COMMONWEALTH vs. JEFFREY ASHER.

BOTSFORD, J. This case concerns the beating of an unarmed civilian by the defendant Jeffrey Asher, a police officer who responded to another officer's request for assistance with a traffic stop in Springfield. The defendant was charged with assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b), and assault and battery in violation of G. L.

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c. 265, § 13A (a). At trial, the defendant contended, and presented evidence seeking to show, that the beating was justified based on the need for self-defense and defense of others present. The jury found him guilty of both charges.We affirm the convictions.

Background. 1. Facts. Based on the evidence presented at trial, the jury could have found the following. On the evening of November 27, 2009, Officer Michael Sedergren and Lieutenant John Bobianski of the Springfield police department were on patrol in a cruiser when they observed a black Honda Civic automobile dragging its muffler and causing sparks to fly behind it. The officers stopped the vehicle, and Bobianski spoke to the driver, Malika Barnett. While Bobianski was speaking to Barnett, Sedergren observed Barnett's companion, Melvin Jones, who was the sole passenger in the vehicle (and the victim in this case), slide toward the floor in the right front passenger's seat and stuff something in his waistband. Concerned that the victim could be hiding a weapon or other contraband, Sedergren requested assistance over the police radio from Officer Theodore Truoiolo and the defendant, who were together on patrol that night in a separate vehicle.

Once Truoiolo and the defendant arrived, all four officers approached the Honda, with two officers on each side of the vehicle. [Note 1] Truoiolo and Sedergren went to the passenger's side and asked the victim to step out of the vehicle so that they could conduct a patfrisk of him. The victim complied. At the officers' instruction, the victim moved to the rear of the vehicle and placed his hands on the trunk. Truoiolo then began patting the victim's outer garments to check for weapons. When Truoiolo reached the victim's front right pants pocket, Truoiolo felt a hard object no bigger than his palm. [Note 2] Truoiolo squeezed the object and yanked the victim toward himself; as he did so, the victim threw his elbow and forearm into Truoiolo's chest and tried to run away.

Sedergren caught the victim around the neck about five feet from the vehicle, but the victim continued to try to run, and the two men ended up against the side of the hood of the second police cruiser. Truoiolo then grabbed hold of the victim's collar

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and right shoulder, while Sedergren had the victim in a "choke hold type maneuver" and was on top of the victim's back. At this point, the victim was bent forward over the hood of the police cruiser, with his head facing the windshield and his legs spread apart. The defendant, having seen the victim try to run, went over to the cruiser where the victim was lying spread eagle. The defendant was unable to see the victim's hands,but in response to a statement of Sedergren's, the defendant began to hit the victim repeatedly around his head with a flashlight. [Note 3] Although not all of the blows hit the victim's head, the defendant swung the flashlight at the victim fourteen or more times. At least three strikes made contact with the victim's head and upper body.

The victim continued to move after the first strikes to his head. The officers were shouting commands such as, "don't move" and, "give us your hands," but they did not state that the victim was under arrest. Eventually, Truoiolo cuffed the victim's right hand but could not reach the victim's left hand because of where Sedergren was positioned. The defendant, realizing that many of his blows were hitting the hood of the cruiser rather than the victim's upper body, moved down and delivered three hard blows with the flashlight to the victim's upper leg. Then, in response to another statement from Sedergren, the defendant hit the victim behind his left knee. [Note 4] Following that blow, the victim fell to the ground with the officers on top of him. The defendant continued to hit the victim as he was lying still on the ground, this time around the victim's upper body and his feet. Eventually, the officers rolled the victim to the side while he lay on the ground and finished handcuffing him, and then Truoiolo reached into the

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victim's pocket and pulled out the hard object that he had felt earlier, a small bag that was determined to contain "crack" cocaine and marijuana. The victim had no weapons on his person, and no weapons were found in the vehicle.

The victim was taken by ambulance to Baystate Medical Center. The right side of his face was deformed from swelling and bruising, and he suffered fractures of his orbital socket and nose. The victim was also diagnosed with a choroidal rupture, an eye injury resulting from blunt force trauma to the head and causing loss of vision in his right eye. At the time of trial, in February, 2012, the victim continued to experience vision loss.

