State v. Michael Burkinshaw ( 2022 )

March 22, 2022
Supreme Court
No. 2019-153-C.A.
(N3/19-34A)
State :
v. :
Michael Burkinshaw. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2019-153-C.A.
(N3/19-34A)
State :
v. :
Michael Burkinshaw. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The defendant, Michael Burkinshaw (defendant
or Mr. Burkinshaw), appeals from a Superior Court judgment of conviction and
commitment for one count of resisting arrest. Mr. Burkinshaw assigns the following
three errors with respect to the trial proceedings: (1) The trial justice committed
reversible error by failing to instruct the jury on a defense to the charge of resisting
arrest; (2) the trial justice committed reversible error by failing to pass the case
following the state’s inclusion of certain remarks in its opening statement; and (3)
the trial justice committed prejudicial error by refusing to allow a certain line of
questioning on cross-examination of the arresting officer. For the reasons stated
herein, we affirm the judgment of the Superior Court.
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Facts and Procedural History
On July 2, 2018, Michael Burkinshaw was arrested in Newport, Rhode Island,
and charged with three misdemeanors: disorderly conduct, resisting arrest, and
vandalism. Ultimately, the disorderly conduct and vandalism charges were
dismissed. However, the state proceeded against Mr. Burkinshaw on the charge of
resisting arrest, which culminated in a jury trial in the Superior Court.
Prior to trial, Mr. Burkinshaw challenged the admissibility of his prior
contacts with the police. The trial justice granted defendant’s motion in limine on
this evidentiary matter. Nevertheless, in its opening statement, the state referenced
the arresting officer’s familiarity with Mr. Burkinshaw. Defense counsel moved to
pass the case, arguing that the state had prejudicially alluded to Mr. Burkinshaw’s
prior contacts with the police, in violation of the trial justice’s ruling on his motion
in limine. The trial justice denied the motion to pass and offered a cautionary
instruction.
After the trial justice denied the motion to pass, the trial proceeded. Central
to the state’s case at trial—and to this appeal—are the circumstances surrounding
the arrest for which Mr. Burkinshaw was charged with resisting. The following
testimony was elicited at trial. On July 2, 2018, at around 12:30 p.m., a patrol officer
of the Newport Police Department, Officer David Turmel, was dispatched to 76
Broadway in Newport, near the Paramount Apartments, to manage “an unwanted
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party.” As Officer Turmel arrived in the area in his police cruiser, he approached
and was able to identify Mr. Burkinshaw near an establishment called “Scratch
Restaurant.” From Officer Turmel’s perspective, Mr. Burkinshaw was “[a]ngry,
animated, waving his arms and pointing, swearing, extremely vulgar.” More
specifically, he observed Mr. Burkinshaw directing vulgarities toward a woman,
pointing, cursing, and using extremely vulgar language. Officer Turmel testified
that there were several families with children around, so he “told [Mr. Burkinshaw]
specifically there are several children around, please stop using that language. Let’s
walk over here and talk about why I was dispatched.”
According to Officer Turmel, Mr. Burkinshaw continued “nonstop cursing,
waving his arms, pointing, [using] just extremely vulgar language[,]” and he ignored
Officer Turmel’s request to move away from the area. Officer Turmel told Mr.
Burkinshaw to move away from the area four or five more times before placing his
hands on Mr. Burkinshaw to escort him away from the Scratch Restaurant area.
Officer Turmel testified that Mr. Burkinshaw then pulled his arms away from Officer
Turmel, telling the officer not to touch him and saying he would leave on his own.
Officer Turmel acknowledged on cross-examination that, at the time of this first
physical contact, Mr. Burkinshaw was not under arrest.
Despite Mr. Burkinshaw saying he would leave the area on his own, he did
not. Officer Turmel then told him, “[Y]ou can leave on your own right now or you’re
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going to be arrested.” After again stating that he would leave on his own, Mr.
