Annmarie Timmins
Concord Monitor
A former Merrimack County jail guard wants the state Supreme Court to overturn his assault convictions against an inmate because he says he was acting in self defense when he shoved the inmate from behind and pulled his legs out from under him while the man was handcuffed.
Cunningham’s public defender, Kimberly Thayer, told the justices during an oral argument yesterday that Cunningham’s conduct was justified because the inmate had been arguing with Cunningham, ignoring his orders and threatening to break Cunningham’s jaw and kill his family.
But is that enough, Justice Linda Dalianis wanted to know, given that the use of self defense requires someone to reasonably fear for the immediate safety of themself or another.
“Is verbal conduct sufficient to trigger self defense?” Dalianis asked Thayer. “It’s usually (triggered by) a physical act.”
Justice James Duggan pressed the question again. “Is noncompliance (with a guard’s order) enough to justify force?” he asked.
Yes and yes, Thayer said. But she quickly added that Cunningham was not responding to only verbal threats and inmate Michael Corey’s insolence that night. Corey had lunged at Cunningham and gotten into a wrestling match with him previously in the night, she said.
“It’s the totality of this case that makes a difference,” Thayer said.
Cunningham, 44, was convicted in Merrimack County Superior Court in May 2008 of two counts of simple assault against Corey. One count charged Cunningham with pushing Corey into a cell from behind, as Corey was walking to the cell. The other count said Cunningham caused Corey to fall by pulling Corey’s legs out from beneath him. Corey’s hands were cuffed behind his back at the time, according to court records.
A jury acquitted Cunningham of a third simple assault charge against Corey, who was brought to the prison that night in December 2006 for drunken driving, according to court records.
Cunningham was sentenced to one month in jail and 100 hours of community service and fired from his job at the Merrimack County jail. Prior to coming to the Boscawen jail, Cunningham had been fired from the Hillsborough County jail in 1996, days after allegedly punching and kicking an inmate there, according to news reports from the time.
Cunningham has since relocated from Franklin to Manchester and works for Labor Ready, according to a financial affidavit he filed with the court.
Prosecutor Janice Rundles of the state attorney general’s office defended Cunningham’s conviction yesterday, telling the justices that the jury saw Cunningham’s conduct on video tape before they convicted him in 2008.
The video showed Cunningham acting out of anger, not fear, she said.
Rundles told justices that Cunningham was the only trial witness who claimed Corey had threatened to kill his family.
The other corrections officers on duty that night testified that they heard Cunningham and Corey exchange heated words but could not recall specific comments. They also testified that Cunningham’s behavior concerned them, she said.
“There was no indication (Corey) was about to use force,” Rundles said. “All the other (corrections officers) said that.”
Rundles didn’t dispute defense claims that Corey was agitated and unhappy about being in jail. Nor did she dispute that he failed to comply with orders during the booking process immediately. But he did eventually comply.
Corey was complying with Cunningham’s orders to go into a holding cell when Cunningham pushed him from behind, Rundles said. And Corey posed no threat to Cunningham when he was knocked to the ground.
At the time, Corey was four to five feet away from Cunningham with his hands cuffed behind his back. He was also backing into a corner as Cunningham approached him.
Among the best evidence at trial, Rundles told justices, was Cunningham’s own defense. He told jurors he was a member of the jail’s “special response team,” which is called in for intense and dangerous situations. He told jurors he loved that kind of work.
Rundles quoted for justices Cunningham’s description of special response work: “It’s a thousand pounds of beef smashing an inmate (into a cell) if they so much as sneeze.”
It’s that attitude, not a fear of his own safety, that prompted Cunningham to assault Corey twice inside the jail.
“He pulled (Corey’s) legs out from under him because he was going to be the authority figure,” Rundles said. “And (Corey) would comply. He acted out of anger and to assert his authority.”
She asked the justices to uphold Cunningham’s convictions.
Copyright 2009 ProQuest Information and Learning