Two persons in a house across the street from where the officers stopped the vehicle noticed the incident developing and recorded much of it on a video camera. The recording, which includes both audio and video, was admitted as an exhibit at trial.

2. Procedural history. On October 14, 2010, a complaint issued from the Holyoke Division of the District Court Department, charging the defendant with assault and battery by means of a dangerous weapon and assault and battery. Several months later, the defendant filed a notice stating that he would raise as defenses (1) self-defense, (2) defense of another, and (3) "[d]efense of a law enforcement officer's right to use force reasonably necessary to effect an arrest, overcome physical resistance and/or prevent escape." See Mass. R. Crim. P. 14 (b) (3), as appearing in 442 Mass. 1518 (2004). Thereafter, approximately three months before trial, the defendant filed an expert witness report of Dr. Frank Gallo, director of the master of science in policing program at Western New England University, that the defendant claimed supported a conclusion that the defendant's use of force against the victim was reasonable. [Note 5] The Commonwealth responded to the notice of defenses and to the expert witness report by filing a motion in limine to exclude any defense based on the reasonable force necessary to effect an arrest. [Note 6] In response, in two subsequent pretrial hearings regarding Gallo's proposed testimony, the

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defendant's trial counsel stated repeatedly that reasonable force to effect an arrest was not the legal theory on which the defendant was relying and on which Gallo's testimony would be based. Rather, counsel asserted that the defendant's theory of the case, reflected in Gallo's testimony (see note 5, supra),was that the defendant used force to effect a Terry-type stop and a patfrisk of the victim, see Terry v. Ohio, 392 U.S. 1, 27 (1968), and that, ultimately, the force used was reasonably necessary for self-defense and defense of others, and also based on a police officer's training to escalate the use of force in response to a deadly threat, such as a suspect obtaining an officer's gun. [Note 7] The Commonwealth indicated that if the defendant was not asserting that he used reasonable force to effect an arrest, then the Commonwealth's motion in limine to exclude evidence of this defense was moot. The trial judge does not appear to have ruled on the motion in limine to exclude, but she did rule preliminarily that Gallo would be allowed to testify at trial.

The defendant was tried before a jury in February, 2012. Despite the trial judge's preliminary ruling concerning Gallo, the defendant did not call Gallo as a trial witness. At the close of the evidence, the defendant submitted a request for jury instructions that included repeated reference to the defendant's status as a police officer, to a police officer's right to use force in making an

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arrest, and to the fact that a person who is being arrested by a police officer may not use force to resist arrest. The defendant also proposed instructions on self-defense and defense of another that mirrored in most respects the District Court's model jury instructions on these defenses, and that included the duty to exhaust all other options, including retreat, before resorting to force. See Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009), at 1-5, 17 (Instruction 9.260). In connection with each of the defendant's proposed instructions, including the instruction on self-defense, the defendant sought a statement regarding his status as a police officer.

At the charge conference, the judge indicated initially that she would instruct the jury on the definition of arrest and on police privilege in some form, although not using the defendant's proposed language. The judge later presented both counsel with a proposed instruction stating that "[b]ecause of the nature of the job, a police officer is permitted to use force in carrying out his official duties if such force is necessary and reasonable," and that a civilian who is arrested by a police officer must submit to the arrest, but a police officer may not use "excessive or unnecessary force" to make an arrest. [Note 8] The defendant indicated his satisfaction with this instruction. The Commonwealth, however, objected to it on the grounds, among others, that it was essentially an instruction on resisting arrest, a defense the defendant had earlier eschewed. After further discussion with counsel, the judge determined that the planned instruction was confusing and misstated the law, and that, therefore, the instruction would not be given; the defendant objected. The judge's instructions to the jury ultimately included self-defense and defense of another, but did not reference the defendant's status as a police officer in connection with those defenses or otherwise.

The jury found the defendant guilty of both charges. The defendant timely appealed. We transferred the case from the Appeals Court on our own motion.

