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Commonwealth v. McCrohan, 34 Mass.App.Ct.
277 (1993)
Appeals Court of Massachusetts,
No. 91‑P‑14.
Argued
Decided
Robert A. Costantino,
Elspeth P. Cypher, Asst.
Dist. Atty., for Com.
Before BROWN, PORADA and
LAURENCE, JJ.
LAURENCE, Justice.
On the
morning of
McCrohan's appeal attacks as error the judge's denial of
his pretrial motion for dismissal and his motion for a required finding of not
guilty at the conclusion of the Commonwealth's case. Both motions asserted that, since the
The evidence. On
Newman
provided Bopp with the registration papers for the
vehicle (which belonged to his girlfriend) but explained that he had forgotten
to bring his license, which he claimed had recently been reinstated after a
suspension. When Bopp [34 Mass.App.Ct.
279] radioed from his cruiser to
check on the status of Newman's license, his dispatcher informed him that their
computer was down. Monitoring these
transmissions, as was customary among police in the area, were Freetown police
officers Carlton Abbott and Steven Abbott, who were in uniform and on duty in
their police cruiser in neighboring Freetown, which lies south of Berkley. Carlton Abbott was at the time the commanding
officer in charge of that particular Freetown shift. The Abbotts radioed
Bopp that the Berkley dispatcher could obtain the
license information from the Freetown station.
Bopp passed this along to his dispatcher, who
shortly thereafter informed Bopp that Newman's
license had been suspended but that the information was not current enough to
support an arrest for operating after suspension.
Newman and
McCrohan had meanwhile gone to McCrohan's
back yard, supposedly to inspect an old jeep McCrohan
was offering for sale. After making
preparations to jump‑start the jeep with cables attached to his own car, McCrohan went back into his house to find the keys to the
jeep. At that juncture, the two Freetown
officers arrived on the scene, just as Bopp was
finishing his conversation with his dispatcher.
Bopp apprised them of the situation and
expressly asked them to accompany him in questioning Newman and McCrohan. They proceeded
into McCrohan's back yard, just as McCrohan returned to the jeep with the keys. Newman was nowhere in sight. The three officers approached McCrohan, and Bopp asked him
where Newman was. McCrohan
said he did not know. Bopp then asked if McCrohan had
helped Newman flee by advising him of the way through the woods that adjoined McCrohan's yard, which McCrohan
vehemently denied.
Trial
testimony as to what happened next conflicted.
According to McCrohan, Carlton Abbott stepped
up to him "face to face" and profanely demanded that he identify
himself. McCrohan
replied that he was the owner of the property, demanded that they leave, stated
that he was going back into his house, and started walking toward the house in
a direction that would require him to pass between Carlton [34 Mass.App.Ct. 280] Abbott and Steven Abbott.
In response, the Freetown officers stepped together as if to block his
path, but McCrohan kept walking and "all three
of [their] shoulders hit." McCrohan was then grabbed by the hair, thrown to the
ground, and kicked or hit in the ribs and head until his wife and father, who
had been watching from inside the house, ran out shouting, "What's
going on here?" At that point, he
was walked to the Freetown police cruiser and placed inside. The testimony of McCrohan's
wife and father generally corroborated his claim of being the victim of police
aggression.
The three
officers uniformly testified that McCrohan had
initiated the physical contact by shoving both Abbotts
in the chest as he attempted to push by them.
Steven Abbott then grabbed McCrohan by the
back of his collar and, with McCrohan thrashing his
elbows wildly, they both fell to the ground.
Carlton Abbott "jumped on top" to assist in handcuffing McCrohan, who was still violently resisting, while Bopp held off McCrohan's two dogs
who had rushed, growling, barking, and snapping their jaws, toward the
commotion. After handcuffing McCrohan on the ground, the Abbotts
placed him in the Freetown cruiser but transferred him to the Berkley cruiser
when Bopp pointed out that it was his jurisdiction
and he was the officer in charge. The
Freetown officers then left in their cruiser, and Bopp
soon thereafter released McCrohan because he
"seemed remorseful" and offered to cooperate with Bopp
in "the Newman case."
McCrohan was treated at a hospital that day for a mild
concussion, after which he stopped at the home of the Berkley chief of police
to describe what had occurred. The
following day, he telephoned a local attorney's radio talk show and on the air
discussed the turbulent incident, inquiring about the possibility of a civil
suit against the police. Three days
later (four days after the incident) Carlton Abbott applied for the criminal
complaint. (FN2) McCrohan was found
guilty on [34 Mass.App.Ct.
