Opinion
19-P-712
06-23-2020
COMMONWEALTH v. RUBEN ALFONSO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Ruben Alfonso, was found guilty of trespassing, resisting arrest, and disorderly conduct. He was found not guilty of threatening to commit a crime and two charges of assault and battery on a police officer. He appeals, arguing that the judge wrongly denied his request for a self-defense instruction. We affirm.
Background. The jury heard evidence from both the defendant and the arresting officers along with one civilian. The defendant's evidence was, essentially, the following. On July 29, 2018, at approximately 9:35 P.M., the defendant went to Pollo Tipico, a restaurant in Lawrence, to watch a Red Sox game. When he arrived, the defendant gave the bartender one hundred dollars to open a tab and ordered two beers. After he finished the first beer, the defendant asked the bartender to hold his hat. After he finished the second beer, the defendant started for the bathroom and a security guard waved him down. As the defendant started down some stairs to speak with the guard, the defendant slipped. The security guard caught the defendant and told him that he could not go back into the bar.
The defendant started to leave but remembered that he had not settled his tab or retrieved his hat. He went back and spoke to the guard, who told him to wait outside, and he did that. When no one came with his things, he went back to speak with the guard; the defendant agreed his voice was "rising a little bit" at that point, but, when the guard told him they would bring him his hat and his change, he went back outside.
After a couple of minutes the defendant again reentered the bar. He spoke to two security guards; one guard would not answer him, the other guard got "smart" with him. The defendant testified that his voice at that point was "pretty high" and that he told the guards and a person he believed was in charge that they were "acting like thugs" in refusing to give him his money and his hat. Again, the defendant loudly said, "I want my hat, I want my shit." He testified, "And then they started getting physical with me, putting their hands on me and then I was just pulling my hands away. I don't like when people touch me. . . . I tapped the security guard's hat and I'm like, just give me my fucking shit." When the defendant was asked to describe the volume of his voice, he said, "Really high. . . . I was complaining about the service and I was cursing everybody out because nobody was making an effort to even get my hat or my money."
When the guards told the defendant again that his property would be returned, the defendant left the restaurant and saw a police cruiser approach. According to the defendant, Officer Carlos Garcia of the Lawrence Police Department said to him, "[E]ither you leave or I take you"; the defendant responded, "Fuck off, I just want my shit."
Two other officers, Officer Carl Farrington and Sergeant Queriera, also responded. Farrington, who was dressed in his "full uniform," went into the restaurant through a side door and ended up behind the defendant with a glass door that opened inwards between the defendant and himself. As Garcia approached the defendant, Farrington grabbed the defendant's right arm from behind. The defendant testified that he did not see who grabbed him and that the person who grabbed him did not announce himself. In an effort to control the defendant, Farrington then turned the defendant away from Garcia. With the defendant turned, Garcia deployed a Taser; he hit the defendant with one prong and Farrington with the other. In pain, the defendant removed the prong and said to Garcia, "[A]re you fucking serious? I just want my shit." The defendant testified that he told the officers that he wanted his property "[l]ike, seven or eight times[,] [e]ven more." He also testified that, after he pulled out the prong, one of the officers started hitting him with a baton on the left side of his shin. The defendant said, when that happened, he moved his leg so that the baton hit the fleshy side of his leg and shouted that he just wanted his property. According to the defendant, the officer "kept hitting [him] with the baton, and started tasing [him] on the inside of [his] knee." He said that, when he fell down, the officer "kept tasering [him], and once the handcuffs were on then [the officer] stopped." The defendant estimated that by that point, he had told the officers "about 100 times" that he wanted his property back.
A Taser is a "dart-firing electrical shock device[]" (citation omitted). See Ramirez v. Commonwealth, 479 Mass. 331, 333 n.1 (2018).
The Commonwealth's evidence was substantially different. Judy Rosario, the assistant manager at the restaurant, testified that she was called to speak to the defendant, an angry patron, and explain to him why he could not go back into the bar. The defendant responded by "talking aggressively in [her] face"; she backed away and called the police. When the defendant was outside the restaurant, she tried to tell him to go home and to calm down. The police arrived and she saw the defendant struggle with them for approximately ten minutes. Rosario specifically denied that the defendant ever told her that he had left either his hat or one hundred dollars with the bartender.
