Commonwealth v. Cullen (May 31, 2011)
Docket No. 10 – P – 1399.
Appeals Court of Massachusetts.
The defendant was convicted of stalking his former therapist. He appeals from that judgment the judge erred in denying his motions to suppress evidence and for a required finding of not guilty.
Facts: Robert Nazarro, a therapist at the Counseling and Psychotherapy Center (CPC), treated the defendant from December, 2006 to August, 2008. In 2009 over an eight-month period, the CPC office began to receive 25 anonymous mailings. The mailings contained newspaper articles, including several critical of sex offender treatment programs, a poster visually depicting numerous sexual positions etc. The director of CPC opened all mailings and uncovered the defendant’s identity. He finally informed Nazarro of the correspondence. Upon knowing the mailings, Nazarro was shocked and contacted the police.
The officer took the defendant into custody. During the booking process, officer conducted an inventory search to ensure that he did not possess contraband. The search revealed several copies of a newspaper article, and a list of names, including the director of CPC.
Issue1: Whether 25 mailings constitute “a pattern of conduct or series of acts” to support a finding of stalking.
Yes. To support a stalking under G.L. c. 265, § 43(a), the Commonwealth must prove that a person willfully and maliciously engaged in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cuase a reasonable person to suffer substantial emotional distress. Even though the victim was exposed to the mailings in bulk on one sole occasion, the statute does not require each act in the series or pattern to produce the result separately. The twenty-five separate mailings over a period of eight months satisfies the requisite pattern or series.
Issue2: Whether there is sufficient evidence of a targeted threat to constitute a requisite threat under the statute.
Yes. The statute provides that the Commonwealth must prove that a person makes a threat with the intent to place that person in imminent fear of death or bodily injury. The court does not recognize the generalized complaints about the workings of an organization. However, here the mailings were focused on the victim, and sufficiently explicit in the threatening nature of their message. The threats were more than enough to place a reasonable person in imminent fear of death or bodily harm and induce him to suffer substantial emotional distress.
Issue3: Whether the police officer was entitled to remove and unfold papers found on the defendant during patfrisk conducted during booking process.
Yes. The police officer was not required to ignore materials that obviously related to the charges underlying the arrest. No purpose is served by requiring him to do so.
Judgment affirmed.
Prepared by YK
Tuesday, May 31, 2011
Thursday, May 26, 2011
Com v. Carey
Commonwealth v. Carey (May 26, 2011)
Docket No. 09 – P – 1832.
Appeals Court of Massachusetts.
The defendant was convicted of armed home invasion, assault and battery and attempting to murder the victim by strangulation.
Facts: The victim opened the door for the defendant, whom she knew as her friends’ ex-husband. The defendant entered and asked where her husband was. The victim said he was not there. The victim opened the door for him to leave but he did not leave. Instead, he took a necktie, put it around her neck and began to pull the ends. He kicked her legs, and she fell on to the floor. The defendant continued to pull harder and harder. The victim asked help for her son. Her son got a knife from the kitchen and stabbed the defendant in the back. The victim ran out to the back yard and ran to the home of neighbors. The neighbor called police. As part of their investigation, police conducted a forensic examination of the defendant’s computer. The police found “400 or more” photographs “that were strangulation-oriented,” and eight were offered and received in evidence. The police also searched the defendant’s computer for the term “asphyxia” and found 978 “hits” and 47 files. A 90-second video clip depicting strangulation was found too.
Issue1: Whether the defendant’s contention that his intent was to have sex with her, not to kill the victim, is a defense.
No. The defendant argued his intent was not to kill the victim but to have sex with her, that his interest in sexual asphyxiation did not mean that he wanted to kill her, and “asphyxiation activities” were consensual. The defendant relies on Lawrence v. Texas, 539 U.S. 558 (2003), contending that consensual sexual activity is a defense. However, a consent is not a defense to harmful conduct, under existing Massachusetts precedent. Massachusetts does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result.” Here, the violent and physically harmful nature of the defendant’s acts defeats his argument.