281] both counts at a bench trial in
Taunton District Court on September 21, 1989, and subsequently exercised his
right to a trial de novo in the Fall River District Court jury session.
[1] McCrohan's
motions for dismissal and required findings. McCrohan's motion
to dismiss essentially argued that the evidence was insufficient to establish
that the Freetown officers were engaged in the performance of their duties at
the time of the alleged offense. It was
properly denied because the judge at the jury trial "ha[d] no choice but
to deny a motion to dismiss which is based on an alleged insufficiency of the
evidence at a previous bench trial." Commonwealth v. Vaughn, 18 Mass.App.Ct. 262, 263, 464 N.E.2d 114 (1984).
[2] The
underlying theme of McCrohan's motion for required
findings and his principal appellate argument is that the Freetown officers
lacked authority to act outside of Freetown and therefore were not "police
officers ... engaged in the performance of [their] dut[ies]" at the time of their confrontation. Thus, he claims, an essential element of the
offense charged under G.L. c. 265, § 13D, could not
legally be established. The Commonwealth
acknowledges that a police officer's authority is limited to the territorial
boundaries of the governmental unit which appoints him, barring a statutory
exception, see Commonwealth v. LeBlanc,
407 Mass. 70, 73, 551 N.E.2d 906 (1990);
that the most commonly cited statutory exception is not here applicable;
(FN3) and that, in the absence of a statutory exception, "[w]hen a police
officer makes a warrantless arrest outside of his
jurisdiction ... he acts as a private citizen...." Commonwealth v. Grise, 398 Mass. 247, 250, 496 N.E.2d 162 (1986). See
Commonwealth v. Owens, 414 Mass. 595, 599, 609 N.E.2d 1208 (1993).
The
Commonwealth maintains, however, that McCrohan's
reiterated citation of Grise and similar cases involving warrantless
police arrests and his emphasis on the absence of circumstances justifying
application of the fresh pursuit principle[34 Mass.App.Ct.
282]
of G.L. c. 41, § 98A, are irrelevant. We agree.
The issue here was not the power of the Freetown officers to arrest McCrohan but whether they were "engaged in the
performance of [their] dut[ies]"
at the time of the melee with McCrohan which the jury
found involved an assault and battery upon them by McCrohan. (FN4)
The Commonwealth relies on an existing mutual aid agreement between
Berkley and Freetown, entered into pursuant to G.L.
c. 40, § 8G, (FN5) and on evidence demonstrating that the agreement was invoked
in the instant circumstances, as providing the basis for the Freetown police
officers' lawful presence in Berkley. We
find the Commonwealth's reliance justified.
Examining
the evidence in the light most favorable to the Commonwealth, as we must, see Commonwealth v. Latimore,
378 Mass. 671, 676‑677, 393 N.E.2d 370 (1979); Commonwealth v. Sabetti, 411 Mass. 770, 777, 585 N.E.2d 1385 (1992), we
conclude that it was more than sufficient to permit the jury to find that the
mutual aid agreement was in effect and had been properly implemented in the McCrohan brawl, thereby investing the Freetown officers
with the powers of Berkley police officers.
(FN6) The Commonwealth presented
uncontested testimony that [34 Mass.App.Ct. 283]
Bopp was the commanding officer of the Berkley police
force on the morning in question; that
he had made an explicit request to the Freetown officers to assist him in
questioning Newman and McCrohan; and that the request was received and favorably
responded to by the then‑commanding officer of the Freetown police,
Carlton Abbott. The judge below
therefore correctly denied McCrohan's motion for a
required finding of not guilty. (FN7)
[34 Mass.App.Ct.
284] [3] McCrohan's
arguments that the mutual aid agreement was inapplicable to his case are based upon a strained and
unpersuasive interpretation of that document.
He contends that the agreement establishes as a precondition that a
formal request be made by the proper officer in one community to a predesignated person in the other community which must be
received, processed, and responded to prior to the dispatch of any personnel or
resources from the receiving to the requesting community. That reading finds no support in the
agreement. It contains no requirement
that a request be made in any specific manner or while the respective officers
are in any particular location. See supra, note 7.
The police
chiefs of both municipalities testified that the agreement can be and had been
implemented by ad hoc arrangements that fall short of formal prior
requests. One of the acceptable methods
of invoking the agreement to which the Berkley chief testified was the very
case at hand‑‑a request for assistance by an officer of one town to
an officer from another signatory town who happened to be passing through. The way parties have in fact performed their
agreements is one of the best guides to proper construction. See
Martino v. First Natl. Bank, 361
Mass. 325, 332, 280 N.E.2d 174 (1972).