Burkinshaw still did not leave but “continued to stand there and point, curse, be
extremely vulgar and just act[] in kind of a violent manner.” According to Officer
Turmel’s testimony on direct examination, it was only at that point that he
announced that Mr. Burkinshaw was under arrest and started to “forcefully escort[]
him away from the families and children[.]” On cross-examination, Officer Turmel
conceded that he forcibly grabbed Mr. Burkinshaw’s arm while moving him away.
Counsel for Mr. Burkinshaw also elicited further testimony from Officer Turmel
that, at a prior hearing, the officer had testified that he had placed two hands on Mr.
Burkinshaw, one at the shoulder and one at the rib, and had “pushed” Mr.
Burkinshaw, either simultaneous with the announcement of his arrest or immediately
before.
Officer Turmel testified that, at the time of this second physical contact, which
occurred as he informed Mr. Burkinshaw that he was under arrest, Mr. Burkinshaw
again “flailed his arms” and “aggressively” attempted to make his way back toward
the restaurant. Officer Turmel testified that he tripped Mr. Burkinshaw to bring him
to the ground and effectuate the arrest. Officer Turmel recounted that Mr.
Burkinshaw then placed his arms underneath his own body so that his arms could
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not be restrained behind him by the officer.1 Because of this, Officer Turmel could
not immediately place Mr. Burkinshaw in handcuffs, but waited until another officer
arrived to do so.
The trial justice disallowed cross-examination of Officer Turmel on one
matter: the disability status of Mr. Burkinshaw at the time of his arrest. Specifically,
defense counsel sought to cross-examine Officer Turmel on the existence of Mr.
Burkinshaw’s disability by using a police report to refresh Officer Turmel’s
recollection on the issue. The trial justice rejected counsel’s arguments and denied
defense counsel, on grounds of relevance, hearsay, and prejudice, his attempt to
establish through the police report that Mr. Burkinshaw was disabled.
The state rested after the testimony of Officer Turmel. Mr. Burkinshaw
moved for judgment of acquittal pursuant to Rule 29 of the Superior Court Rules of
Criminal Procedure, which the trial justice denied. Thereafter, Mr. Burkinshaw
rested and renewed the motion for judgment of acquittal. The trial justice denied the
renewed motion and proceeded to instruct the jury.
Relevant to this appeal, the trial justice instructed the jury as follows regarding
the use of force: “And it is well established that in making an arrest, an officer has
1
Officer Turmel confirmed during cross-examination that at no point during his
interaction with Mr. Burkinshaw did Mr. Burkinshaw try to strike him; take a bladed
stance with him; threaten to assault him; threaten to hit him, kick him, spit at him;
try to run away; or use the bike he was holding as a weapon.
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the right to use the amount of force that is reasonably necessary in order to properly
perform his duty.” Defense counsel objected to this instruction, arguing that it would
have been appropriate to further instruct that a defendant has a right to defend
himself if there is evidence of excessive force, because, according to defense
counsel,
“a defendant has the right to use some amount of force to
resist an arrest where an officer is using unreasonable
force, * * * that is a question for the jury, the
reasonableness of the force of the officer. It’s a fact that
the jury should be required to find. If they do find that it
is unreasonable, then they further should be able to find
whether or not the defendant’s conduct in resisting the
arrest was reasonable and justified. They weren’t given
that instruction, although they were advised that an officer
may only use reasonable force, they weren’t advised what
to do if they do find that unreasonable force was
applied[.]”
The trial justice noted the objection but, citing State v. Hurteau, 810 A.2d 222(R.I. 2002), concluded that Mr. Burkinshaw was not entitled to the further instruction
because there had been no evidence to indicate that the arresting officer had used
excessive force against Mr. Burkinshaw.
After closing arguments and deliberations, the jury returned a guilty verdict.
