Opinion
20-P-617
03-04-2022
COMMONWEALTH v. Gawayne O. WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Gawayne O. Williams, was convicted by a jury of operating under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a ) (1) ; negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ) ; disorderly conduct, G. L. c. 272, § 53 ; resisting arrest, G. L. c. 268, § 32B ; and witness intimidation, G. L. c. 268, § 13B. He argues on appeal that there was insufficient evidence to support the convictions of disorderly conduct, resisting arrest, and witness intimidation, and that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
Background. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for our discussion of the defendant's claims. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
At approximately 2:15 A.M. on May 22, 2017, State Trooper Joseph Lamusta "was doing stationary radar enforcement" on Route 107 southbound in Saugus, when he observed two cars leave the rotary northbound on Route 107 and simultaneously "accelerate as if they were on a drag strip." The car in the left lane was a gray sedan and the car in the right lane was an older style Lexus sport utility vehicle (SUV). Believing that the cars were racing, and observing that they were traveling above the posted speed limit of fifty-five miles per hour, Trooper Lamusta turned his police cruiser around and attempted to catch up to the cars. The trooper accelerated his cruiser to a speed of one hundred miles per hour, and got within 100 to 200 yards of the cars, but he lost sight of them after they took an "S"-shaped turn over a bridge. Trooper Lamusta drove over the bridge, and after approximately one to two minutes, observed the two vehicles parked in the parking lot of a gasoline station on the same road.
Trooper Lamusta pulled his cruiser into the parking lot, and the drivers, who were outside their vehicles talking to each other at the time, began to enter their vehicles and leave. The trooper first instructed the driver of the gray sedan to stop his car and wait for him. He then drove his cruiser over to the SUV, which was now attempting to leave the parking lot, and activated his emergency lights and sirens. The SUV stopped, and Trooper Lamusta got out of his vehicle and approached the SUV on foot. The driver, later identified as the defendant, began to get out of the SUV without being instructed to do so, and the trooper promptly directed him to get back into his vehicle. After initially refusing, the defendant hesitantly got back inside the SUV.
Trooper Lamusta then approached the driver's side window, informed the defendant that he was investigating two vehicles drag racing, and asked the defendant for his license and registration. The trooper observed four people in the vehicle -- the defendant, one man, and two women -- and he detected an odor of alcohol emanating from both the front and the rear passenger compartment of the vehicle. He further noticed that the defendant's eyes were bloodshot and glassy, that the defendant spoke with a Jamaican accent, that his speech was slurred, and that an odor of alcohol emanated from his breath. The defendant provided the trooper with his license as instructed, but rather than provide his registration, he reached his hand behind his back toward his rear waist area, outside of the trooper's view. The defendant was wearing a jacket that further concealed his hand from the trooper's sight. Trooper Lamusta ordered the defendant to keep his hands where the trooper could see them, but the defendant refused to comply. After several unsuccessful directives to the defendant to remove his hand from his rear waist area, Trooper Lamusta ordered the defendant to get out of the vehicle to be pat frisked.
As the trooper approached the vehicle, the rear male passenger rolled down his window approximately four to six inches, and attempted to interrupt the trooper while he spoke to the defendant.
The defendant refused to get out of the vehicle, and held the vehicle's door closed to prevent the trooper from opening it. Eventually, the defendant got out of the vehicle, but would not cooperate with the patfrisk. To conduct the patfrisk, Trooper Lamusta attempted to lead the defendant toward the back of the vehicle and away from the male passenger, who had continuously attempted to interrupt the interaction, but the defendant physically resisted. The defendant positioned his body in a "fighting stance," and pulled away from the trooper as he tried to guide him. The defendant further began to yell to a crowd of approximately twenty people gathered around the gasoline station, asking them to record the interaction. During this struggle, the male passenger, who also appeared highly intoxicated, got out of the vehicle, "raised [his] voice," and "bear hugged" the defendant in an attempt to pull him away from the trooper. The trooper informed the defendant that, if he kept physically resisting, he would be placed under arrest for disorderly conduct. The defendant's behavior persisted, and he was placed under arrest. Still, the defendant refused to cooperate with the trooper, would not put his hands behind his back, and was "acting like he was drunk." In response, Trooper Lamusta drew and activated his Taser, but did not employ it. At that time, the defendant complied and placed his hands behind his back to be handcuffed.
