COMMONWEALTH v. DIXON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Billy T. Dixon, was charged with resisting arrest, G. L. c. 268, § 32B, assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), and assault and battery on a police officer, G. L. c. 265, § 13D. After a bench trial, a District Court judge found the defendant not guilty of assault and battery with a dangerous weapon, but guilty of resisting arrest and assault and battery on a police officer. On appeal, he contends that the evidence was insufficient to support his convictions and that the judge failed to instruct himself on self-defense. We affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the judge could have found the following facts. On November 19, 2015, at approximately 12:48 a.m., Officers Eric Huard and Michael Tetreault of the Fall River Police Department, in uniform and in a marked cruiser, responded to a noise complaint at 49 Whipple Street, Apartment 3, in Fall River. Upon arrival, Huard was invited into the second-floor apartment, where he heard loud music and footsteps from the apartment above. Huard then knocked on the door of the third-floor apartment, announcing that he was a police officer and wanted to discuss a noise complaint. An elderly woman's voice (that of the defendant's grandmother, Betty Davis-Dixon) responded “okay,” but she said she needed to move some boxes from behind the door to open it. For the next few minutes, Huard heard the sound of boxes being slid across the floor. After the sounds stopped, Huard knocked on the door again; Davis-Dixon responded that Huard needed to wait because she was still moving boxes. Huard then heard the sounds resume. After the noise stopped again, he knocked a third time and did not receive a response. Huard then asked Davis-Dixon “if she was okay, if she was in distress, and she said that she was.” Huard then heard the sound of someone whispering. He asked again if she was in distress, and she said, “[Y]es, I am in distress.”

Meanwhile, Tetreault had gone to the other side of the house where he spoke to Sean “Trahern” Combs and Billie Jean Davis, the defendant's parents. Tetreault radioed Huard that he was speaking with the apparent owners of the third-floor apartment. Stating that her elderly mother lived in that apartment and had medical issues, Davis offered to get the door open. Davis repeatedly rang the buzzer for the third-floor apartment and then went to the door, knocked, and asked Davis-Dixon to open the door. Davis-Dixon said that she would open the door, but did not.

Finally, after Huard threatened to kick the door open, Davis-Dixon partially opened it. She looked confused, took a step back, and did not say anything. Huard pushed the door open more and took a step inside. He saw the defendant standing behind the door. The defendant “slammed the door into [Huard] three times trying to push it closed,” striking Huard's left shoulder and arm. Huard then pushed the door open and saw that the defendant's hand in the front pocket of his sweatshirt. Huard repeatedly ordered the defendant to remove his hand from his pocket, but the defendant did not comply. Fearing that the defendant was armed, Huard drew his gun and repeated the order. When the defendant removed his hand, Huard could see that the defendant was holding a cell phone; he holstered his gun. Huard then grabbed the defendant's arm and told him that “he was under arrest.” The defendant started screaming and yelling and tried to pull away from Huard; “he was pulling away, and he pulled [Huard] into the kitchen.” They struggled for twenty to thirty seconds. Huard then pointed his stun gun at the defendant and ordered him to the floor; the defendant finally complied.

Discussion. 1. Sufficiency of evidence. The defendant argues that the evidence was insufficient to support his convictions. We review whether the evidence “in the light most favorable to the prosecution,” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

a. Resisting arrest. The defendant contends that his conviction for resisting arrest must be vacated because the Commonwealth failed to prove that he knew he was under arrest or that he used force sufficient to create a substantial risk of bodily injury to Huard. In the defendant's view of the evidence, “[a]t best, what occurred, by Huard's own account, was that he and the other officers, while conducting a threshold inquiry for a civil complaint, took out their tasers and forcibly subdued Dixon in an effort to stop him from recording [them].”

“[T]he crime [of resisting arrest] is committed, if at all, at the time of the ‘effecting’ of an arrest.” Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting G. L. c. 268, § 32B.² “An arrest occurs where there is [1] ‘an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.’ ” Grandison, supra, quoting Commonwealth v. Cook, 419 Mass. 192, 198 (1994). We apply an objective test to determine whether the defendant understood the officer's intent to arrest him. See Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).