The trial justice subsequently sentenced Mr. Burkinshaw to one year of incarceration
at the Adult Correctional Institutions, with forty-five days to serve and 320 days
suspended, with one year of probation. A judgment of conviction and commitment
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entered on April 30, 2019. Mr. Burkinshaw timely appealed. Further facts will be
supplied as they are germane to the errors assigned on appeal.
Discussion
Mr. Burkinshaw specifies three errors committed by the trial justice. First, he
maintains that the trial justice committed reversible error by failing to instruct the
jury on a defense to the charge of resisting arrest. Second, he maintains that the trial
justice committed reversible error by failing to pass the case despite the state’s
inclusion of certain prejudicial remarks in its opening statement. Finally, he
challenges the trial justice’s decision to limit the scope of cross-examination of
Officer Turmel, resulting in the exclusion of evidence on Mr. Burkinshaw’s
disability status. We address each argument in turn.
Jury Instructions on Defense to Resisting Arrest
This Court reviews jury instructions de novo. E.g., State v. Isom, 251 A.3d 1,
6 (R.I. 2021). We examine the instructions in their entirety and will not view a
challenged portion in isolation from the context of the instructions as a whole; in
doing so, we seek to “ascertain the manner in which a jury of ordinary intelligent lay
people would have understood them.” Id. (quoting State v. Ros, 973 A.2d 1148, 1166
(R.I. 2009)). Where a trial justice determines that an instruction related to self-
defense is not applicable, this Court conducts an independent review of the record
and assesses “whether the trial justice’s concept on self-defense was correct.” State
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v. Soler, 140 A.3d 755, 759 (R.I. 2016) (brackets omitted) (quoting State v. Pineda,
13 A.3d 623, 631 (R.I. 2011)). We examine the evidence in the light most favorable
to the defendant, Isom, 251 A.3d at 6, but ultimately “[w]e will affirm if the
instructions adequately covered the law and neither reduced nor shifted the state’s
burden of proof.” Soler, 140 A.3d at 760 (brackets omitted) (quoting State v. Martin,
68 A.3d 467, 473 (R.I. 2013)).
General Laws 1956 § 12-7-10 makes it unlawful to “use force or any weapon
in resisting a legal or an illegal arrest by a peace officer[.]” As such, “an arrestee
must ‘submit peacefully and, if he has been unlawfully arrested, pursue his remedy
in the courts.’” Hurteau, 810 A.2d at 225 (alterations omitted) (quoting State v.
Gelinas, 417 A.2d 1381, 1385 (R.I. 1980)). Nevertheless, an arrestee maintains the
right to defend himself against use of excessive force. Id.; see State v. Ramsdell, 109
R.I. 320, 327, 285 A.2d 399, 404 (1971) (holding that the statute abolishing the
common law right to resist unlawful arrest did not abrogate an arrestee’s right to
defend against an arresting officer’s use of excessive force). Whether a defendant’s
right to defend himself and resist arrest exists therefore “naturally depends on
whether there was excessive force in effectuating the arrest.” Hurteau, 810 A.2d at
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225. However, “[i]f the officer used reasonable force, the defense of self-defense is
not available.” State v. Tavarozzi, 446 A.2d 1048, 1051 (R.I. 1982).
A trial justice is compelled to instruct the jury on the principles of self-defense
“when there is evidence, ‘however tenuous or incredible,’ that the police used
excessive force.” Hurteau, 810 A.2d at 225; Gelinas, 417 A.2d at 1384. However,
the question of whether force is excessive depends on whether the arresting police
officer used “only [that] force [which was] necessary to effectuate [the] arrest.”
Ramsdell, 109 R.I. at 326, 285 A.2d at 404. The inquiry is objective: “[T]he focus
is on ‘whether the officers’ actions are objectively reasonable[.]’” State v. Querido,
229 A.3d 410, 418 (R.I. 2020) (quoting Graham v. Connor, 490 U.S. 386, 397
(1989)).
In the instant case, Mr. Burkinshaw maintains that the trial justice should have
instructed the jury on the defense of self-defense to resisting arrest because Officer
Turmel testified that he first put his hands on Mr. Burkinshaw before telling Mr.