Officer Garcia testified that he received a call to go to the restaurant for an unwanted guest. When he arrived, he saw a woman, who waved him down, and the defendant, who "appeared to be very agitated." The officers started to tell the defendant to leave the premises and he responded, "I'm not leaving. You're going to have to come get me, fucking cops." Garcia testified that the officers tried to reason with the defendant for ten or fifteen minutes; they asked if they could call him a taxicab and also asked him repeatedly to leave because he was causing a disturbance. As they were doing this, Garcia was standing on the ground and the defendant was standing above Garcia on the steps.
Farrington, who had approached the defendant from the side, saw a patron try to leave the restaurant through the door located behind the defendant. As the patron opened the door, the defendant turned around and "started yelling or raised his hands," causing the patron to turn around and go back into the restaurant. Garcia testified that, when Farrington approached the defendant, the defendant "turned to [Farrington], raised his arms ready to fight." According to Farrington, "It seemed like as soon as I touched that door, he swung around at me, raised his fists up and came towards me." Garcia then "deployed [his] Taser." Specifically, when Garcia pulled out the Taser, the defendant said, "Fucking tase me." According to Garcia, when he used the Taser, the defendant "immediately ripped [the prong] right off and the fight was on." When Farrington tried to grab the defendant's arms, the defendant "started throwing punches, kicking."
Both Garcia and Farrington testified to a significant struggle, with the defendant on the steps, and then down on the ground, while the defendant continued to kick. Queriera made his way up the steps from the side and, using his baton, tried to pull the defendant down. Garcia unsuccessfully attempted to secure the defendant's hand. Garcia then took out his baton and started hitting the defendant's shins.
Meanwhile, Farrington had gotten control of one of the defendant's hands and fastened a handcuff to it; he attached the adjoining handcuff to a metal railing. Using a second pair of handcuffs, the officers handcuffed the defendant's hands together in the front, while he was still handcuffed to the railing. Garcia then tased the defendant a second time -- "three dry stuns" to the defendant's right leg. The defendant then calmed down enough so that the officers could uncuff him from the railing and recuff his hands behind the back.
After the Commonwealth rested, the defendant requested a self-defense instruction on the resisting arrest charge. The judge reserved his decision and, at the close of all of the evidence, denied the defendant's request. The defendant filed a motion to reconsider, which the judge denied from the bench after hearing extensive argument. He found that the defendant had presented insufficient evidence to allow the jury to find that the defendant had used all reasonable means to avoid physical combat and insufficient evidence to allow the jury to find that the police used excessive force.
Discussion. A person resists arrest "if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest . . . by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another." G. L. c. 268, § 32B (a). Further, "[i]t shall not be a defense to a prosecution under this section that the police officer was attempting to make an arrest which was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense." G. L. c. 268, § 32B (b).
The defendant here claims that the police, in fact, used unreasonable or excessive force when they arrested him, triggering his right to use self-defense. For that reason, he contends, the judge should have given the jury a self-defense instruction as he requested. We need not decide his claim of unreasonable or excessive force, however, because, even if it were true, "in circumstances where the evidence supports a claim of excessive or unnecessary force by police," Commonwealth v. Graham, 62 Mass. App. Ct. 642, 653 (2004), the defendant is entitled to a self-defense instruction only if
"the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used [by the defendant] was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness" (emphasis added; quotations and citations omitted).Commonwealth v. Abubardar, 482 Mass. 1008, 1009-1010 (2019). See Graham, supra at 649 n.6, quoting Commonwealth v. Moreira, 388 Mass. 596, 601 (1983) ("when excessive force is used by an arresting officer and the defendant resists, 'disposition of the case depends on the application of the rules pertaining to self-defense'"). "The evidence bearing upon self-defense may be contained in the Commonwealth's case, the defendant's case, or the two in combination." Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 699 (2002). And, of course, the Commonwealth has the burden of proof; that is, the Commonwealth must disprove self-defense beyond a reasonable doubt. Commonwealth v. Williams, 450 Mass. 879, 884-885 (2008).
It is true that "[a] defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998). "If, however, the evidence was insufficient to allow a reasonable doubt to be raised, no self-defense instruction would be necessary." Id. In this case, because the defendant's trial attorney made a timely request for a self-defense instruction, we review to determine whether the failure to give the instruction was error and, if it was, whether the error was prejudicial. Graham, 62 Mass. App. Ct. at 651.