Issue2: Whether admission in evidence of photographs, video, and computer search records were abuse of discretion of trial judge.
No. The trial judge did not abuse its discretion to admit such evidence. The defendant asserts that these graphic materials were of negligible relevance but highly prejudicial. Case law establishes that if such evidence possess evidential value on a material matter, the determination whether a photograph possess such value is within the discretion of the trial judge. The trial judge determined that the evidence was admissible because it was highly probative on the issue of the defendant’s motive and intent. The record demonstrates that the judge was aware of the evidentiary issue to be determined, recognized his discretion, and exercised properly.
Judgments affirmed.
Prepared by YK
Docket No. 09 – P – 1832.
Appeals Court of Massachusetts.
The defendant was convicted of armed home invasion, assault and battery and attempting to murder the victim by strangulation.
Facts: The victim opened the door for the defendant, whom she knew as her friends’ ex-husband. The defendant entered and asked where her husband was. The victim said he was not there. The victim opened the door for him to leave but he did not leave. Instead, he took a necktie, put it around her neck and began to pull the ends. He kicked her legs, and she fell on to the floor. The defendant continued to pull harder and harder. The victim asked help for her son. Her son got a knife from the kitchen and stabbed the defendant in the back. The victim ran out to the back yard and ran to the home of neighbors. The neighbor called police. As part of their investigation, police conducted a forensic examination of the defendant’s computer. The police found “400 or more” photographs “that were strangulation-oriented,” and eight were offered and received in evidence. The police also searched the defendant’s computer for the term “asphyxia” and found 978 “hits” and 47 files. A 90-second video clip depicting strangulation was found too.
Issue1: Whether the defendant’s contention that his intent was to have sex with her, not to kill the victim, is a defense.
No. The defendant argued his intent was not to kill the victim but to have sex with her, that his interest in sexual asphyxiation did not mean that he wanted to kill her, and “asphyxiation activities” were consensual. The defendant relies on Lawrence v. Texas, 539 U.S. 558 (2003), contending that consensual sexual activity is a defense. However, a consent is not a defense to harmful conduct, under existing Massachusetts precedent. Massachusetts does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result.” Here, the violent and physically harmful nature of the defendant’s acts defeats his argument.
Issue2: Whether admission in evidence of photographs, video, and computer search records were abuse of discretion of trial judge.
No. The trial judge did not abuse its discretion to admit such evidence. The defendant asserts that these graphic materials were of negligible relevance but highly prejudicial. Case law establishes that if such evidence possess evidential value on a material matter, the determination whether a photograph possess such value is within the discretion of the trial judge. The trial judge determined that the evidence was admissible because it was highly probative on the issue of the defendant’s motive and intent. The record demonstrates that the judge was aware of the evidentiary issue to be determined, recognized his discretion, and exercised properly.
Judgments affirmed.
Prepared by YK
Tuesday, May 24, 2011
Com v. Virgilio
Commonwealth v. Virgilio (May 24, 2011)
Docket No. 10 – P – 519
Appeals Court of Massachusetts.
The defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor. She appeals and contends that the judge denied her motion for a required finding of not guilty and that the judge gave her an excessive sentence.
Facts: The defendant resides in a single-family cottage. Next door to her house is a two-story, two-family dwelling, in which resides the owner of the other car involved in this scenario. Between the two houses is a paved driveway that widens and ends in a parking area. Only the occupants of the two houses park in this area. There are no businesses or public services of any kind along the driveway parking area.
Issue: Whether the place on which the defendant was operating the vehicle was “public way” within the meaning of the relevant statute, G.L. c. 90, § 24(1)(a)(1).
No. Here the place in question is a private driveway and parking area that only serves two residences, containing three dwelling units in total. It neither contains nor leads to any businesses or public accommodations. There is nothing in the appearance of the driveway or parking area that would give an impression to the general public or members of thereof that it is anything other than a private driveway or that public use was invited, notwithstanding that it is neither gated nor posted. These circumstances foreclose its consideration, as matter of law, as a way or place to which the public has access as invitees or licensees. To decide otherwise would be to essentially overrule the requirement that members of the public must be able to reasonably conclude from the physical circumstances of the way that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature.