Burkinshaw that he was under arrest; grabbed Mr. Burkinshaw’s arm; placed two
hands on Mr. Burkinshaw and pushed him; tripped Mr. Burkinshaw to the ground;
and they continued to struggle once Mr. Burkinshaw was on the ground. Mr.
Burkinshaw contends that the trial justice’s reliance on Hurteau was misplaced,
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noting that, unlike the defendant in Hurteau, Mr. Burkinshaw neither acted in a
violent manner nor threatened violence on the afternoon in question.
We recognize the import of Mr. Burkinshaw’s—and other defendants’—basic
right to defend their person against an overzealous police officer. See Ramsdell, 109
R.I. at 327, 285 A.2d at 404. However, after independently examining the record in
the light most favorable to Mr. Burkinshaw, we are satisfied that “the trial justice’s
concept on self-defense was correct[,]” Soler, 140 A.3d at 759 (brackets omitted)
(quoting Pineda, 13 A.3d at 631), and that there was no evidence, however tenuous
or incredible, that Officer Turmel used more force than was necessary to effectuate
Mr. Burkinshaw’s arrest. See Hurteau, 810 A.2d at 225.
There is no dispute that Officer Turmel used some force against Mr.
Burkinshaw. Upon encountering an angry and animated Mr. Burkinshaw in front of
Scratch Restaurant, Officer Turmel asked him to move away from the individuals
present, including families with young children. Prior to placing Mr. Burkinshaw
under arrest, Officer Turmel put his hands on Mr. Burkinshaw and attempted to
escort Mr. Burkinshaw away from the restaurant and the individuals at whom Mr.
Burkinshaw was shouting. The officer did so only after Mr. Burkinshaw ignored
four or five requests for him move away on his own. After Mr. Burkinshaw pulled
his arms away, preventing a successful escort without further escalation, Officer
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Turmel warned Mr. Burkinshaw that if he did not move, Officer Turmel would place
him under arrest.
Although Mr. Burkinshaw said he would leave the area, he once again refused
to move. Consequently, either immediately before or simultaneous to announcing
that Mr. Burkinshaw was under arrest, Officer Turmel made physical contact with
Mr. Burkinshaw for the second time when he forcibly grabbed Mr. Burkinshaw and
pushed him away from the individuals at whom Mr. Burkinshaw continued to shout.
Finally, Officer Turmel utilized a trip to bring Mr. Burkinshaw to the ground and
effect the arrest after Mr. Burkinshaw attempted to make his way back toward the
restaurant.2 Once on the ground, Mr. Burkinshaw placed his arms underneath his
body; Officer Turmel struggled to place Mr. Burkinshaw in handcuffs as he waited
for another officer to assist him.
With these undisputed facts in mind, in our view, “the instructions adequately
covered the law and neither reduced nor shifted the state’s burden of proof.” Soler,
140 A.3d at 760 (brackets omitted) (quoting State v. Martin, 68 A.3d 467, 473 (R.I.
2013)). Despite Mr. Burkinshaw’s arguments to the contrary, the principles
2
We note that, on appeal, counsel for Mr. Burkinshaw argues that his trial defense
counsel elicited testimony regarding the chronology of the arrest, testimony that
defendant on appeal characterizes as Officer Turmel “conced[ing] that he did not tell
Mr. Burkinshaw that he was under arrest until after he had tripped him.” We
acknowledge this argument, but nevertheless reject this characterization of the
record, even viewing the evidence in the light most favorable to defendant.