Trooper Lamusta explained that the defendant had his body "bladed" such that his left shoulder was positioned towards the trooper, and his right shoulder was further away.
Following the defendant's arrest, he stated that he had just left the Squire Club in Revere. An inventory search of the defendant's vehicle revealed a half-empty bottle of Hennessy cognac on the floor of the rear passenger compartment of the vehicle. Thereafter, Trooper Lamusta transported the defendant to the police station. While at the station, the trooper administered the nine-step walk-and-turn field sobriety test and a breathalyzer test. The defendant unsuccessfully completed the nine-step walk-and-turn test, and the breathalyzer test registered the defendant's blood alcohol content at .07. The breathalyzer test results were admitted at trial by stipulation of the parties. During the booking process, the defendant told Trooper Lamusta that if "he catches [him] on the street, he's going to brap [him]," and while doing so, he raised his hands and replicated the sound of a gunshot.
The defendant also stated that the trooper should have arrested the person driving the gray vehicle because he had been the one speeding. The driver of that vehicle left the scene while Trooper Lamusta's attention was drawn to the defendant.
The defendant was charged with operating under the influence of intoxicating liquor, negligent operation of a motor vehicle, witness intimidation, disorderly conduct, resisting arrest, open container of marijuana in a motor vehicle, open container of alcohol in a motor vehicle, racing a motor vehicle, and speeding. After the Commonwealth presented its case, the defendant moved for a required finding of not guilty on all counts except operating under the influence. The judge allowed the motion on the charge of racing a motor vehicle, but denied the motion on the remaining charges. The jury found the defendant guilty of all criminal charges, and the judge found the defendant not responsible for speeding as well as both open container infractions. The defendant timely appealed.
Discussion. 1. Sufficiency of evidence. In reviewing the denial of a defendant's motion for a required finding of not guilty, we apply the familiar standard and "ask whether, viewing the evidence in the light most favorable to the Commonwealth, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Perez, 460 Mass. 683, 702 (2011), quoting Latimore, 378 Mass. at 677.
a. Disorderly conduct. To support a conviction for disorderly conduct under G. L. c. 272, § 53, the Commonwealth must prove that the defendant " ‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,’ engaged in ‘fighting or threatening, or in violent or tumultuous behavior’ or created ‘a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.’ " Commonwealth v. Accime, 476 Mass. 469, 472-473 (2017), quoting Commonwealth v. Sholley, 432 Mass. 721, 727 n.7 (2000), cert. denied, 532 U.S. 980 (2001).
The defendant argues that the Commonwealth's evidence was insufficient to support his conviction for disorderly conduct because no reasonable juror could have found that he engaged in tumultuous behavior without a legitimate purpose. The argument is without merit. To begin, we note that, in prosecuting the crime of disorderly conduct, the Commonwealth need not prove that the defendant's conduct served no legitimate purpose where it proceeds under a theory that the defendant engaged in tumultuous behavior. See Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548 (1999) ("Commonwealth need only prove that the defendant's conduct served no legitimate purpose when it claims that the defendant created a hazardous or offensive condition"). Here, the Commonwealth's evidence was sufficient to support the defendant's conviction of disorderly conduct.
" ‘Tumultuous behavior’ is conduct which may be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance." Id., quoting Commonwealth v. A Juvenile, 368 Mass. 580, 597 (1975). " ‘[T]umultuous behavior,’ for the purposes of § 53, includes the refusal to obey a police order." Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 (2009). Further, conduct that "expose[s] both the police and the public to danger by reducing the ability of police to maintain order" has been found to be tumultuous behavior. See id., and cases cited.
