State v. Michael Burkinshaw, 271 A.3d 580

Background

On July 2, 2018 Officer David Turmel responded to a complaint about an "unwanted party" in Newport and encountered Michael Burkinshaw loudly cursing and gesturing at bystanders near a restaurant.
Officer Turmel asked Burkinshaw repeatedly to move away from families; after several refusals he placed his hands on Burkinshaw to escort him; Burkinshaw pulled away and said he would leave on his own but did not.
The officer warned Burkinshaw he would be arrested if he did not leave, then announced the arrest and forcefully grabbed, pushed, and tripped him to the ground; Burkinshaw folded his arms under his body, delaying handcuffing until another officer arrived.
The trial court had granted a motion in limine excluding evidence of prior police contacts, but the prosecutor, in opening, said the officer was "already familiar with" the defendant; the court denied a motion to pass and gave a curative instruction.
The trial court also barred cross-examination attempting to use a police report to establish that Burkinshaw was "disabled," finding the proffer irrelevant and hearsay without proper foundation.
A jury convicted Burkinshaw of resisting arrest; he appealed, arguing (1) the court should have instructed on self-defense to resisting arrest, (2) the court should have passed the case after the opening remark, and (3) the court improperly limited cross-examination about disability.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Burkinshaw)	Held
Whether the trial court erred by refusing to instruct the jury that defendant could resist if officer used excessive force	No instruction required because record contained no evidence of excessive force	An instruction was required because officer made physical contact before or concurrent with announcing arrest (grabbed, pushed, tripped)	Affirmed — no instruction required; evidence showed officer used force only after repeated refusals and was objectively reasonable (no tenuous evidence of excessive force)
Whether the trial court erred in denying a motion to pass after prosecutor said officer was "already familiar" with defendant	The remark was not incurably prejudicial and was cured by a prompt, specific cautionary instruction	The remark violated the motion in limine and was incurably prejudicial, requiring a pass or mistrial	Affirmed — trial justice properly exercised discretion, found prejudice curable, and gave timely effective curative instruction
Whether the trial court abused its discretion by limiting cross-examination to refresh the officer’s recollection with a police report showing defendant as "disabled"	The police report was hearsay, lacked foundation, and was not relevant to officer’s observations at the time of the arrest	Disability status was relevant to whether officer used excessive force and could be used to refresh recollection	Affirmed — court did not abuse discretion: defense failed to lay foundation; the report postdated the encounter and would not make officer’s use-of-force more/less probable

Key Cases Cited

State v. Hurteau, 810 A.2d 222 (R.I. 2002) (self-defense instruction required only if evidence police used excessive force)
State v. Ramsdell, 285 A.2d 399 (R.I. 1971) (arrestee may defend against excessive force despite statutory prohibition on resisting arrest)
State v. Gelinas, 417 A.2d 1381 (R.I. 1980) (arrestee must submit peacefully and seek remedy in court unless officer used excessive force)
State v. Tavarozzi, 446 A.2d 1048 (R.I. 1982) (if officer used reasonable force, self-defense to resisting arrest is unavailable)
Graham v. Connor, 490 U.S. 386 (U.S. 1989) (use-of-force claims are judged by objective reasonableness)
State v. Soler, 140 A.3d 755 (R.I. 2016) (appellate review of trial justice’s decision not to give a self-defense instruction)
State v. Isom, 251 A.3d 1 (R.I. 2021) (jury-instruction review is de novo and instructions are read as a whole)
State v. Presler, 731 A.2d 699 (R.I. 1999) (a writing need not be admissible to be used to refresh a witness’s recollection)
State v. Briggs, 886 A.2d 735 (R.I. 2005) (foundational requirement for refreshing recollection: witness must be unable to remember)
State v. Tempest, 651 A.2d 1198 (R.I. 1995) (test for when prosecutorial remarks create incurable prejudice)
State v. LaPlante, 962 A.2d 63 (R.I. 2009) (if prejudice is curable, the trial justice must give a timely, effective cautionary instruction)