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enunciated in Hurteau are clearly applicable: The evidence, viewed in the light most
favorable to Mr. Burkinshaw, reveals only that Officer Turmel used reasonable force
in furtherance of his duties and only after Mr. Burkinshaw refused to comply with
repeated requests to move away from the angry encounter at Scratch Restaurant. See
Hurteau, 810 A.2d at 225 (upholding a conviction for resisting arrest where “[t]he
uncontradicted evidence show[ed] that the police did not apply any force to [the]
defendant until he refused to cooperate with their orders”); see also Graham, 490
U.S. at 396 (“[T]he right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion[.]”). The record is devoid
of evidence that Officer Turmel used excessive force such that Mr. Burkinshaw was
entitled to an instruction on the defense to resisting arrest. Accordingly, we perceive
no error in the trial justice’s decision not to instruct the jury on the defense of self-
defense to the charge of resisting arrest.
Motion to Pass
In his second assignment of error, Mr. Burkinshaw argues that the trial justice
committed reversible error by denying his motion to pass. As discussed previously,
in its opening statement, the state commented on a matter that had been addressed
by the trial justice’s ruling on defendant’s motion in limine, which excluded any
reference to Mr. Burkinshaw’s prior contacts with the police. Specifically, the
prosecutor said, “As [the arresting officer] was responding to the scene, he happened
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to see the defendant, who he was already familiar with[.]” Defense counsel
requested a sidebar conference and moved to pass the case: He argued that stating
that the arresting officer “was already familiar with” Mr. Burkinshaw was incurably
prejudicial. The trial justice acknowledged that the statement violated the ruling on
defendant’s motion in limine, but concluded that the statement was not incurably
prejudicial because there was nothing specifically said about police contacts. Mr.
Burkinshaw objected to the giving of a cautionary instruction, arguing that an
instruction would only highlight the prejudice resulting from the comment.
Following the sidebar conference, the trial justice immediately offered a cautionary
instruction, telling the jury: “Ladies and gentlemen, whether or not the Officer and
Mr. Burkinshaw knew each other is completely irrelevant to the trial here. It should
be completely disregarded and it’s stricken from the record. Okay. So erase that
from your mind.”
When reviewing a ruling on a motion to pass, this Court will reverse only if
the trial justice’s ruling was clearly wrong. E.g., State v. Gonzalez, 254 A.3d 813,
821 (R.I. 2021). This Court gives great weight to the sound discretion of the trial
justice in these matters, because the trial justice “enjoys a ringside seat at the trial”
and therefore is in the best posture to determine the effect of an inappropriate remark
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or action. Id. (quoting State v. Lynch, 854 A.2d 1022, 1033 (R.I. 2004)); see also
State v. LaPlante, 962 A.2d 63, 70 (R.I. 2009).
A trial justice need not pass the case at the occurrence of any potentially
prejudicial statement or event. E.g., State v. Bolduc, 822 A.2d 184, 186 (R.I. 2003).
Rather, in the context of an allegedly prejudicial remark made by a prosecutor, the
trial justice must evaluate whether the prejudicial effect, if any, is incurable. E.g.,
State v. Tempest, 651 A.2d 1198, 1207 (R.I. 1995). “Incurable prejudice exists if
the trial justice determines that the remark, within its factual context, ‘so inflames
the passions of the jury as to prevent their calm and dispassionate examination of the
evidence.’” Id. (quoting State v. Brown, 522 A.2d 208, 211 (R.I. 1987)). This Court
does not have a “fixed rule of law” to evaluate whether a remark created incurable
prejudice, but will “assess the probable effect of the remark within the factual
context of the evidence presented.” Id.Here, defendant has not shown that the trial justice was “clearly wrong” to
deny his motion to pass the case. See Gonzalez, 254 A.3d at 821. Though the trial
justice conceded that the prosecutor’s statement violated the motion in limine, the
trial justice properly evaluated the degree to which the comment might be
inflammatory and the fact that the statement did not include any mention of specific
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police contacts. The trial justice thereafter exercised his sound discretion in
promptly delivering a curative instruction and declining to pass the case.