Here, the defendant refused to obey numerous police orders, including refusing to remove his hand from behind his back, refusing to leave the vehicle, and refusing to comply with the patfrisk. Not only did the defendant refuse to obey Trooper Lamusta's orders but he was physically resistant in doing so. The defendant yelled loudly to a crowd of people gathered around the gasoline station, and indeed, was "yelling, so much so that his rear passenger exited his vehicle," screaming about fears that the defendant would be shot, and ultimately latched on to the defendant to pull him away from the trooper. Based on this evidence, a jury could reasonably conclude that the defendant's boisterous conduct reduced Trooper Lamusta's ability to maintain order, and as a result created a "threat to public safety" sufficient to support the conviction of disorderly conduct. Marcavage, 76 Mass. App. Ct. at 38. Compare Commonwealth v. Carson, 10 Mass. App. Ct. 920, 921-922 (1980) (sufficient evidence of disorderly conduct where intoxicated defendant became belligerent when approached by police, and resisted arrest while crowd of people gathered). "[T]he mere fact that the conduct of the defendant was accompanied by speech does not preclude a conviction under G. L. c. 272, § 53." Id. at 921.
For the first time on appeal, the defendant argues that the trooper had insufficient justification to conduct a patfrisk. "Because the defendant failed to raise this issue in a pretrial motion to suppress, he has waived the argument." Commonwealth v. Brule, 98 Mass. App. Ct. 89, 91 (2020). "Where the Commonwealth was not put on notice of the need to present any evidence on this issue at trial, we must ‘decline to reach the merits of the issue raised for the first time on appeal because it depends on the development of facts not in the record before us.’ " Id., quoting Commonwealth v. Santos, 95 Mass. App. Ct. 791, 798 (2019).
b. Resisting arrest. To support a conviction for resisting arrest, the Commonwealth must prove that the defendant "knowingly prevent[ed] or attempt[ed] 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.’ " Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting G. L. c. 268, § 32B (a ).
The defendant argues that, based on the evidence presented by the Commonwealth, no reasonable juror could have found that he used or threatened to use physical force against Trooper Lamusta or that his actions otherwise created a substantial risk of bodily harm to the trooper or others. The claim is without merit and requires little discussion.
The proper focus of the resisting arrest statute is on the defendant's conduct at the time of the "effecting" of the arrest. See G. L. c. 268, § 32B (a ). "An arrest is effected when there is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intent to effect an arrest and [3] so understood by the person detained.’ " Grant, 71 Mass. App. Ct. at 208, quoting Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). That said, the defendant correctly argues that his initial physical resistance to the patfrisk cannot support his conviction for resisting arrest; at that point, it had not been objectively communicated to him that he was under arrest. See Grant, supra at 209. The defendant fails to acknowledge, however, that "his recalcitrant conduct did not end when the [trooper] informed him that he was under arrest." Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 469 (2006).
While the defendant was initially physically resisting the patfrisk, Trooper Lamusta informed him that, if his behavior continued, he would be placed under arrest for disorderly conduct. Undeterred, the defendant continued to resist and began screaming to a crowd of people. As warned, Trooper Lamusta informed the defendant that he was indeed under arrest. The defendant nevertheless continued to be uncooperative and refused to place his hands behind his back to be handcuffed. It was not until the trooper displayed and activated his Taser that the defendant complied. The defendant's conduct "represent[ed] an active, physical refusal to submit to the authority of the arresting officer[ ], and opposition to [his] efforts to effect the arrest." Maylott, 65 Mass. App. Ct. at 469. Viewed in the light most favorable to the Commonwealth, a rational jury could have found that the defendant's conduct created a substantial risk of bodily harm to the trooper or others. See Grandison, 433 Mass. at 144-145 (that "defendant would not bend his arms to allow the handcuffs to be placed on him and he managed to pull his arm away for a few seconds ... created a ‘substantial risk of causing bodily injury’ ").
c. Witness intimidation. To support a conviction for witness intimidation under G. L. c. 268, § 13B, the Commonwealth must prove "that ‘(1) the target of the alleged intimidation was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with the purpose of influencing the complainant as a witness.’ " Perez, 460 Mass. at 702, quoting Commonwealth v. Robinson, 444 Mass. 102, 109 (2005).