Discussion. On appeal, the defendant primarily challenges the trial judge's decision not to give the jury the instruction she had proposed on police privilege and resisting arrest, which had the

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effect of eliminating entirely from her jury instructions any reference to a police officer's ability to use reasonable force in connection with official duties. This issue was exacerbated, the defendant argues, by the judge's instructions on self-defense, which included reference to the duty to retreat -- a requirement that in the defendant's view is inappropriate when the person asserting the defense is a police officer. At trial, the defendant's actual objection to the jury instructions before and after the jury charge specifically focused on the judge's decision not to give her proposed instruction on police privilege and resisting arrest. Nevertheless, because the defendant's status as a police officer was clearly a central issue throughout the trial and a focal point of the defense, [Note 9] on appeal, we treat the defendant's challenge to the judge's instructions generally as preserved. We therefore review the judge's instructions for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). In doing so, we conclude that the judge's instructions, insofar as they contained no reference to the defendant's status as a police officer and included the duty to retreat in the explanation of self-defense, were flawed. We further conclude, however, that the errors were not prejudicial when considered in the context of the evidence in the case and the instructions as a whole.

We consider first the judge's decision not to give her proposed police privilege and resisting arrest instruction. [Note 10] This decision was appropriate in the circumstances of this case for two reasons. The first concerns fairness. By initially suggesting an intent to

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pursue the defense of effecting an arrest and then disavowing it, counsel effectively indicated to the Commonwealth that it need not present evidence aimed at overcoming this defense. [Note 11] Indeed, the prosecutor argued during the charge conference that had she anticipated a defense based on the use of force to effect an arrest and a related jury instruction, she would have called a potential expert witness to rebut this theory. [Note 12]

Second, and more importantly, the judge was correct in her eventual conclusion that her proposed instruction would have confused and potentially misled the jury. The planned instruction was based on the District Court's model jury instruction on police privilege and resisting arrest, which primarily serves to articulate that a civilian who is being arrested by someone the civilian knows is a police officer must submit to the arrest and may not use force against the arresting officer unless the officer uses excessive or unnecessary force to make the arrest. See Instruction 9.260, at 12-13. [Note 13] This case, however, presents the opposite scenario: the defendant was a police officer charged with assault and battery on a civilian. In addition, to the extent that both the model instruction and the trial judge's proposed instruction discussed self-defense, like the model instruction, the proposed

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instruction spoke only of a civilian's right to defend himself or herself against a police officer who uses excessive force, not the other way around. [Note 14] See note 10, supra. See also Instruction 9.260. Accordingly, the instruction was structured so as to focus the jury on evaluating the actions of the putative arrestee and on whether those actions were reasonable in light of the police officer's use of force, rather than on the reasonableness of the police officer's actions. But here, where the defendant was a police officer who claimed that his actions were necessary for self-defense and defense of others against violence at the hands of the victim, the opposite focus was the essential one, that is, whether the officer's claims in response to the victim's alleged use of force and related conduct were reasonable. Given the context, the proposed instruction's potential for creating juror misunderstanding was a real one.

But that is not the end of the matter. Although the judge did not err in declining to give her proposed instruction, this case was fundamentally about the reasonableness of a police officer's use of force against a civilian; therefore, the judge's instructions should have acknowledged the defendant's status and explained that, as a police officer, the defendant would have been justified in using force in connection with his official duties, including effecting an arrest,as long as such force was necessary and reasonable. [Note 15] The language that begins the model instruction on police privilege and resisting arrest is not the only possible approach, but this language does convey a police officer's right to use reasonable force. See Instruction 9.260, at 12 ("Because of the nature of the job, a police officer is permitted to use force in carrying out his [her] official duties if such force is necessary and

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reasonable").

In addition, the defendant raises legitimate concerns with respect to the judge's instruction on self-defense. In keeping with the model jury instruction on self-defense, the judge referenced a defendant's obligation to do "everything reasonable in the circumstances to avoid physical combat before resorting to force" including considering "avenues of escape that were reasonably available." See Instruction 9.260, at 2, 4. We agree with the defendant that a police officer has an obligation to protect his fellow officers and the public at large that goes beyond that of an ordinary citizen, such that retreat or escape is not a viable option for an on-duty police officer faced with a potential threat of violence. Cf. Reed v. Hoy, 909 F.2d 324, 331 (9th Cir. 1989), cert. denied, 501 U.S. 1250 (1991), recognized as overruled on other grounds, Edgerly v. City & County of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010) (duty to retreat before resorting to deadly force "may be inconsistent with police officers' duty to the public to pursue investigations of criminal activity" and should not apply absent clear authority, which plaintiff had not identified). The supplemental model instruction on the duty to retreat before resorting to the use of force in self-defense should not have been given in this case. Furthermore, while it is appropriate to require a police officer to do "everything reasonable in the circumstances to avoid physical combat before resorting to force" against a civilian, the question must be whether the defendant as a police officer had reasonable options available other than to use force -- not whether a similarly situated civilian would have had other options.

