Commonwealth v. Robinson
83 Mass. App. Ct. 419 (2013)
The defendant appealed from his
conviction for resisting arrest based on the denial of his motion for funds
under G.L. c. 261, § 27C. The defendant
was arrested following a traffic stop where he was a passenger in a car whose
driver had a suspended license. A frisk
revealed a knife and seventeen bags of marijuana in a fanny pack that had been
hidden in the defendant’s pants. During
the arrest, the defendant kicked an officer and broke the police cruiser’s
windows with his feet. The defendant’s
ex parte motion for funds for an investigator to locate witnesses was initially
denied, but was granted by a different District Court judge following a
significant delay that occurred at the defendant’s request.
On appeal, the defendant claims
that the initial denial of funds hindered his ability to build a defense,
particularly with the identification of eyewitnesses. G.L. c. 261, § 27C provides that the court
not deny a request for funds if it finds the service or object is reasonably
necessary to assure the applicant would have the same opportunities were he not
indigent. Not being advised of the need
to use an interlocutory appeal from such a conclusion, the issue is merely
whether the defendant has otherwise adequately preserved this issue (the motion
for funds) at trial. The defense made no
argument that the troopers failed to document the names of witnesses that
prevented the defendant from calling one or more of them in his defense, nor
did he make the trial judge aware of the potential G.L. c. 261, §27C issue. Additionally, the defense provided no proof
that earlier efforts to uncover eyewitnesses would have been more successful,
because there was no explanation of what efforts the investigator made and why
he had failed. As a result, the Court
concluded that the matter had not been adequately preserved and affirmed the
conviction.
Second, the defendant argued
that the judge erred by failing to instruct the trial court jury on his right
to defend himself from excessive or unnecessary police force. However, the Appeals Court concluded that the
defendant is unable to point to any trial evidence that would lead a reasonable
jury to conclude that the defendant’s acts were a result of such force, as
public embarrassment is not a recognized legal defense to resisting arrest. Accordingly, the Appeals Court found the
trial court judge did not err in instructing the jury.
Lastly, the defendant filed a
motion to suppress arguing that the exit order and frisk were invalid. However, the lower court held, and the
Appeals Court agreed, that the exit order and frisk were justified by the
officer’s objectively reasonable safety concerns due to the defendant’s prior
behavior and the limited number of officers on the scene. Commonwealth
v. Obiora, 83 Mass. App. Ct. 55 (2013). On appeal, the defendant proposed that even if
the exit order and frisk were valid, that the officer had to frisk the fanny
pack for weapons before opening it.
Notwithstanding the fact that the defendant failed to raise this
argument in the trial court, therefore waiving his right to present it on
appeal, the Appeals Court provided dicta on the issue. The Appeals Court commented that the
defendant was correct in stating the general rule that certain pliable
containers be frisked prior to being opened to check for weapons, but that this
general rule must applied reasonably in the interest of safety to the officers
and the public. Thus, the motion to
suppress was properly denied.
Written 7/9/2013
Written 7/9/2013
