrett, J.

Claudia Leis Bolgen for the defendant.

Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth.

Present: Brown, Greenberg, & McHugh, JJ.

GREENBERG, J.

On July 18, 1998, Natasha Reavis boarded a bus at the South Bay Mall in Boston. The defendant, with whom she shared a turbulent relationship, followed her onto the bus and sat down beside her. They had been quarreling, and, according to Reavis, even though she was eight months pregnant with his child, she had decided on that day to break up with him. While Reavis and the defendant sat together on the bus, an argument about her decision, fueled by mutual animosity, burst into violence. Blows were exchanged. Reavis lay bloodied on the floor, causing the driver to halt the bus and call for help. At that point, the defendant jumped off the bus. He headed back to mall, but before he got inside, Neva Grice, a uniformed Boston police officer who was called for pacification, crossed his path. Her efforts were only fleetingly successful.

There followed a second struggle between the defendant and Officer Grice. An off-duty Boston police officer, Anthony Francis, passed by in his vehicle and came to Grice's aid. After a tussle between the defendant and Francis, who was not in uniform, the defendant was subdued, placed under arrest, and indicted on numerous charges.

A Superior Court jury convicted the defendant of resisting arrest, two counts of assault and battery on a police officer, and one count of assault and battery. On appeal, the defendant argues that, with respect to the conviction of assault and battery on Francis, the judge erred in failing to deliver a requested instruction on self-defense. With respect to both convictions of assault and battery on Officers Francis and Grice, he contends that the judge should have given the jury an excessive force instruction. The defendant also claims that the judge improperly limited trial counsel's closing argument and that certain remarks made by the prosecutor during the course of her opening and closing statements to the jury were improper, entitling him to a new trial.

1. Self-defense instruction. A trial judge has broad discretion in the giving of instructions. Commonwealth v. MacDonald, 371 Mass. 600, 603 (1976). "To be entitled to an instruction about self-defense by nondeadly force, the evidence, taken in the light most favorable to the defendant, must warrant reasonable apprehension by the defendant that he (1) is in danger of personal harm; (2) can avoid that harm only by resort to force; (3) attempted to avoid physical combat or was unable to do so before resorting to force; and (4) used only the force necessary in the circumstances." Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 915-916 (2000).

Here, the judge instructed as to self-defense with respect to the charge of assault and battery on Reavis, but he refused such an instruction relative to the assaults on Officer Francis and Grice. On appeal, the defendant restricts his self-defense argument to the assault and battery charge involving Francis.

A trial judge faced with a request for an instruction is guided by the principle that a defendant is not entitled to an instruction on a hypothesis that is not supported by the evidence. Commonwealth v. Monico, 373 Mass. 298, 299 (1997). On the other hand, "if any view of the evidence would provide support for an affirmative defense, a defendant is entitled to such an instruction." Ibid.

The defendant's strategy at trial was to discredit Francis's testimony and the testimony of an eyewitness, a private security guard. By cross-examination of these witnesses -- the defendant did not testify or call any witnesses -- he attempted to show that the officers instigated the fracas that resulted in his arrest. Officer Grice, who did not recognize Officer Francis because he was in civilian clothes, testified that Francis had approached the defendant after he left the bus and a "struggle ensued between the two of them." In his brief, the defendant argues that, from this, the jury could have inferred that Francis was the aggressor, and the defendant was merely defending himself. He also highlights part of the security guard's testimony in which he said that Francis (while struggling with the defendant) put a "bear-hug" on him. Our review of the record on this point indicates that the defendant has taken this testimony out of context to embellish his argument.

On the whole, the Commonwealth's proof established that the defendant was less than compliant and continued physically to resist arrest long after it was apparent that Francis was, in fact, acting in his capacity as a police officer. Francis's uncontroverted testimony was that the defendant ran away from Officer Grice directly towards him and that he told him to "[h]old up. I'm a police officer. Chill out for a second." He testified that the defendant replied, "I don't give a fuck who you are," and tried to push past Francis. At this point, Francis grabbed the defendant, and the defendant "threw" him against a vehicle. That other witnesses did not confirm these details does not mean that Francis's testimony concerning the defendant's aggressive behavior could not be credited. In this case, the judge was correct in concluding that, drawing every inference favorable to the defendant, the state of the evidence did not justify the defendant's reliance on self-defense. There was insufficient evidence to raise the issue, if for no other reason than that the defendant appears to have done little to avoid the combat. Commonwealth v. Berry, 431 Mass. 326, 335 (2000). Commonwealth v. Alebord, 49 Mass. App. Ct. at 916. Commonwealth v. Alves, 50 Mass. App. Ct. 796, 809 (2001).

2. Excessive force instruction. The defendant's related argument is that the judge failed to instruct the jury that "where [a police] officer uses excessive or unnecessary force to subdue the arrestee, regardless of whether the arrest is lawful or unlawful, the arrestee may defend himself by employing such force as reasonably appears to be necessary." Commonwealth v. Moreira, 388 Mass. 596, 601 (1983). Those issues "are questions of fact to be resolved by the jury on proper instruction by the trial judge." Id. at 602.

The defendant's request for a Moreira-type instruction was subject to various sidebar discussions. The defendant's point was that Officer Francis had used excessive force to immobilize him because Francis mistakenly thought Officer Grice's gun had been taken during the struggle and did not know where it was, and that a crowd of seven or eight persons then pounced on the defendant. After reviewing trial notes as to the testimony with respect to the defendant's arrest, and after considering the defendant's arguments, the judge ruled that there was "no evidence to raise an issue of excessive or unnecessary force by the police." On appeal, as below, the defendant argues that Officer Grice's testimony can be read to suggest excessive force on the part of Officer Francis. Because the defendant did not present any evidence, however, the point is subject to the same infirmities as the defendant's self-defense argument.

Our reading of the record confirms the judge's view that the defendant put on a "battle royal" when the persons present, including the two officers, were trying to secure him in handcuffs, and that his continuing struggle called for the assistance of Francis. The evidence, read most favorably to the defendant,¹ suggests that he forcibly resisted arrest for a period of several minutes, first with Grice and then with Francis. The prosecution's evidence cannot be read to provide evidence of unnecessary force on the part of either officer. In these circumstances, the defendant was not entitled to the requested instruction.

3. Prosecutor's opening and closing statements. In her opening statement, the prosecutor suggested that Reavis's version of the events might be out of focus; in other words, that she might have retracted some of her account to the police because, at the time of trial, she had a vested interest in protecting her relationship with the defendant, ...