State v. Burkinshaw

• Decision Date: 22 March 2022
• Docket Number: 2019-153-C.A.,N3,19-34A
• Citation: 271 A.3d 580
• Parties: STATE v. Michael BURKINSHAW.
• Court: Rhode Island Supreme Court

271 A.3d 580

STATE

v.Michael BURKINSHAW.

No. 2019-153-C.A.

N3

19-34A

Supreme Court of Rhode Island.

March 22, 2022

Owen Murphy, Department of Attorney General, for State.

Michael G. Ewart, Office of the Public Defender, for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Long, for the Court.

The defendant, Michael Burkinshaw (defendant or Mr. Burkinshaw), appeals from a Superior Court judgment of conviction and commitment for one count of resisting arrest. Mr. Burkinshaw assigns the following three errors with respect to the trial proceedings: (1) The trial justice committed reversible error by failing to instruct the jury on a defense to the charge of resisting arrest; (2) the trial justice committed reversible error by failing to pass the case following the state's inclusion of certain remarks in its opening statement; and (3) the trial justice committed prejudicial error by refusing to allow a certain line of questioning on cross-examination of the arresting officer. For the reasons stated herein, we affirm the judgment of the Superior Court.

Facts and Procedural History

On July 2, 2018, Michael Burkinshaw was arrested in Newport, Rhode Island, and charged with three misdemeanors: disorderly conduct, resisting arrest, and vandalism. Ultimately, the disorderly conduct and vandalism charges were dismissed. However, the state proceeded against Mr. Burkinshaw on the charge of resisting arrest, which culminated in a jury trial in the Superior Court.

Prior to trial, Mr. Burkinshaw challenged the admissibility of his prior contacts with the police. The trial justice granted defendant's motion in limine on this evidentiary matter. Nevertheless, in its opening statement, the state referenced the arresting officer's familiarity with Mr. Burkinshaw. Defense counsel moved to pass the case, arguing that the state had prejudicially alluded to Mr. Burkinshaw's prior contacts with the police, in violation of the trial justice's ruling on his motion in limine . The trial justice denied the motion to pass and offered a cautionary instruction.

After the trial justice denied the motion to pass, the trial proceeded. Central to the state's case at trial—and to this appeal—are the circumstances surrounding the arrest for which Mr. Burkinshaw was charged with resisting. The following testimony was elicited at trial. On July 2, 2018, at around 12:30 p.m., a patrol officer of the Newport Police Department, Officer David Turmel, was dispatched to 76 Broadway in Newport, near the Paramount Apartments, to manage "an unwanted party." As Officer Turmel arrived in the area in his police cruiser, he approached and was able to identify Mr. Burkinshaw near an establishment called "Scratch Restaurant." From Officer Turmel's perspective, Mr. Burkinshaw was "[a]ngry, animated, waving his arms and pointing, swearing, extremely vulgar." More specifically, he observed Mr. Burkinshaw directing vulgarities toward a woman, pointing, cursing, and using extremely vulgar language. Officer Turmel testified that there were several families with children around, so he "told [Mr. Burkinshaw] specifically there are several children around, please stop using that language. Let's walk over here and talk about why I was dispatched."

According to Officer Turmel, Mr. Burkinshaw continued "nonstop cursing, waving his arms, pointing, [using] just extremely vulgar language[,]" and he ignored Officer Turmel's request to move away from the area. Officer Turmel told Mr. Burkinshaw to move away from the area four or five more times before placing his hands on Mr. Burkinshaw to escort him away from the Scratch Restaurant area. Officer Turmel testified that Mr. Burkinshaw then pulled his arms away from Officer Turmel, telling the officer not to touch him and saying he would leave on his own. Officer Turmel acknowledged on cross-examination that, at the time of this first physical contact, Mr. Burkinshaw was not under arrest.

Despite Mr. Burkinshaw saying he would leave the area on his own, he did not. Officer Turmel then told him, "[Y]ou can leave on your own right now or you're going to be arrested." After again stating that he would leave on his own, Mr. Burkinshaw still did not leave but "continued to stand there and point, curse, be extremely vulgar and just act[ ] in kind of a violent manner." According to Officer Turmel's testimony on direct examination, it was only at that point that he announced that Mr. Burkinshaw was under arrest and started to "forcefully escort[ ] him away from the families and children[.]" On cross-examination, Officer Turmel conceded that he forcibly grabbed Mr. Burkinshaw's arm while moving him away. Counsel for Mr. Burkinshaw also elicited further testimony from Officer Turmel that, at a prior hearing, the officer had testified that he had placed two hands on Mr. Burkinshaw, one at the shoulder and one at the rib, and had "pushed" Mr. Burkinshaw, either simultaneous with the announcement of his arrest or immediately before.