Judgment reversed.
Prepared by YK
Docket No. 10 – P – 519
Appeals Court of Massachusetts.
The defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor. She appeals and contends that the judge denied her motion for a required finding of not guilty and that the judge gave her an excessive sentence.
Facts: The defendant resides in a single-family cottage. Next door to her house is a two-story, two-family dwelling, in which resides the owner of the other car involved in this scenario. Between the two houses is a paved driveway that widens and ends in a parking area. Only the occupants of the two houses park in this area. There are no businesses or public services of any kind along the driveway parking area.
Issue: Whether the place on which the defendant was operating the vehicle was “public way” within the meaning of the relevant statute, G.L. c. 90, § 24(1)(a)(1).
No. Here the place in question is a private driveway and parking area that only serves two residences, containing three dwelling units in total. It neither contains nor leads to any businesses or public accommodations. There is nothing in the appearance of the driveway or parking area that would give an impression to the general public or members of thereof that it is anything other than a private driveway or that public use was invited, notwithstanding that it is neither gated nor posted. These circumstances foreclose its consideration, as matter of law, as a way or place to which the public has access as invitees or licensees. To decide otherwise would be to essentially overrule the requirement that members of the public must be able to reasonably conclude from the physical circumstances of the way that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature.
Judgment reversed.
Prepared by YK
Com v. Rutkowski
Commonwealth v. Rutkowski
459 Mass. 794 (2011)
Supreme Judicial Court
May 24, 2011
First-degree Murder, Extreme Atrocity and Cruelty
A jury found the defendant guilty of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant appealed her conviction claiming: 1) the judge erred when he failed to instruct the jury that they could consider evidence of mental impairment on the question or extreme atrocity or cruelty, 2) ineffective assistance of counsel, 3) the judge erred when he failed to limit instruction as to the use of the defendant’s statements to mental health professionals, and 4) that the verdict should be reduced to murder in the second degree or manslaughter or a new trial should be granted pursuant to G.L. c. 278, § 33E. The Supreme Judicial Court (SJC) held that the jury was not properly instructed, but that the conviction of murder in the second degree could stand unless the Commonwealth moved for a new trial.
Facts
The victim was disabled due to partial paralysis, moved slowly, had difficulty
speaking, and had a long history of mental illness. He frequently left the home he shared with his wife without saying where he was going, and this made her upset.
On the afternoon of August 17, 2004, the victim and defendant (his wife) went fishing at a lake in Wales. While they were fishing they got into an argument, and the victim walked away. When he did not return, the defendant frantically searched for him for two hours without finding him. She then drove home by herself. At 6 P.M the defendant noticed the victim in the parking lot outside their apartment. She rushed outside, demanded to know how he got home, and became angry when he did not respond. She told him she was “kicking him out” of the apartment. After this statement the victim began to laugh.
Neighbors heard the defendant scream at the victim, call him “retarded,” and tell him he would not need his belongings anymore because, “he was going to be dead very soon.” The victim did not get upset, but continued laughing. The defendant went inside, got the victim’s belongings and threw them down the stairs. She went back outside, gathered the victim’s belongings out of their van and threw them in the dumpster. As this was happening the victim continued to laugh. The defendant got in the van and drove away, then returned and purposely drove into the victim. She drove back and forth over him several times, about five times total. She then parked the van and threatened a neighbor that if she didn’t “get back into [her] own apartment” she would be next.
The victim was lying on the ground when police arrived. When an officer asked the defendant if she saw what happened she said, “Yes, I did. I ran him over. We had what you’d call a domestic situation here.” Police arrested the defendant, and the victim was transported to the hospital. He died shortly thereafter.
