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Commonwealth v. O'Neal

Appeals Court of Massachusetts, Essex

May 2, 2018


          Heard: March 7, 2018.

         Complaint received and sworn to in the Lynn Division of the District Court Department on August 27, 2012.

         The case was tried before James D. Barretto, J., and a motion for a new trial was heard by him

          Kathleen D. Mulligan for the defendant.

          Catherine L. Semel, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Blake, & Desmond, JJ.

          MILKEY, J.

         A District Court jury convicted the defendant of assault and battery by means of a dangerous weapon (ABDW), a shod foot. The conviction was based on testimony that while the defendant was being transported at the police station in a device known as a "restraint chair, " he kicked a Lynn police officer in the stomach. Before us now are the defendant's direct appeal and his appeal of the denial of his motion for new trial (which have been consolidated). The defendant argues that a new trial is warranted on three grounds: 1) the Commonwealth's failure to preserve and disclose a video surveillance recording of the incident, 2) ineffectiveness of trial counsel in failing to request a copy of the Lynn police department's policy on the use of restraint chairs, and 3) insufficient evidence to convict the defendant of ABDW based on reckless conduct, one of the two theories on which the case went to the jury. For the reasons that follow, we conclude that the defendant is entitled to a new trial. We therefore vacate the judgment and set aside the verdict.


         1. The incident.

         At approximately 9:30 P..M. on August 24, 2012, Lynn police officers responded to reports of a disturbance outside a bar in Lynn. There, the police found the defendant in the aftermath of what appeared to be a bicycle accident. He was yelling at others at the scene, unsteady on his feet, smelled of alcohol, and had slurred speech.[1] Concluding that the defendant was intoxicated, the officers placed him into protective custody, handcuffed his hands behind his back, and transported him to the police station in the back of their cruiser. Once at the station garage, the defendant was unwilling or unable to exit the cruiser.[2] The officers therefore pulled him out of the vehicle, and placed him on the ground after he could not, or would not, stand.

         At that point, the officers radioed their supervisors inside the station for assistance, and they were brought a restraint chair to transport the defendant to the booking area. A restraint chair is designed to immobilize unruly detainees. It has a seat that is tilted so that when the chair itself otherwise is upright, the person sitting there is lying back at an angle with his knees elevated above his hips. The chair has straps to be used to hold in place a detainee's wrists, ankles, lap and shoulders. In this instance, however, the officers did not use the available straps to secure the defendant in the restraint chair. Instead, after placing him in the chair with his hands handcuffed behind his back, they left him that way for the trip into the station. According to the defendant, who testified at trial, this meant that his entire weight fell on his handcuffed wrists, causing him "excruciating pain."[3] He further testified that this in turn caused him to writhe around in the chair as he sought to relieve the pressure off his wrists. Without the defendant strapped in, the police held him down in the chair using their hands, causing further pressure on his handcuffed wrists.

         The failure of the police to secure the defendant in the restraint chair appears to be at odds with a written policy that emerged only in postconviction discovery. That policy set forth various procedures and requires "that all [police] personnel adhere strictly to [its] procedures." The policy also requires that after initially placing a detainee in the restraint chair, "[t]he attached recommended manufacturer procedures for properly restraining a detainee in the [chair] should then be followed." Under those procedures, the police are to attach the detainee's handcuffs to the supplied "handcuff tether, " and then release the defendant's arms one at a time to attach them to the arm of the chair using a wrist wrap.

         At least at one point during the trip from the garage to the booking area, the defendant's foot -- which the officers had not secured using the chair's straps and which, according to a police witness, was hanging off the side of the chair -- impeded the movement of the chair. The officers portrayed this as a deliberate effort by the defendant to thwart his being taken into the station house; the defendant portrayed it as the involuntary result of his trying to relieve the pressure on his handcuffed wrists. In either event, it is uncontested that the police officers tilted the restraint chair back in order to keep the chair moving, with one of the officers acknowledging that the chair was "tilted back further than it already is designed to do." The tilting of the chair in this manner also appears to violate the police policy on the use of restraint chairs, which mandates that "[t]he [restraint chair] and detainee shall remain in a seated upright position at all times while a detainee is restrained in the [chair], and should at no time be positioned backward so that the detainee is positioned on their back."

         The defendant described the tilting of the chair as a sudden jerking that caused him to flail in it. He admitted that his foot came into contact with one of the officers, but he characterized it as an accidental "knee-jerk reaction" to the sudden tilting of the chair. The officers described it as a distinct and deliberate kick to the officer's stomach. The officer who was struck described the kick as having been done with "quite a bit of force, " and he testified that it "hurt."

         The trial judge instructed the jury on the elements of ABDW (and of assault and battery as a lesser included offense) based on both intentional and reckless conduct. In addition, at the defendant's request, the judge instructed the jury on accident. Neither party objected.

         2. Surveillance recordings and pretrial discovery.[4]

         Unbeknownst to the defendant prior to trial, the police station was outfitted with closed circuit surveillance cameras in all of the areas through which the defendant was transported in the restraint chair. Moreover, video recordings of what transpired there automatically would have been made. However, the system was set up so that, on a ten-week cycle, recordings are automatically recorded over. As a result, video recordings not retrieved within that ten-week period effectively are destroyed.

         There is a paper trail that memorializes some of the pretrial communications between the prosecutor and defense counsel, and between the prosecutor and Lynn police, regarding whether there might be a video recording of the incident. On February 10, 2014, almost a year-and-a-half after the incident, the defendant filed an assented-to motion for discovery that, inter alia, specifically sought any "surveillance video recordings showing the defendant being moved from any parking lot [or] garage to the booking area of Lynn [p]olice [d]epartment on August 24, 2012[, ] at approximately 9:30 [P.M.]"

         That same day, the prosecutor asked the police department for "[v]ideotape or [p]hotograph(s) related to [the] case." On May 27, 2014, the prosecutor again made a request of the department, this time requesting "[s]urveillance video" and specifically inquiring whether there was "[a]ny [b]ooking video of [the] incident[.]" The police responded to the second request: "[N]ot available." That same day, the prosecutor filed a certificate of compliance certifying that the Commonwealth had satisfied its mandatory discovery obligations pursuant to Mass.R.Crim.P. 14, as amended, 444 Mass. 1501 (2005). In that document, the prosecutor specifically certified that she had provided "[a]ny ...

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