COMMONWEALTH v. BAPTISTE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his convictions, after a Boston Municipal Court jury trial, of resisting arrest, G. L. c. 268, § 32B; and two counts of threatening to commit a crime, G. L. c. 275, §§ 2, 4.³ We agree with the defendant that the judge abused his discretion in (1) excluding expert medical testimony about the injuries suffered by the defendant during his arrest and (2) declining to instruct the jury on self-defense to excessive use of force by police during the arrest. We therefore conclude that the defendant is entitled to a new trial on the charge of resisting arrest. We reject, however, the defendant's argument that the evidence was insufficient on the charges of threatening; we affirm those convictions.

1. Exclusion of expert testimony. In support of his theory that police had used excessive force in arresting him, the defendant both (1) introduced records of his hospitalization immediately after his arrest, and (2) sought to have an expert in emergency medicine and internal medicine testify about the injuries documented in the records. During a voir dire, the expert stated that his testimony would explain the contents of the records, and the amount of force necessary to inflict the injuries shown in the records. The expert stated that “a significant amount of force” would have been required to cause the defendant's rib and abdominal injuries. Similarly, counsel argued that the expert would explain the nature and seriousness of the injuries and the amount of force required to cause them. The judge then ruled that, because the expert would merely “parrot what's already in” the records, he could not testify.

“A judge should not admit expert testimony unless the judge determines that the subject of the expert's testimony is one on which jurors need assistance and can be helped, and will not be confused or misled, by the expert's testimony” (quotation omitted). Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 97 (2007). We review the judge's decision for abuse of discretion or other error of law. Id. An abuse of discretion is a “clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the judge's determination that the expert would merely parrot the records did not give appropriate weight to how the expert could assist the jury in understanding them. Although many of the injuries and observations documented in the records were stated in terms comprehensible to a lay jury, others were not. Notations indicating that the defendant was “TTP throughout,” “[e]ndorses LOC,”⁴ was “GCS 14 (disoriented, converses),” and “[m]ay have rhabdo,” would not be comprehensible to a lay jury. The judge's rationale also did not give any weight to how the expert could assist the jury in understanding how much force police would have had to use to cause the defendant's injuries. The records indicated, for example, that the defendant had suffered “2 displaced cartilaginous rib fractures of anterior right rib ․ with an underlying 9 mm hypoattenuating lesion in the liver ․ which likely represents contusion.” This notation did not make self-evident the amount of force required to inflict such injuries; the expert specifically indicated that he was prepared to assist the jury in understanding that issue. We conclude that the exclusion of the expert's testimony was an abuse of discretion. That it was prejudicial becomes apparent once we consider the defendant's next claim.

2. Refusal to instruct on self-defense. Over the defendant's objection, the judge declined to instruct the jury on self-defense against excessive force as a defense to the charge of resisting arrest. In a resisting arrest case:

“A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether, taking all reasonable inferences in his favor, the prerequisites of self-defense were present, ․ to wit: (1) the defendant had a reasonable concern over his personal safety, based upon the officers' use of unreasonable or excessive force; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness” (quotations and brackets omitted).

Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 239 (2012).⁵ “The evidence bearing upon self-defense may be contained in the Commonwealth's case, the defendant's case, or the two in combination” (quotation omitted).⁶ Id. “In determining whether sufficient evidence of self-defense exists [to warrant submission to the jury], all reasonable inferences should be resolved in favor of the defendant” (quotation omitted). Id.

“[We do] not require that the arrestee act in a manner commensurate with such action as would follow detached and reasoned reflection․ Some recognition must be given to the frailty of human nature. The rule merely requires the finder of fact to determine whether the arrestee's conduct was reasonable in light of all the circumstances.”

Commonwealth v. Moreira, 388 Mass. 596, 602 (1983).