At trial expert psychiatric testimony revealed the defendant had a long history of mental illness. The psychiatrist also testified that the defendant’s headache medication “fuel[ed]” her bipolar disorder and that this disorder, along with depression and a history of psychosis and head injuries “were in play” when she ran over the victim. The psychiatrist testified that as a result of mental illness, the defendant “lacked the substantial capacity to conform her conduct to the requirements of the law.”
Even though the defendant requested a jury instruction specifically “on all of the factors” to prove “murder with extreme atrocity or cruelty,” the jury was instructed on mental impairment only as it related to intent and knowledge, which are not aspects of extreme atrocity or cruelty.
Issue 1: Did the judge err in his jury instructions for extreme atrocity or cruelty?
The SJC found it “should have been made clear to the jury that they could consider evidence of mental impairment on the specific question whether the murder was committed with extreme atrocity or cruelty.” In Commonwealth v. Gould, 380 Mass. 672, 686 (1980), the SJC found that “impairment of a defendant’s ability to make a decision in a normal manner may have a direct bearing on the degree of murder, and consequently, on the issue of extreme atrocity or cruelty.” The defendant argued it was error for the jury not to be instructed on mental impairment as it applies to extreme atrocity or cruelty, and because of her long history of mental illness presented at trial, the jury should have been instructed accordingly.
Issue 2: Was the assistance of counsel ineffective?
Because the SJC found that the jury instructions were erroneous, they did not decide whether counsel was ineffective.
Issue 3: Did the judge err in limiting the use of defendant’s statements to mental health professionals?
The defendant claims the jury should have been allowed to consider statements to mental health professionals, presented in her medical records, for the truth of such statements. However, as shown in Commonwealth v. Brown, 449 Mass. 747, 768 (2007), “an instruction limiting consideration of a defendant’s statement to her expert as the basis for the expert’s opinion, not for the truth of the underlying statements, is a correct statement of the law.” Therefore, it was not error for the trial judge to instruct the jury not to consider the truth of statements made by the defendant to mental health professionals.
Issue 4: Should the verdict be reduced?
The defendant requested a reduction of the verdict to murder in the second degree, manslaughter or a new trial. The SJC found no error in the jury’s verdict for second-degree murder. The case is remanded, and the Commonwealth can choose whether to retry the defendant for murder on the theory of extreme atrocity or cruelty, or to accept the lesser conviction of second-degree murder.
Remanded to the Superior Court
Prepared by JC
459 Mass. 794 (2011)
Supreme Judicial Court
May 24, 2011
First-degree Murder, Extreme Atrocity and Cruelty
A jury found the defendant guilty of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant appealed her conviction claiming: 1) the judge erred when he failed to instruct the jury that they could consider evidence of mental impairment on the question or extreme atrocity or cruelty, 2) ineffective assistance of counsel, 3) the judge erred when he failed to limit instruction as to the use of the defendant’s statements to mental health professionals, and 4) that the verdict should be reduced to murder in the second degree or manslaughter or a new trial should be granted pursuant to G.L. c. 278, § 33E. The Supreme Judicial Court (SJC) held that the jury was not properly instructed, but that the conviction of murder in the second degree could stand unless the Commonwealth moved for a new trial.
Facts
The victim was disabled due to partial paralysis, moved slowly, had difficulty
speaking, and had a long history of mental illness. He frequently left the home he shared with his wife without saying where he was going, and this made her upset.
On the afternoon of August 17, 2004, the victim and defendant (his wife) went fishing at a lake in Wales. While they were fishing they got into an argument, and the victim walked away. When he did not return, the defendant frantically searched for him for two hours without finding him. She then drove home by herself. At 6 P.M the defendant noticed the victim in the parking lot outside their apartment. She rushed outside, demanded to know how he got home, and became angry when he did not respond. She told him she was “kicking him out” of the apartment. After this statement the victim began to laugh.