The defendant argues that Trooper Lamusta's testimony about his statement that he was going to "brap" the trooper was insufficient to prove that he committed the crime of witness intimidation. Couched within this argument, the defendant contends that the judge abused his discretion in limiting the defendant's cross-examination of the trooper concerning the trooper's purported misunderstanding of the defendant's use of the word "brap." We conclude both that the judge did not abuse his discretion, and that the evidence was sufficient to support the defendant's conviction for witness intimidation. We address each claim in turn.
The defendant also argues that his comment to Trooper Lamusta that his wife is an attorney and that he intended to file a complaint against the trooper was insufficient to prove witness intimidation. We need not reach this issue because the Commonwealth does not rely on these statements as the basis for the defendant's conviction of witness intimidation.
"[A] judge may limit the scope of cross-examination as long as he or she does not completely bar inquiry into a relevant subject." Commonwealth v. Williams, 456 Mass. 857, 873 (2010). "In determining whether the limitation is impermissible, ‘we weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination.’ " Commonwealth v. Mercado, 456 Mass. 198, 203 (2010), quoting Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003).
To support the theory that Trooper Lamusta misunderstood the defendant's use of the word "brap," the defendant relies largely on the following exchange during cross-examination of the trooper:
Q: "Would you agree that Mr. Williams had a thick Jamaican accent?"
A: "Yes."
Q: "But you didn't have any problem understanding him as a result of that accent?"
A: "No."
Q: "Okay. If I say give me daps, what am I doing?"
PROSECUTOR : "Objection, Your Honor."
DEFENSE COUNSEL : "That's --"
THE COURT : "That's sustained."
PROSECUTOR : "Thank you."
Q: "Isn't that what he said to you at the end of the time that he was giving you daps?"
A: "No, he said brap."
In context, it is clear that the judge did not restrict the defendant from questioning the trooper about whether he was able to understand the defendant, or whether the defendant had said something other than "brap," but sustained the Commonwealth's objection because the defendant's question, "If I say give me daps, what am I doing?" was not in proper form and lacked foundation. See Commonwealth v. Bucknam, 20 Mass. App. Ct. 121, 122 (1985) (no abuse of discretion where judge sustained objection to question due to form but did not bar all inquiry into subject of bias). There was no evidence at that point to establish what the term "dap" meant, or that the trooper knew what the term meant in order to answer the question. Contrary to the defendant's contention, the judge did not bar the defendant from pursuing the theory that he said the word "dap" rather than "brap." As a result, we discern no abuse of discretion in the judge's ruling. See Williams, 456 Mass. at 873.
Subsequently, on direct examination, the defendant testified that he had used the word "dap." He explained that a dap is a "hand greeting" that would be given to an "old friend and you haven't seen them in a long while."
The defendant further claims that the judge abused his discretion in interrupting him, sua sponte, while he was testifying on direct examination about the difference between the terms "brap" and "dap." We disagree. The judge intervened only when the defendant began testifying before a question had been posed to him. It was proper for the judge to do so, and he need not have waited for an objection from the Commonwealth. See Commonwealth v. Rivera, 441 Mass. 358, 368 (2004), quoting Commonwealth v. Campbell, 371 Mass. 40, 45 (1976) ("judge's function to act as the ‘guiding spirit and controlling mind at a trial’ ").
