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Commonwealth v. Asher

Supreme Judicial Court of Massachusetts

June 9, 2015

Commonwealth
v.
Jeffrey Asher

Argued: February 4, 2015.

Hampden. Complaint received and sworn to in the Holyoke Division of the District Court Department on October 14, 2010.

The case was tried before Maureen E. Walsh, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Andrew J. Gambaccini for the defendant.

Elizabeth Dunphy Farris, Assistant District Attorney ( Katherine E. McMahon, Assistant District Attorney, with her) for the Commonwealth.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[31 N.E.3d 1056] 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.

Page 581

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 [31 N.E.3d 1057] vehicle.[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.[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 ...


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