The trial justice was not clearly wrong to conclude that the statement, though
prejudicial, would not prevent the jury from conducting a “calm and dispassionate
examination of the evidence” if properly instructed. LaPlante, 962 A.2d at 71(quoting State v. Parkhurst, 706 A.2d 412, 427 (R.I. 1998)). As the individual “in
the best posture” to make that determination, we decline to disturb that discretion.
Gonzalez, 254 A.3d at 821; cf. State v. Usenia, 599 A.2d 1026, 1032 (R.I. 1991)
(holding that trial justice could properly instruct jury to disregard argumentative
narration in state’s opening statement despite having determined the statement was
impermissible and prejudicial).
Moreover, our review of the record reveals no compelling reason for the trial
justice to have passed the case. First, we are satisfied that the statement was not
incurably prejudicial. The statement by the prosecutor was fleeting and interspersed
with other permissible narration regarding a description of the scene and, more
saliently, Officer Turmel’s reason for dispatch, which was to respond to a complaint
against Mr. Burkinshaw himself. Moreover, Officer Turmel shortly thereafter
testified that he “was dispatched for an unwanted party[,]” and that, as he arrived,
he was “approached by the party that [he] was dispatched for[,]” whom he identified
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at trial as Mr. Burkinshaw. He then testified that he “had paperwork for the
defendant.”
Thus, while the state’s opening statement was the most direct reference to
Officer Turmel’s familiarity with Mr. Burkinshaw, that statement was in fact given
further context in the evidence ultimately presented, context to which Mr.
Burkinshaw did not object and which did not include any prejudicial reference to
any prior contacts with the police or a criminal record. See Tempest, 651 A.2d at
1207 (“This [C]ourt [will] assess the probable effect of the remark within the factual
context of the evidence presented.”); cf. State v. Casas, 792 A.2d 737, 740 (R.I.
2002) (affirming trial justice’s decision to declare a mistrial where the state
inappropriately narrated in its opening statement that the police had been
investigating the defendant for years); State v. Costa, 111 R.I. 602, 608-10, 306 A.2d
36, 39-40 (1973) (reversing trial justice’s refusal to pass the case where testimony
directly discussed the defendant’s criminal record).
Second, the trial justice promptly delivered a specific instruction that Officer
Turmel’s knowledge of Mr. Burkinshaw was irrelevant, should be completely
disregarded, and that that testimony was stricken. There is no indication in the
record that the jury did not obey this specific instruction as given. Cf. State v. McRae,
31 A.3d 785, 791 (R.I. 2011) (“Unless some indication exists that the jury failed to
obey the cautionary instruction given by the trial justice, we must assume that the
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jury followed the instruction as given.”). Accordingly, we are confident the trial
justice’s timely and specific cautionary instruction was sufficient to dispel any
prejudice the state’s remark produced such that the state’s comment did not affect
the jury’s ultimate verdict.
Finally, though defendant argues on appeal that the trial justice actually
emphasized the prejudice by giving the curative instruction, we are mindful of this
Court’s clear precedent that “[i]f the trial justice determines that the prejudice is
curable, he or she must issue a timely and effective instruction.” LaPlante, 962 A.2d
at 71 (emphasis added) (quoting State v. Toole, 640 A.2d 965, 974 (R.I. 1994)).
Accordingly, we hold that the trial justice offered a timely and effective cautionary
instruction to the jury, and therefore did not err by denying Mr. Burkinshaw’s motion
to pass the case.
Limitation of Cross-Examination
In his final assignment of error, Mr. Burkinshaw argues the trial justice erred
in limiting cross-examination of the arresting officer as to Mr. Burkinshaw’s
occupational status as disabled, by using a police record to refresh the officer’s
recollection. The police report indicated that Mr. Burkinshaw’s occupation status
was “disabled[.]” The state objected to that line of questioning on grounds of
relevance, noting that the information was coming only from the police report, not
from Officer Turmel’s knowledge. The state further argued that the police report
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simply listed Mr. Burkinshaw’s occupation as disabled, giving no further
information on whether this disability status stemmed from a physical or mental
disability. In response, Mr. Burkinshaw asserted that his disability related to his
theory at trial that Officer Turmel had used excessive force. The trial justice rejected
Mr. Burkinshaw’s argument. The trial justice explained that, while Mr. Burkinshaw
might be able to testify as to his disability status, attempting to establish Mr.