Further, there was sufficient evidence that the defendant intimidated Trooper Lamusta, in violation of G. L. c. 268, § 13B. "Intimidation for purposes of the statute has been defined as ‘putting a person in fear for the purpose of influencing his or her conduct.’ " Perez, 460 Mass. at 703, quoting Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). In determining whether a defendant has committed witness intimidation, "the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances." Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). As noted, Trooper Lamusta testified that, during booking, the defendant stated that "when he catches [the trooper] on the street, he's going to brap [him]," and that while making this statement, the defendant made a hand gesture and mimicked the sound of a gunshot. The trooper testified that the defendant did not explain the term "brap," but that he understood the term to mean "shooting." The trooper further testified that the defendant's statement "made [him] nervous," and "made [him] feel like [the defendant] would want to shoot [him] the next time he saw [him] on the streets." Considering the defendant's statement, as well as all the surrounding circumstances, including the defendant's hand gesture, his mimicking the sound of a gunshot, and the timing at which the statement was made, a rational jury could conclude that the defendant threatened the trooper with the purpose of influencing his conduct.
2. Prosecutor's closing argument. "A prosecutor's closing argument must be limited to the facts in evidence and the fair inferences to be drawn therefrom." Commonwealth v. West, 487 Mass. 794, 809 (2021). Prosecutors, however, "are ‘entitled to argue forcefully for the defendant's conviction based on the evidence.’ " Commonwealth v. Collazo, 481 Mass. 498, 504 (2019), quoting Commonwealth v. Lopes, 478 Mass. 593, 606 (2018). "A prosecutor's use of ‘[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole’ in a closing argument is permissible." Collazo, supra, quoting Lopes, supra at 606-607. In considering whether a prosecutor misstated evidence, we consider remarks during closing argument "in the context of the entire argument, in light of the judge's instructions to the jury, and in view of the evidence presented at trial." Commonwealth v. Chalue, 486 Mass. 847, 876 (2021). Because the defendant did not object to the prosecutor's closing argument at trial, we review his claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015).
First, the defendant argues that it was a misstatement of evidence for the prosecutor to state during closing argument: "You're also being asked to believe that this defendant was totally fine. He's saying to you, he was standing in front of Trooper Lamusta the way that he was standing sober in front of you today. That he wasn't under the influence of intoxicating liquor that night." According to the defendant, this misstated evidence because he had stipulated that his breathalyzer test registered a blood alcohol content of .07, and thus, he never argued to the jury that he had not consumed alcohol that evening.
The problem with the defendant's argument is that the prosecutor did not state that the defendant claimed not to have consumed alcohol on the evening in question. Rather, the prosecutor was referring directly to the defendant's own testimony where he stated that, after consuming three drinks that night, he was "sober" and felt just as he did while he was testifying. He claimed that, while he had consumed alcohol, he had not consumed so much alcohol such that it had diminished his ability to safely operate a vehicle. That is precisely what the prosecutor argued in closing as incredible. See Commonwealth v. Stathopoulos, 401 Mass. 453, 455 n.2 (1988) (judge's instruction that "[a] person is under the influence of intoxicating liquor if at the time of his consumption and as a result of his consumption of alcoholic beverages, his ability to operate a motor vehicle safely has been reduced" was correct). Thus, there was no error, as it was not a misstatement of evidence to make such an assertion.
Second, the defendant argues that the prosecutor misstated evidence by stating that Trooper Robert McCarthy -- a trooper who had briefly observed the defendant after he had been handcuffed -- characterized the defendant's behavior as uncooperative and combative. The Commonwealth concedes that it was a misstatement to attribute this characterization of the defendant's demeanor to Trooper McCarthy rather than Trooper Lamusta. The Commonwealth maintains, however, that this misstatement did not create a substantial risk of a miscarriage of justice because there was a basis in the evidence to characterize the defendant's behavior in this manner. We agree. There was ample testimony from Trooper Lamusta that the defendant acted uncooperatively and combatively, including refusing to get out of his vehicle, positioning himself in a fighting stance, and pulling away from the trooper as he attempted to frisk him. Moreover, the judge instructed the jury that closing arguments are not evidence and that, if in conflict, the jury's memory of the evidence controls. We presume that the jury followed these instructions. See Commonwealth v. Silva, 455 Mass. 503, 522 (2009). We discern no substantial risk of a miscarriage of justice.
Judgments affirmed.