Neighbors heard the defendant scream at the victim, call him “retarded,” and tell him he would not need his belongings anymore because, “he was going to be dead very soon.” The victim did not get upset, but continued laughing. The defendant went inside, got the victim’s belongings and threw them down the stairs. She went back outside, gathered the victim’s belongings out of their van and threw them in the dumpster. As this was happening the victim continued to laugh. The defendant got in the van and drove away, then returned and purposely drove into the victim. She drove back and forth over him several times, about five times total. She then parked the van and threatened a neighbor that if she didn’t “get back into [her] own apartment” she would be next.
The victim was lying on the ground when police arrived. When an officer asked the defendant if she saw what happened she said, “Yes, I did. I ran him over. We had what you’d call a domestic situation here.” Police arrested the defendant, and the victim was transported to the hospital. He died shortly thereafter.
At trial expert psychiatric testimony revealed the defendant had a long history of mental illness. The psychiatrist also testified that the defendant’s headache medication “fuel[ed]” her bipolar disorder and that this disorder, along with depression and a history of psychosis and head injuries “were in play” when she ran over the victim. The psychiatrist testified that as a result of mental illness, the defendant “lacked the substantial capacity to conform her conduct to the requirements of the law.”
Even though the defendant requested a jury instruction specifically “on all of the factors” to prove “murder with extreme atrocity or cruelty,” the jury was instructed on mental impairment only as it related to intent and knowledge, which are not aspects of extreme atrocity or cruelty.
Issue 1: Did the judge err in his jury instructions for extreme atrocity or cruelty?
The SJC found it “should have been made clear to the jury that they could consider evidence of mental impairment on the specific question whether the murder was committed with extreme atrocity or cruelty.” In Commonwealth v. Gould, 380 Mass. 672, 686 (1980), the SJC found that “impairment of a defendant’s ability to make a decision in a normal manner may have a direct bearing on the degree of murder, and consequently, on the issue of extreme atrocity or cruelty.” The defendant argued it was error for the jury not to be instructed on mental impairment as it applies to extreme atrocity or cruelty, and because of her long history of mental illness presented at trial, the jury should have been instructed accordingly.
Issue 2: Was the assistance of counsel ineffective?
Because the SJC found that the jury instructions were erroneous, they did not decide whether counsel was ineffective.
Issue 3: Did the judge err in limiting the use of defendant’s statements to mental health professionals?
The defendant claims the jury should have been allowed to consider statements to mental health professionals, presented in her medical records, for the truth of such statements. However, as shown in Commonwealth v. Brown, 449 Mass. 747, 768 (2007), “an instruction limiting consideration of a defendant’s statement to her expert as the basis for the expert’s opinion, not for the truth of the underlying statements, is a correct statement of the law.” Therefore, it was not error for the trial judge to instruct the jury not to consider the truth of statements made by the defendant to mental health professionals.
Issue 4: Should the verdict be reduced?
The defendant requested a reduction of the verdict to murder in the second degree, manslaughter or a new trial. The SJC found no error in the jury’s verdict for second-degree murder. The case is remanded, and the Commonwealth can choose whether to retry the defendant for murder on the theory of extreme atrocity or cruelty, or to accept the lesser conviction of second-degree murder.
Remanded to the Superior Court
Prepared by JC
Monday, May 23, 2011
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
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
Friday, May 20, 2011
Com v. Chown
Commonwealth v. Chown
459 Mass. 756 (2011)
Supreme Judicial Court
May 20, 2011
Drug Offense, Motion to Suppress Evidence, Constitutional Law
Defendant charged with drug offenses filed a motion to suppress evidence on the ground that his arrest and the subsequent search were unlawful. After an evidentiary hearing, the motion was granted. The Appeals Court reversed, further review was granted, and the Supreme Judicial Court allowed the motion.
