Opinion
14-P-1411
07-28-2015
COMMONWEALTH v. LARRY LOEW.
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
The defendant, Larry Loew, appeals from his convictions of assault and battery on a police officer, in violation of G. L. c. 265, § 13D, and resisting arrest, in violation of G. L. c. 268, § 32B. The case was tried to a jury. The defendant represented himself with the assistance of stand-by counsel.
Background. The jury could have found the following facts. On August 3, 2009, several weeks before the incident that gave rise to the criminal charges that are the subject of this appeal, there was an incident involving the defendant and the Revere police. The defendant had rented the property located at 6 Nahant Avenue to three tenants who found the apartment, sight unseen, through the Internet site "Craigslist" while they were in Phoenix, Arizona. Upon arrival, they were so dissatisfied with the condition of the apartment that they telephoned the Revere police department. Responding Officer Caramanica spoke with the defendant, who was residing nearby, but the defendant refused to identify himself, and the conversation became hostile. Lieutenant Ruggiero responded to a telephone call from the defendant complaining about Officer Caramanica's presence and decided that it was sufficient to obtain one of the defendant's business cards in order to permit Caramanica to identify the defendant and complete his report.
On August 31, 2009, at approximately 6:00 P.M., Officer Mark Desimone responded to another telephone call made by two of the apartment's tenants. He was in uniform and driving a marked police cruiser. He had no knowledge of the events of August 3. The tenants were in the process of moving out on the last night of their one-month tenancy. They told Officer Desimone that after taking one load of their belongings to their new apartment in Medford, they returned to Revere and found that the defendant had changed the locks on their apartment. Officer Desimone walked with the tenants a short distance to where the defendant was staying. That building was described as "like a storefront type of building that was being converted." It was located across the street from the property where Officer Caramanica and Lieutenant Ruggiero had contacted the defendant on August 3. Officer Desimone knocked on the door "a few times" and was greeted by the defendant, who was "agitated." The defendant agreed that the tenants had a right to access the apartment until midnight and that he had changed the locks. The defendant would not give the tenants a key, but agreed to walk over to the apartment and unlock it. On the walk over the defendant spoke "in a vulgar tirade" and was calling the two women names. Desimone told him to "quiet down." Officer Desimone once again requested that the defendant provide the tenants with a key to the apartment in order for them to complete their move, but the defendant refused without giving a reason. Desimone knew the neighborhood was "a horrible area, one of our worst areas in the city," and was concerned that the tenants' property would be stolen. Because Officer Desimone concluded that he would have to write a police report and inform his superiors of these events, he asked the defendant for identification. The defendant told him to "get lost." Officer Desimone radioed for backup. However, after an exchange of words between the defendant and Desimone, the defendant agreed to go back to the storefront and get his identification.
As Officer Desimone stood in the doorway of that building, the defendant made a sudden move and tried to shove Desimone, slamming the door on his arm and leg. Unable to shut the door entirely, the defendant kept slamming it on him. Eventually, Officer Desimone was able to get hold of one of the defendant's hands, gain entry, place one handcuff on the defendant, and radio for help. The defendant used his free arm to grab an exposed beam and remained in this position until backup arrived. While they waited, the defendant was screaming and spit multiple times on Officer Desimone's face and uniform.
Discussion. 1. Jury instructions. During the charge conference, the judge declined to give the defendant's requested instruction based on the so-called "castle doctrine," see G. L. c. 278, § 8A. In the circumstances of this case, the defendant had no right to use any degree of force to resist an arrest. See Commonwealth v. Moreira, 388 Mass. 596, 601 (1983). Even if we assume that the storefront at 640 Beach Street was the defendant's "dwelling," see Commonwealth v. Albert, 391 Mass. 853, 862 (1984), there was no evidence of excessive or unnecessary force by the police. Officer Desimone's testimony was that the defendant was the aggressor throughout the incident as he slammed the door on the officer's arm before Desimone made any contact with the defendant. The defendant did not contradict this testimony, but instead testified that he shut the door on the officer by accident. See Commonwealth v. Peterson, 53 Mass. App. Ct. 388, 390-391 (2001). See also Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792 (2000); Commonwealth v. Graham, 62 Mass. App. Ct. 642, 653-654 (2004).