Here, taking the evidence in the light most favorable to the defendant, he was entitled to the requested instruction. Boston Police Officers Robert Robichaud and Anthony Poulos, after observing the defendant drive at high speeds through residential streets, approached him as he stood by his parked car. Robichaud said, “Jeremy, are you kidding me?” The officers then initiated the use of force, by grabbing the defendant's wrists or arms in an effort to handcuff him.⁷ As the defense argued, however, the evidence was unclear about whether the defendant knew or should have known that he was under arrest. Poulos, asked whether the defendant was aware he was under arrest when they grabbed him, answered, “We had informed him at that point that we were placing him in handcuffs.” Robichaud testified, variably, that he had told the defendant either (1) to put his hands behind his back, or (2) that they were placing him under arrest.

After the officers grabbed the defendant, he yelled, “I didn't do anything, get off me,” and pulled away from them. They maintained their grip on him and, as a result, all three fell against a nearby car and onto the ground. The officers engaged in “joint lock manipulations” to try to control the defendant. The defendant alternately pushed and pulled away, “just trying to free himself.” He did not strike Robichaud, and while he may have scratched Poulos over the ear, he never struck Poulos with a fist or the like. Robichaud, however, began “punching [the defendant] in the upper head area,” and Poulos began using “closed fist strikes,” punching the defendant in the ribs a few times. Robichaud also deployed a “knee strike.” Robichaud acknowledged that although he initially viewed the encounter as an arrest, as events unfolded he viewed it as “a fight.”⁸ Ultimately the officers pinned the defendant to the ground until backup units arrived.

The defendant was taken to a hospital. The hospital records, admitted in evidence, recounted the defendant's statement that, in an altercation with police, he had “sustained blows to head, arms, chest with fists and feet as well as being slammed onto concrete.” His complaints and symptoms included facial swelling and pain; chest pain, bruising, and tenderness; arm bruising; an elbow abrasion, back pain, and a potential “closed head injury.” Also, as noted above, he had two rib fractures and an underlying lesion on his liver. There were also the notations discussed above regarding “TTP,” “LOC,” “GCS 14 (disoriented, converses),” and “rhabdo,” which -- even without explanation by an expert -- suggested that the officers' actions had caused the defendant additional medical consequences.⁹

From this evidence, a rational jury could have concluded that the police initiated the use of force;¹⁰ that the defendant had a reasonable concern over his personal safety, based upon the officers' use of unreasonable or excessive force either at the outset or in response to his pulling away; that he used the only reasonable means available to him to avoid combat, which was to pull away from them; and that the degree of force he used was reasonable in the circumstances. In the end, “[t]he question whether the police officer[s] used excessive force and the related question, whether the defendant used reasonable force to defend himself, are questions of fact for a jury to decide, with proper instruction from the trial judge.” Commonwealth v. Graham, 62 Mass. App. Ct. 642, 652 (2004).

The refusal to give the instruction was prejudicial; we cannot say that it did not influence the jury or had but very slight effect. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Moreover, had the instruction been given, expert testimony could plainly have assisted the jury in understanding the defendant's injuries and the amount of force necessary to cause them. Thus the exclusion of that testimony was also prejudicial. The defendant is entitled to a new trial on the charge of resisting arrest.

3. Sufficiency of evidence of threatening. The defendant's convictions of two counts of threatening to commit a crime were based on evidence that, while in the hospital, he told two uniformed officers guarding him that he would shoot them. The defendant argues that there was insufficient evidence of his ability to carry out these threats, either when made or in the future, so as to “justify apprehension on the part of the recipient[s] of the threat[s]” (quotation omitted). Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001). We do not agree.

“The test is an objective one: whether the threat by its content in the circumstances was such as would cause the target of the threat to fear that the threatened crime or injury might be inflicted.” Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004). The circumstances need not support a fear that the crime might be committed immediately; it is enough if they support a fear that the crime might be committed in the future. Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005 (1985). See Commonwealth v. Milo M., 433 Mass. 149, 156 (2001).