The evidence was sufficient. Huard was in uniform. As he attempted to enter the apartment, the defendant slammed the door into him three times. After entering the apartment and establishing the defendant was unarmed, Huard initiated an arrest for assault and battery with a dangerous weapon (the door). Huard told the defendant he was under arrest and grabbed the defendant's arm. Based on this evidence, a rational trier of fact could find that Huard was in the process of effecting an arrest and that “a reasonable person in the defendant's circumstances would have so understood.” Grant, 71 Mass. App. Ct. at 208.

After Huard told the defendant he was under arrest and grabbed the defendant's arm, the defendant “pulled” and “pushed” away from Huard. The struggle lasted twenty to thirty seconds. This evidence was sufficient to prove that the defendant's conduct created a substantial risk of causing physical injury to Huard. See Grandison, 433 Mass. at 145; Commonwealth v. Lender, 66 Mass. App. Ct. 303, 305-306 (2006).

b. Assault and battery on a police officer. The defendant also contends that the evidence was insufficient to support his conviction for assault and battery on a police officer. Assault and battery is defined as “ ‘the intentional and unjustified use of force upon the person of another, however slight’ ․ or the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another” (citation omitted). Commonwealth v. Correia, 50 Mass. App. Ct. 455, 456 (2000). For assault and battery on a police officer, this offense must be committed on a public employee who was engaged in the performance of his duty at the time. See G. L. c. 265, § 13D. Evidence that the defendant slammed the door three times on the uniformed police officer as he was entering the apartment is sufficient to prove the crime charged.

Failing to acknowledge this evidence, the defendant contends that conviction was based on his conduct of pulling away from the officer after Huard got through the door. We need not decide whether that conduct amounts to assault and battery, because it was not the basis for the conviction. At the conclusion of the case, the judge announced his findings: “I am satisfied beyond a reasonable doubt that [the defendant] did slam the door at Officer Huard because he didn't like the fact that Officer Huard wanted to come check further on -- his grandmother. I'm not satisfied that he used it as a dangerous weapon, so I'm going to acquit him of Count II, but I am going to find him guilty under Count III, assault and battery on a police officer.” It is clear to us that the judge found the defendant guilty of assault and battery on a police officer based on the defendant's conduct of slamming the door on the officer's body.

2. Self-defense instruction. The defendant also argues that he was entitled to a self-defense instruction and the judge erred by failing to instruct himself on self-defense. As the defendant did not raise the issue of self-defense at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

“A defendant is entitled to a self-defense instruction if, taking all reasonable inferences in favor of the defendant,” Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004), the evidence satisfies the three legal requirements underlying the defense: (1) that the defendant “had a reasonable concern over his personal safety, (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” (citation and quotation omitted). Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 369 (2004). In circumstances involving police officers, however, an individual is justified in using force in self-defense only if “the officer uses excessive or unnecessary force.” Commonwealth v. Francis, 24 Mass. App. Ct. 576, 579 (1987). The Commonwealth bears the burden of demonstrating that the police officer did not use excessive force, or, if excessive force was used, that the defendant did not properly act in self-defense. See Graham, 62 Mass. App. Ct. at 654 n.7.

Even assuming that the evidence warranted an instruction on self-defense with respect to the charge of resisting arrest,³ we discern no risk of a miscarriage of justice. “In a bench trial, we start by assuming that the judge has ‘correctly instructed himself as to the manner in which the evidence is to be considered in his role as factfinder.’ ” Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 451 (2005), quoting Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). See Commonwealth v. Graziano, 96 Mass. App. Ct. 601, 608 (2019). “But the assumption fades where the record indicates otherwise.” Urkiel, supra.

Nothing in the record indicates that the judge did not properly instruct himself. Defense counsel argued that the defendant held his hands up in the air and offered no resistance whatsoever. The judge found otherwise: “I am satisfied beyond a reasonable doubt that [the defendant] did pull away and struggle with the officer and resisted his attempts to place him under arrest. There were lots of opportunities on both sides to de-escalate the situation that weren't taken. But, nevertheless, I am satisfied beyond a reasonable doubt.” The judge's findings do not indicate that he misunderstood or misapplied the law, or that he ignored a substantial claim of self-defense.

Judgments affirmed.

FOOTNOTES

2.   General Laws c. 268, § 32B (a), provides as follows:“A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, 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.”

3.   The evidence did not raise a viable claim of self-defense with respect to Huard's initial entry. Huard testified that he was just entering the apartment when the defendant slammed the door on him. According to the defense witnesses, the defendant was nowhere near the front door.