Officer Turmel testified that, at the time of this second physical contact, which occurred as he informed Mr. Burkinshaw that he was under arrest, Mr. Burkinshaw again "flailed his arms" and "aggressively" attempted to make his way back toward the restaurant. Officer Turmel testified that he tripped Mr. Burkinshaw to bring him to the ground and effectuate the arrest. Officer Turmel recounted that Mr. Burkinshaw then placed his arms underneath his own body so that his arms could not be restrained behind him by the officer.¹ Because of this, Officer Turmel could not immediately place Mr. Burkinshaw in handcuffs, but waited until another officer arrived to do so.

The trial justice disallowed cross-examination of Officer Turmel on one matter: the disability status of Mr. Burkinshaw at the time of his arrest. Specifically, defense counsel sought to cross-examine Officer Turmel on the existence of Mr. Burkinshaw's disability by using a police report to refresh Officer Turmel's recollection on the issue. The trial justice rejected counsel's arguments and denied defense counsel, on grounds of relevance, hearsay, and prejudice, his attempt to establish through the police report that Mr. Burkinshaw was disabled.

The state rested after the testimony of Officer Turmel. Mr. Burkinshaw moved for judgment of acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure, which the trial justice denied. Thereafter, Mr. Burkinshaw rested and renewed the motion for judgment of acquittal. The trial justice denied the renewed motion and proceeded to instruct the jury.

Relevant to this appeal, the trial justice instructed the jury as follows regarding the use of force: "And it is well established that in making an arrest, an officer has the right to use the amount of force that is reasonably necessary in order to properly perform his duty." Defense counsel objected to this instruction, arguing that it would have been appropriate to further instruct that a defendant has a right to defend himself if there is evidence of excessive force, because, according to defense counsel,

"a defendant has the right to use some amount of force to resist an arrest where an officer is using unreasonable force, * * * that is a question for the jury, the reasonableness of the force of the officer. It's a fact that the jury should be required to find. If they do find that it is unreasonable, then they further should be able to find whether or not the defendant's conduct in resisting the arrest was reasonable and justified. They weren't given that instruction, although they were advised that an officer may only use reasonable force, they weren't advised what to do if they do find that unreasonable force was applied[.]"

The trial justice noted the objection but, citing State v. Hurteau , 810 A.2d 222 (R.I. 2002), concluded that Mr. Burkinshaw was not entitled to the further instruction because there had been no evidence to indicate that the arresting officer had used excessive force against Mr. Burkinshaw.

After closing arguments and deliberations, the jury returned a guilty verdict. The trial justice subsequently sentenced Mr. Burkinshaw to one year of incarceration at the Adult Correctional Institutions, with forty-five days to serve and 320 days suspended, with one year of probation. A judgment of conviction and commitment entered on April 30, 2019. Mr. Burkinshaw timely appealed. Further facts will be supplied as they are germane to the errors assigned on appeal.

Discussion

Mr. Burkinshaw specifies three errors committed by the trial justice. First, he maintains that the trial justice committed reversible error by failing to instruct the jury on a defense to the charge of resisting arrest. Second, he maintains that the trial justice committed reversible error by failing to pass the case despite the state's inclusion of certain prejudicial remarks in its opening statement. Finally, he challenges the trial justice's decision to limit the scope of cross-examination of Officer Turmel, resulting in the exclusion of evidence on Mr. Burkinshaw's disability status. We address each argument in turn.

Jury Instructions on Defense to Resisting Arrest

This Court reviews jury instructions de novo . E.g. , State v. Isom , 251 A.3d 1, 6 (R.I. 2021). We examine the instructions in their entirety and will not view a challenged portion in isolation from the context of the instructions as a whole; in doing so, we seek to "ascertain the manner in which a jury of ordinary intelligent lay people would have understood them." Id. (quoting State v. Ros , 973 A.2d 1148, 1166 (R.I. 2009) ). Where a trial justice determines that an instruction related to self-defense is not applicable, this Court conducts an independent review of the record and assesses "whether the trial justice's concept on self-defense was correct." State v. Soler , 140 A.3d 755, 759 (R.I. 2016) (brackets omitted) (quoting State v. Pineda , 13 A.3d 623, 631 (R.I. 2011) ). We...