The defendant focuses largely on the supposed lack of evidence of his ability to locate the officers in the future, after his release from the hospital, so as to be able to shoot them.¹¹ He suggests that there was no evidence that he knew their names, where they lived, or where or when they worked, and no evidence that he would be able to recognize them by sight. What this ignores is the testimony that both officers patrolled the area through which the defendant drove and in which he was arrested. One officer, asked whether he thought the defendant could carry out his threat, replied, “We see him in the street. Of course he can carry it out.” Moreover, there was evidence that the officers were among the backup personnel who had responded to the scene of the arrest, and that they subsequently spent several hours with the defendant at the hospital. From all of this evidence, the jury could infer that, once released from the hospital, the defendant would be able to find and recognize the officers in the areas that they patrolled and he frequented. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), this was sufficient.

Conclusion. On the charge of resisting arrest, the judgment is reversed and the verdict is set aside. On the charges of threatening to commit a crime and negligent operation of a motor vehicle, the judgments are affirmed.

So ordered.

Affirmed in part; reversed in part.

FOOTNOTES

3.   He was also convicted of negligent operation of a motor vehicle, G. L. c. 90, § 24, but on appeal he raises no issue as to that conviction, so we do not discuss it further.

4.   The jury might guess this notation to mean that the defendant endorsed the examining physician's suggestion that he experienced a loss of consciousness. And in closing argument, defense counsel argued that the records showed the defendant was “complaining of a loss of consciousness.” But without expert testimony, the jury could not know whether such speculation was accurate and, if so, what the significance of such findings might be.

5.   The Commonwealth contends that the instruction is not warranted unless there is evidence that the defendant did not know or have reason to know that if he stopped using force, the officers would also stop using force. But Eberle recognized no such requirement, nor did the earlier case the Commonwealth relies upon, Commonwealth v. Moreira, 388 Mass. 596 (1983). There the court said, “[O]nce the arrestee knows or reasonably should know that if he desists from using force in self-defense, the officer will cease using force, the arrestee must desist. Otherwise, he will forfeit his defense.” Id. at 602. The Commonwealth may thus defeat the defense by proving the arrestee's knowledge on this issue. See, e.g., Instruction 7.460, Supplemental Instruction 1, and Instruction 9.260, Supplemental Instruction 12, of the Criminal Model Jury Instructions for Use in the District Court (2009). But this does not necessarily imply that evidence of the arrestee's lack of knowledge is a prerequisite to obtaining the instruction. The Commonwealth makes no attempt to explain how the requirements stated in Eberle should be refined in light of Moreira. We thus do not address the issue further.

6.   Here, in declining to give the instruction, the judge stated that “there hasn't been any testimony being self-defense (inaudible) to the resisting arrest, so I'm not going to read [it]. (Inaudible.)” The gaps in the transcript leave his rationale unclear, but to the extent that it turned on the lack of defense witnesses testifying to self-defense, Eberle indicates that no such testimony is necessary. Eberle, 81 Mass. App. Ct. at 239-240.

7.   There was evidence that the defendant knew that Robichaud and Poulos were on-duty police officers.

8.   As a result of the altercation, the defendant was also charged with two counts of assault and battery on a police officer, but the judge allowed the defendant's motion for a required finding of not guilty on these charges.

9.   Robichaud and Poulos each suffered various scratches or scrapes and a swollen hand.

10.   Even where there is conflicting evidence on who was the initial aggressor, our cases demonstrate that an instruction on self-defense against excessive force may be warranted. Eberle, 81 Mass. App. Ct. at 237, 240 (evidence that defendant shoved officer); Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 447, 452 (2005) (evidence that defendant grabbed officer's wrist); Commonwealth v. Graham, 62 Mass. App. Ct. 642, 645, 649-650 (2004) (evidence that defendant lunged, and kneed and elbowed officers in ensuing struggle).

11.   He also suggests there was no evidence that he had access to a firearm. No such evidence was required. See Milo M., 433 Mass. at 154-158 (evidence was sufficient to support adjudication of delinquency for threatening to shoot teacher, despite lack of evidence that student had access to firearm).