Given the Lilliputian character of the Berkley and Freetown police
departments, as well as the frequently fleeting and emergency nature of many
situations that confront police officers, even in bucolic communities, it is
both reasonable and commonsensical to construe the mutual aid agreement so as
to accommodate such informality and flexibility. See
Stop & Shop, Inc. v. Ganem, 347 Mass. 697,
701, 200 N.E.2d 248 (1964); JRY Corp. v. LeRoux, 18 Mass.App.Ct. 153,
159‑160, 464 N.E.2d 82 (1984).
(FN8)
[34 Mass.App.Ct.
285] [4] McCrohan's
other objection to the applicability of the mutual aid agreement is even wider
of the mark. He asserts, nakedly, that
the "minor civil motor vehicle infraction committed by Newman" could
not rise to the level of need that would require the assistance of a police
officer from a signatory community under the agreement. He provides, however, no authority for the
proposition implicit in his assertion, that this or any court is empowered to
second‑guess and invalidate a police officer's discretionary
determination that an ongoing field investigation requires additional resources
beyond a single officer's capabilities.
This is unacceptable appellate argument that we need not consider. See
Graham v. Quincy Food Serv. Employees Assn. &
Hosp., Library & Pub. Employees Union, 407 Mass. 601, 605 n. 2, 555
N.E.2d
543 (1990); Foley v. Evans, 30 Mass.App.Ct.
509, 512‑513 n. 5, 570 N.E.2d 179 (1991).
(FN9)
[34 Mass.App.Ct.
286] [5] The jury instructions. McCrohan's main claim of error in the charge arises from
the judge's refusal to instruct the jury that G.L. c.
41,§ 98A, limited the arresting authority of the Freetown police officers to
their territorial jurisdiction and that, in the absence of proof of fresh
pursuit, they were acting solely as private citizens on McCrohan's
premises in Berkley. The judge did not
err, however, since, as noted above, the Freetown officers' power to arrest McCrohan was not a legitimate issue in the case.
The
question to be decided was whether the Freetown officers were, in the
circumstances, "engaged in the performance of [their] dut[ies] at the time of" the scuffle, which preceded any
arrest. McCrohan's
requested instruction would have improperly removed that question from the
jury, transforming a factual issue into an erroneous conclusive legal
determination on this record. The judge
accurately charged as to the elements of assault and battery and the
Commonwealth's burden to convince the jury beyond a reasonable doubt that the
Freetown officers were, at the moment of the tumult, engaged in the performance
of their duties pursuant to the provisions of the mutual aid agreement. The instructions correctly left the essential
factual questions underlying proof of the elements of the offense charged for the
jury to resolve.
McCrohan's other challenges to the judge's charge lack
merit for the reasons set forth in the brief of the Commonwealth.
Judgments affirmed.
(FN1.) At the time of the complaint, G.L. c. 265, § 13D, as amended through St.1988, c. 285,
provided, in pertinent part:
"Whoever
commits an assault and battery upon a police officer [or any of twenty‑two
other specified public officials] ... when such person is engaged in the
performance of his duty at the time of such assault and battery ... shall be
punished by imprisonment for not less than ninety days nor more than two and
one‑half years in a house of correction or by a fine of not less than
five hundred nor more than five thousand dollars."
In
1990, the statute was broadened to apply to "an assault and battery upon
any public employee when such person is engaged in the performance of his
duties at the time of such assault and battery." St.1990, c. 498.
(FN2.) Despite McCrohan's
insinuation that the criminal complaint was filed to intimidate or retaliate
against him on account of his potential civil suit (which he in fact later
commenced in Federal District Court), the sole evidence on the subject of the
timing of the complaint was Carlton Abbott's testimony that he filed charges
only after it had become clear that the Berkley authorities were not going to
pursue the matter.
(FN3.) That exception is provided by G.L. c. 41, § 98A, as inserted by St.1967, c. 263, which
authorizes arrest by a police officer outside of his city or town "on
fresh and continued pursuit." See
also note 8, infra.
(FN4.) Even if the uniformed Freetown officers
had been unlawfully attempting to arrest McCrohan at
the time, he could nonetheless have been found guilty under G.L.
c. 265, § 13D, because he had no right to resist an unlawful arrest that was
being accomplished without excessive force (which McCrohan
does not here allege). See Commonwealth v. Moreira,
388 Mass. 596, 600‑601, 447 N.E.2d 1224 (1983). The judge properly instructed the jury on
this point.
