Commonwealth vs. Luzander Montoya, June 15, 2010
Resisting Arrest, Flight Creating Substantial Risk of Injury to Police
Facts and Procedural History
While on patrol late at night in September, 2005, two uniformed police officers saw the defendant riding a bicycle. The officers testified that they saw the defendant extend his arm and fire three gunshots. After seeing this, and with the intention to take the defendant into custody, the officers activated their cruiser lights and shouted at the defendant to stop. A chase ensued which ended temporarily when the defendant stopped and ran behind some stairs. The officers exited their cruiser with guns drawn and twice ordered the defendant to raise his hands and come out. Instead, the defendant ran off and the officers pursued on foot until the defendant ran into a parking lot near a canal. The lot was dark and although the canal was fenced off, a bent part in the fence allowed the defendant a place over which to jump. The defendant testified that when he jumped over the fence, he thought there was land on the other side, but to his surprise there was a drop of approximately twenty to twenty-five feet into shallow water and muck. The officers did not follow him over the fence, but told the defendant that he was under arrest.
Creation of Substantial Risk of Injury to Police, Resisting Arrest
The pertinent part of G.L. c. 268, § 32B (a) states,
"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 . . . using any other means which creates a substantial risk of causing bodily injury to such police officer or another."
In this case the defendant conceded that the officers were effecting an arrest when he fled from them and that he ran until the chase ended when he jumped in the canal. His only argument is that it was error for the judge to deny his motion for a required finding of not guilty because his flight did not create a substantial risk of bodily harm to the police.
The SJC first stated that according to the Statute and the Model Penal Code, resisting arrest is committed when “a person creates a substantial risk of bodily injury to the police”. The defendant argued that because the police did not jump over the fence after him they did not expose themselves to any risk of bodily injury, and that neither officer testified that they felt they were in danger.
The court rejected those arguments stating that placing the burden of whether a risk was created on the officer’s behavior rather than on the person who created it would go against the statutory language. Furthermore that whether the officers were subjectively aware of the risk is unnecessary to determine whether the defendant has created a substantial risk. Any argument about whether the officers were actually subject to the risk (the fact that they did not attempt to climb over the fence) is also irrelevant because the focus is only on the creation of the risk.
The court then cited Commonwealth v. Grandison, 433 Mass. 135, 144- 145 (2001), and its analysis that because Grandison's stiffening of his arms and his momentarily breaking free of an officer's grip "could have caused one of the officers to be struck or otherwise injured," he created a risk of causing bodily injury within the meaning of the statute.
The SJC concluded that viewing these circumstances in the light most favorable to the Commonwealth, a rational jury could have concluded that the defendant created a substantial risk of bodily injury to the officers, therefore the judge properly denied the motion and renewed motion for required finding of not guilty.
- Prepared by AEK