In sum, the judge's instructions to the jury were erroneous in two respects: (1) they failed to acknowledge, particularly in connection with the claim of self-defense, that the defendant was a police officer and that he was entitled to use force in carrying out his official duties if and to the extent such force was necessary and reasonable; and (2) the self-defense instruction included an erroneous statement that the defendant had a duty to retreat if possible under the circumstances. We turn, then, to the question whether the errors were prejudicial to the defendant. "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect'; however, if we cannot find 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,' then it is prejudicial." Cruz, 445 Mass. at

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591, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Considering the jury instructions as a whole, as we must, see Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), S.C., 451 Mass. 1008 (2008), as well as the strength of the Commonwealth's case, we conclude that the errors were not prejudicial. At trial, the defendant admitted to hitting the victim repeatedly with the flashlight, the victim clearly sustained significant injuries, and the only issue was whether the defendant's acts were justified. The record as a whole presents extremely strong evidence that the defendant did not strike the victim in the manner that he did in self-defense and in defense of his fellow officers. The video recording of the beating showed three officers surrounding a single victim, who was bent over the hood of a car as the defendant struck him repeatedly with a flashlight. Sedergren, who was on top of the victim's back and was holding him around the neck, weighed between 250 and 260 pounds at the time of the incident; the victim, by comparison, weighed about 165 or 170 pounds. None of the officers saw the victim's hand on Sedergren's gun. Moreover, based on the officers' positioning around the victim, it was implausible if not impossible that the victim could have reached the gun, because it was holstered on the right side of Sedergren's body, where Truoiolo was. [Note 16] As previously noted, the video recording also belied the defense's theory, because although an officer can be heard on the recording yelling "smash him in the knees," see note 3, supra, there was no audible statement or reference regarding a gun.

Furthermore, as part of her charge on self-defense and defense of another, the judge explained that whether a defendant was justified in using force in his or her own defense or in defense of others depended upon what a reasonable person would have done in the circumstances that were presented to the defendant. See Instruction 9.260, at 1-5, 17. Even in the absence of a specific instruction on the defendant's status as a police officer, it was

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clear to the jury that he was, in fact, an officer, and that at the time of the incident, he was involved in a traffic stop as part of his official duties. Moreover, through Sedergren's and Truoiolo's testimony, the defendant introduced evidence concerning the "continuum" of force that police officers are trained to use in responding to an individual who presents varying degrees of threatening behavior or resistance. We presume that the jury followed the judge's instruction, and in doing so, we assume that they evaluated the defendant's claims of self-defense and defense of others from the perspective of what a reasonable police officer would have done in the circumstances presented to him or her.

Finally, we conclude with "fair assurance," Cruz, 445 Mass. at 591, that if the judge had charged the jury that the defendant was entitled to use such force as was necessary and reasonable to carry out his official duties, the addition of this instruction would not have had an effect on the verdicts. The force that the defendant used here -- repeated blows with a flashlight to the head and other parts of the body of a victim who was bent over the hood of an automobile, and later lying on the ground -- was extreme and went beyond that which was necessary for the accomplishment of any of the defendant's responsibilities as a police officer that night. Even if the defendant believed at one point that the victim was trying to grab Sedergren's gun, that danger would have completely dissipated by the time the victim was on the ground; yet even then, the defendant continued to strike the victim. In these circumstances, assuming the jury had been instructed properly about the defendant's police officer status, the jury reasonably could not have found that the beating was justified.

Conclusion. For the reasons that have been discussed, the jury instructions in this case should have been more narrowly tailored to reflect the fact that the defendant was a police officer engaged in his official duties at the time of the incident. However, given the strength of the evidence against the defendant and the weakness of his defenses, we conclude that the errors were not prejudicial and that the defendant is not entitled to a new trial.

Judgments affirmed.