(FN5.) General Laws c. 40, § 8G, as inserted
by St.1972, c. 220, § 2, empowers a city or town to enter into an agreement
with one or more other cities or towns "to provide mutual aid programs for
[their] police departments to increase the capability of such departments to
protect the lives, safety, and property of the people in the area designated in
the agreement. Said agreement may
include the furnishing of personal services, supplies, materials, contractual
services, and equipment when the resources normally available to any
municipality in the agreement are not sufficient to cope with a situation which
requires police action."
(FN6.) The Berkley‑Freetown mutual aid
agreement, to which the towns of Dighton, Raynham, and Lakeville and the city
of Taunton were also signatories, provided in § 5.0 that "Police officers
from a sending community shall have all the powers of police officers,
including the power of arrest, while responding to a mutual aid request."
(FN7.)
The pertinent provisions of the mutual aid agreement were the following:
"SECTION
2.0 SITUATIONS COVERED
The
provisions of this agreement may be invoked for any situation occurring within
the boundaries of a signatory community which situation requires the use of
resources not immediately available to the local law enforcement agency.
"SECTION
3.0 METHOD OF REQUESTING ASSISTANCE
The
Chief of Police or, in his absence, the Commanding Officer shall determine when
the assistance of other law enforcement agencies is required, and shall notify
the person designated to receive such request in the appropriate signatory
community.
"SECTION
3.1
Each
signatory community shall designate one or more persons to receive requests for
law enforcement mutual aid. Each
signatory community will be kept informed of the names and phone numbers at
which such designated persons can be contacted.
Each community shall assure that twenty‑four hour a day phone
coverage is provided.
"SECTION
3.2
The
Chief of Police or, in his absence, the Commanding Officer shall determine
whether and to what extent a request received under this agreement will be
fulfilled. In the event that a Chief or,
in his absence, the Commanding Officer determines that no assistance, or
assistance differing from that requested, will be provided, he will so notify
the requesting department of his determination as quickly as possible.
"SECTION
4.0 COMMAND AND CONTROL
Law
enforcement personnel and equipment, upon entering the jurisdiction of a
receiving department in response to a request for mutual aid, shall be under
the direction and control of the Commanding Officer of the receiving
department. So far as practicable,
officers from a sending department will be utilized in conjunction with officers
from a receiving department so as to compensate for the lack of knowledge of
the geography of the receiving community."
(FN8.) Although we need not decide the
question, given the mutual aid agreement, the exchange between Bopp and Carlton Abbott, both acting as commanding officers
of their respective forces, also appears to have satisfied the requirements of G.L. c. 41, § 99, which provides for the requisition of
police officers by other jurisdictions.
Section 99, as amended through St.1965, c. 382, states:
"The
mayor, selectmen, chief of police, or person however designated having the
duties of a chief of police, or, in the absence of the chief of police, or
person however designated having the duties of a chief of police, the commanding officer, may upon the
request of the mayor, selectmen, chief of police, or person however
designated having the duties of a chief of police, or in the absence of the
chief of police or person however designated having the duties of a chief of
police, the commanding officer of any
other city or town, provide police officers, who shall have the authority of
constables and police officers within the limits of such city or town,
except as to the service of civil process, and, while exercising such authority within such limits, shall have the
same immunities and privileges as when acting within their respective cities
and towns; and the city or town
providing said officers shall be entitled to receive from such city or town the
amount paid to them for their service, including their necessary traveling
expenses" (emphasis supplied).
Our
appellate courts have frequently observed that to validate extraterritorial
arrests, police departments should have their officers sworn in as special
officers on the police forces of neighboring cities and towns under § 99. See Commonwealth
v. Grise, 398 Mass. at 252‑253 n. 6, 496
N.E.2d 162; Commonwealth v. LeBlanc, 407 Mass. at 73,
551 N.E.2d 906; Commonwealth v. Dise,
31 Mass.App.Ct. 701, 704 n. 6, 583 N.E.2d 271 (1991).
(FN9.) McCrohan's
assertion is particularly insubstantial in light of the fact that the
challenged determination was made by Bopp as
commanding officer of the Berkley police department, the very person whom the
agreement empowers to "determine when the assistance of other law
enforcement agencies is required."
See supra, note 7. Furthermore, McCrohan's
apparent friendship with and willingness to help Newman warranted Bopp's cautious decision to request the assistance of the Abbotts in a "situation [that] require[d] the use of
resources not immediately available to" Bopp as
the sole policeman on duty in Berkley.
See ibid.