Burkinshaw’s disability status through the police report was inappropriate without
any foundation as to the nature of the disability and how it related to resisting arrest.
He concluded that the information contained in the police report was hearsay,
irrelevant, and unduly prejudicial. On appeal, Mr. Burkinshaw maintains that the
police report need not be admissible to be used as a device to refresh Officer
Turmel’s recollection, and that the evidence that he had sought to elicit was relevant
to his defense of self-defense to resisting arrest.
This Court reviews a trial justice’s restriction on the scope of cross-
examination for clear abuse of discretion. E.g., State v. McManus, 990 A.2d 1229,
1234 (R.I. 2010). This Court has long held that any writing or object may be used
to refresh a witness’s recollection, even if not itself admissible. E.g., State v. Presler,
731 A.2d 699, 704 (R.I. 1999). Nevertheless, the proffering party must still establish
the foundational requirement that the witness is “unable to remember something of
relevance to the matter being litigated.” State v. Briggs, 886 A.2d 735, 746 (R.I.
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2005) (quoting Presler, 731 A.2d at 704). Relevant evidence is evidence “having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” R.I. R. Evid. 401.
Our review of the record reveals that defense counsel failed to lay a foundation
that the evidence about which he sought to refresh Officer Turmel’s recollection was
relevant and admissible in this case.3 Defense counsel proffered at trial that the
evidence of Mr. Burkinshaw’s disability status was relevant to whether Officer
Turmel used excessive force.
Nevertheless, in questioning Officer Turmel, Mr. Burkinshaw established
that Officer Turmel only learned of his disability status because the officer “had the
police department obtain information about [the] arrestee’s * * * occupation.” Thus,
the information in the police narrative regarding Mr. Burkinshaw’s disability status
was obtained after the incident that purportedly involved excessive force, and
refreshing Officer Turmel’s recollection on this information would not have
provided evidence that would have made it more or less likely that Officer Turmel’s
actions at the time of the arrest were unreasonable. Cf. Tavarozzi, 446 A.2d at 1051(reversing trial justice’s exclusion of testimony which would have helped establish
3
Because we determine that the evidence sought to be admitted via cross-
examination was inadmissible on grounds of relevancy, we need not address the trial
justice’s other bases for excluding the evidence.
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the defendant’s physical condition after an allegedly violent encounter with a police
officer and which was clearly probative of the amount of force to which a police
officer subjected her).
Though Mr. Burkinshaw maintains on appeal that his trial counsel sought to
question Officer Turmel on his knowledge and observations of Mr. Burkinshaw’s
physical condition outside of Scratch Restaurant, this was neither the foundation laid
nor the argument made by trial counsel. Moreover, the trial justice’s ruling did not
preclude defense counsel from establishing any physical condition that Officer
Turmel may have observed himself during his interaction with Mr. Burkinshaw on
July 2, 2018. Instead, the trial justice precluded Mr. Burkinshaw from
“establish[ing] that he’s disabled through that police report.”
Accordingly, the trial justice did not abuse his discretion or commit reversible
error by limiting the scope of defendant’s cross-examination on the issue of his
occupational status as disabled.
Conclusion
For the foregoing reasons, we affirm the judgment of conviction of the
Superior Court and remand the record in this case.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Michael Burkinshaw.
No. 2019-153-C.A.
Case Number
(N3/19-34A)
Date Opinion Filed March 22, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Newport County Superior Court
Judicial Officer from Lower Court Associate Justice Brian Van Couyghen
For State:
Owen Murphy
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Michael G. Ewart
Office of the Public Defender
SU-CMS-02A (revised June 2020)