Commonwealth v. Dobbins

79 Mass.App.Ct.555 (2011)
Appeals Court of Massachusetts
May 23, 2011

Arrest resistance, substantial risk of a miscarriage of justice, defendant’s pre and postarrest conduct.

A jury found a defendant guilty of resisting arrest. Defendant appealed from the decision arguing that judge’s failure to give either a limiting instruction regarding which of the defendant’s actions could constitute resisting arrest, or a unanimity instruction, resulted in a substantial risk of a miscarriage of justice.

The Appeals Court upheld the trial’s court decision.

Facts:

On May 3, 2003, a neighbor of the defendant alerted Woburn police that a man he believed to be the defendant was driving erratically on their street. When the police observed the reported vehicle in the driveway of the defendant's house, the defendant was seated inside the vehicle, talking on the telephone. A police officer approached, smelled the odor of alcohol, and saw several cans of beer in the car. The defendant's speech was slurred.

The officer followed the defendant when the latter left the car and began to walk away from the officer, toward the house. Being concerned that the defendant was intoxicated and might later attempt to drive the vehicle, the officer informed the defendant that he was “going to be arrested.” When the officer took hold of the defendant's arm, the defendant began to flail his arms. Another officer arrived and, while the officers attempted to handcuff the defendant, he started to “fight” them by “swinging with his left hand and trying to push away and pull away and get away” as well as “punching with a fist” and “swinging” in the directions of the officers. One officer sustained a finger laceration and bruised elbow during the struggle.
The officers subdued the defendant with pepper spray, placed him on the ground, handcuffed him, and placed him in the back of the cruiser. On the way to the police station, the defendant kicked the door and window of the cruiser repeatedly. Once in the station, during booking, the defendant remained belligerent and continued swinging his fist. Due to this behavior, the defendant was placed in a cell before the booking process had been completed.
Issue 1: When does the crime of resisting arrest occur? Can resisting arrest conviction rest on postarrest conviction of the defendant?
The crime of resisting arrest occurs at the time the arrest is “effected,” i.e., when there “is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.’ ” Commonwealth v. Grandison, 433 Mass. 135, 145, 741 N.E.2d 25 (2001) (Grandison ), quoting from Commonwealth v. Cook, 419 Mass. 192, 198, 644 N.E.2d 203 (1994).
In light of this, “a resisting arrest conviction can, in no way, rest on postarrest conduct.” Grandison, supra. According to G.L. c. 268, § 32B, “A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another....”

Here, the defendant's arrest was effected at his house, in a process that continued until police gained control of the defendant and placed him in the cruiser Commonwealth v. Ocasio, 71 Mass.App.Ct. 304, 306, 311, 882 N.E.2d 341 (2008) (process of “effecting” arrest continued until defendant was placed in cruiser); Commonwealth v. Knight, 75 Mass.App.Ct. 735, 739, 916 N.E.2d 1011 (2009) (Knight ) (effecting an arrest “ends when the person is fully detained by his submission to official force or placed in a secure location from which he can neither escape nor harm the police officer or others nearby ”.)


Since the defendant's arrest was fully effected by the time he was placed in the cruiser, the Commonwealth's argument that the defendant's conduct at the police station was part of a pattern of “continuing conduct” of resisting arrest is not persuasive.
Issue 2:
Did trial court's failure to give instruction limiting what jury could consider to defendant's prearrest conduct at defendant's home, and before he was placed in police cruiser result in substantial risk of a miscarriage of justice?
While the judge should have instructed the jury to consider only prearrest conduct in evaluating the resisting arrest charge, the facts here, when viewed in the context of a substantial risk analysis, are adequate to support the ultimate conclusion that the jury relied on “solely the events at the scene in reaching their verdict.” Grandison, supra at 147, 741 N.E.2d 25. Unlike in Grandison, where the prosecutor emphasized the defendant's postarrest conduct in her closing statement, here the prosecutor confined her arguments to prearrest conduct and made no any mention of the postarrest conduct in the police cruiser or station making the jury to rely solely on events at prearrest scene.
According to the facts at hand, having concluded with reasonable certainty that the jury relied solely on the defendant's prearrest conduct in reaching their verdict on the resisting arrest charge, we need not reach the defendant's argument that the judge erred in failing to give a unanimity instruction thus causing no substantial risk of a miscarriage of justice.
Judgment affirmed.

Prepared by SF