General Laws c. 278, § 8A, inserted by St. 1981, c. 696, states that "[i]n the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling."
It should be noted that the judge did give the defendant the benefit of an instruction to which he was not entitled. See Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 339-343 (2003). The judge instructed the jury that if Officer Desimone was a trespasser the defendant would have the right to use reasonable force to remove him from the defendant's property if after being requested to leave the officer refused to do so. (Tr. IV: 52-54). The defendant indicated that he was satisfied with it. See Commonwealth v. Urkiel, 63 Mass. App. Ct. 445,447-448 (2005) (defendant had no right to self-defense instruction based on unlawful police entry even where Commonwealth conceded that entry was unlawful).
2. Sufficiency of the evidence. For the first time on appeal, the defendant claims that Officer Desimone was not acting under color of his official authority as required for purposes of the crime of resisting arrest. See G. L. c. 268, § 32B. The jury heard testimony that Officer Desimone was called to the scene by the defendant's tenants in his capacity as a Revere police officer. See Montes, 49 Mass. App. Ct. at 793. The evidence was sufficient.
3. Prior bad act evidence. At the outset of the trial, the clerk mistakenly read a dismissed charge of disorderly conduct, and the judge repeated to the jury that the complaint also charged the defendant with disorderly conduct. The judge subsequently corrected the error. Additionally, the defendant asserts that the trial judge erred in allowing prior bad act evidence in the form of Officer Desimone's testimony regarding certain "vulgar" statements that the defendant made on his way back to get the keys to the apartment. While the relevance, if any, of this evidence was marginal at best, our review of the record leads us to conclude that there was no substantial risk of a miscarriage of justice. The defendant himself testified that during the walk back to his building, the tenants made vulgar remarks about his religion and ethnicity. See, e.g., Commonwealth v. Bishop, 461 Mass. 586, 596 (2012).
4. Denial of witness capiases. On the first day of trial, before jury empanelment, the defendant answered ready and failed to alert the judge to any problems with securing the presence of any witnesses. On the second day of trial, the defendant informed the judge that he wanted to call a witness to testify whom he had not previously disclosed. The defendant did not identify the witness or make an offer of proof as to why the testimony of that witness would be relevant. Under the circumstances, the judge was under no duty to compel the attendance of the witness, and there is no substantial risk of a miscarriage of justice. See Commonwealth v. Dyer, 460 Mass. 728, 743-744 (2011), cert. denied, 132 S. Ct. 2693 (2012).
Later that same day, following the defendant's testimony, he informed the judge that he wanted to call as a witness a Revere police captain who would testify that the defendant had filed complaints with the police following the August 3, 2009, incident. The defendant said that he had summonsed the captain but that the captain had not appeared. The judge did not abuse his discretion in declining to issue a capias in view of the fact that he had previously allowed the defendant to introduce the two citizen complaints to which the captain's testimony would have been relevant. See Commonwealth v. Brown, 449 Mass. 747, 769-770 (2007).
5. Prosecutor's opening statement. In the Commonwealth's opening, the prosecutor inappropriately made reference to a statement made by the defendant during his police booking that he had "full-blown AIDS." The defendant did not object. During the trial, the defendant made numerous references to the fact that he is HIV positive -- in his opening statement; during his direct testimony when he said, "I told you at the beginning of this case that I am HIV positive, correct?" and mentioned the need for medications associated with HIV; and in his closing argument. Given its brief mention by the Commonwealth, and in light of the number of times it was brought up by the defendant, there was no substantial risk of a miscarriage of justice.
6. Totality of preserved and unpreserved claims. For the reasons set out above, there is no merit to the defendant's claim of cumulative error warranting reversal. See Commonwealth v. Dingle, 73 Mass. App. Ct. 274, 286 (2008).
Judgments affirmed.
By the Court (Trainor, Agnes & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: July 28, 2015.