We note first that neither the defendant's evidence nor the Commonwealth's evidence, taken alone, suggests that the defendant acted in self-defense. See Commonwealth v. Vezina, 13 Mass. App. Ct. 1002 (1982) ("The defendant's contention is somewhat academic in any event, the guards having testified that the defendant struck the first blows and the defendant and his witnesses having testified that the defendant did not at any time strike a blow"). Here, according to the defendant, he did nothing at all to resist arrest, apart from moving his leg so that the officer's blows with the baton struck the fleshy part, rather than his shin. According to the police officers, after being warned he would be taken into custody if he did not leave the scene, the defendant remained in place and initiated contact with the police when they attempted to place him in custody, kicking and punching until they managed to handcuff both hands behind his back. Nonetheless, because "[t]he evidence bearing upon self-defense may be contained in the Commonwealth's case, the defendant's case, or the two in combination," Galvin, 56 Mass. App. Ct. at 699, and it would be possible for a jury to credit some combination of the two, we examine the evidence as a whole.
Even so, a careful review of all of the evidence leads us to conclude that, even taken in the light most favorable to the defendant, the evidence here simply does not suggest either that this defendant used all reasonable means to avoid physical combat, or that he acted out of a reasonable fear for his safety. As to using reasonable means to avoid physical combat, once Officer Garcia said to him, "Either you leave or I take you," the defendant was on notice that his choice was to leave or to be arrested. See Commonwealth v. Powell, 459 Mass. 572, 581 (2011) (arrest may occur even if police do not use word "arrest"). That was the defendant's initial opportunity to retreat from the upcoming struggle. The defendant's response was, "Fuck off, I just want my shit." Thereafter, because he was told that the officers intended to arrest him if he didn't leave, he knew or should have known that the officers would cease their use of force if he submitted to the arrest. See Moreira, 388 Mass. at 602 (holding that arrestee forfeits defense to resisting arrest charge where he fails to desist once he "knows or reasonably should know that if he desists from using force in self-defense, the officer will cease using force"). And even if a reasonable defendant in this situation would have had no faith that the officers actually would stop their use of force if he agreed to leave or to stop struggling, it is clear that, here, he never tried to communicate that intention. For that reason, it cannot be said that he used all reasonable means to avoid physical combat.
Further, this defendant did not testify to any concern for his personal safety, aside from the pain when he was hit by the Taser. His description of that experience was to say, "I was shot with a Taser, but it was just one of the prongs. I'm like, are you fucking serious? I just want my shit. . . . I said that to the officer that shot me with a Taser." When asked to describe his demeanor, the defendant responded, "I just want my shit." According to the defendant, he then ripped out the Taser prong and thereafter an officer began to use a baton on his leg. The defendant's testimony shows no more than anger at the lack of response he received from the restaurant employees, anger at the police response, and defensive maneuvers against the force the police used to arrest him. See Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995). In sum, the defendant's only concern throughout the incident, according to him, was for his property -- and even if his responses were merely bravado, there is nothing in this record supporting an argument that whatever he did to resist arrest -- apart from moving his leg -- was intended to prevent him from incurring further physical harm.
Nor does the Commonwealth's evidence suggest that the defendant had any concern for his personal safety; on the contrary, according to the officers, the defendant not only was unwilling to walk away but also was more than willing to struggle with three armed police officers, who were using weapons to subdue him. As noted, Garcia testified that, when he pulled out his Taser, the defendant said, "Fucking tase me."
Unlike in a number of recently reported cases, we note that the defendant here did not testify about any injury resulting from the force used to arrest him; nor did he seek medical treatment after he was taken into custody. Contrast Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 238, 240 (2012) (defendant testified that he was in excruciating pain and it felt like officers were "trying to rip his arms out of their sockets"; after arrest, defendant was transported to hospital by ambulance, medical staff determined his elbow had been dislocated, placed his arm in cast, and gave him two shots of morphine); Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 448-450 (2005) (defendant complained of severe pain throughout his body, spray used by officers caused "the worst, hottest pain in [his eyes]"; force used by police caused defendant to go to hospital for X-rays and treatment); Graham, 62 Mass. App. Ct. at 650 (defendant testified that he thought he was going to be killed; force used by police caused him to lose two teeth, suffer deep laceration on his lip, numerous bruises and abrasions, lose consciousness, and remain at hospital for three days).
In sum, on this evidence, we are satisfied that "the judge was not required to give an instruction on self-defense." Commonwealth v. Conley, 34 Mass. App. Ct. 50, 58 (1993).
Judgments affirmed.
By the Court (Green, C.J., Hanlon, & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 23, 2020.