Facts
On January 20, 2006, the defendant was driving home from his job as a bartender at a restaurant when he was stopped for speeding. As the officer approached the vehicle he noticed the rear window was broken and recognized the driver-defendant. The officer had eaten in the restaurant where the defendant worked several times, and had also responded to a call at the defendant’s house in 2005. When the officer asked for the defendant’s license, the defendant gave a valid Canadian license with a New Brunswick address. The officer knew the defendant previously had a Massachusetts license, and when he asked why he didn’t have one now, the defendant said he was planning to get one in the morning. The officer returned to his cruiser and ran a record check. The check confirmed that the defendant’s old Massachusetts license had expired and that the defendant had a history of motor vehicle violations dating back to 1989.
The officer arrested the defendant for operating a vehicle without a Massachusetts license. Because the rear window of the truck was damaged, the department’s written inventory policy required the officer to secure the vehicle and conduct a search. During the search the officer found a backpack containing drugs and two scales, along with credit cards, a check from the defendant’s account with a Massachusetts address, a piece of mail addressed to the defendant with the same Massachusetts address, and $6,355 in cash. The truck also had a “dump sticker” from 2002 on the window.
The defendant moved to suppress evidence discovered during the search of his vehicle on the ground that his arrest and the subsequent search were unlawful because he possessed a valid Canadian driver’s license, so he did not need a Massachusetts driver’s license when he was stopped. Defendant relied on the Fourth Amendment to the Constitution and Article 14 of the Massachusetts Declaration of Rights for his claim. A Superior Court judge allowed the motion, and a divided panel of the Appeals Court reversed the order.
Issue 1: Did the officer have probable cause to make an arrest?
Operating a motor vehicle without a proper Massachusetts license is an arrestable offense, but G.L. c. 90, § 10 provides that “persons who are licensed in another state or country” and “nonresidents” do not need to have a Massachusetts driver’s license to drive legally in the Commonwealth for 30 calendar days. The SJC found that because the defendant provided the officer with a valid Canadian driver’s license he was claiming to be a resident of Canada. Even though the officer was familiar with the defendant and knew him to have lived and worked in Massachusetts for more than 30 days, the factors listed in G.L. c. 90, § 3 ½ (a) (whether a person is registered to vote in Massachusetts, receives public assistance, has homeowner’s liability insurance on property declared the principal residence, etc.) are the only ones that are determinative when deciding whether a person claiming to be a nonresident is in fact a resident of Massachusetts. Because the officer did not conduct an investigation to determine whether the defendant met any of the § 3 ½ (a) criteria, the defendant was still presumed to be driving legally as a nonresident, and there was no probable cause for arrest.
Order Allowing a Motion to Suppress Affirmed
Prepared by JC
459 Mass. 756 (2011)
Supreme Judicial Court
May 20, 2011
Drug Offense, Motion to Suppress Evidence, Constitutional Law
Defendant charged with drug offenses filed a motion to suppress evidence on the ground that his arrest and the subsequent search were unlawful. After an evidentiary hearing, the motion was granted. The Appeals Court reversed, further review was granted, and the Supreme Judicial Court allowed the motion.
Facts
On January 20, 2006, the defendant was driving home from his job as a bartender at a restaurant when he was stopped for speeding. As the officer approached the vehicle he noticed the rear window was broken and recognized the driver-defendant. The officer had eaten in the restaurant where the defendant worked several times, and had also responded to a call at the defendant’s house in 2005. When the officer asked for the defendant’s license, the defendant gave a valid Canadian license with a New Brunswick address. The officer knew the defendant previously had a Massachusetts license, and when he asked why he didn’t have one now, the defendant said he was planning to get one in the morning. The officer returned to his cruiser and ran a record check. The check confirmed that the defendant’s old Massachusetts license had expired and that the defendant had a history of motor vehicle violations dating back to 1989.
The officer arrested the defendant for operating a vehicle without a Massachusetts license. Because the rear window of the truck was damaged, the department’s written inventory policy required the officer to secure the vehicle and conduct a search. During the search the officer found a backpack containing drugs and two scales, along with credit cards, a check from the defendant’s account with a Massachusetts address, a piece of mail addressed to the defendant with the same Massachusetts address, and $6,355 in cash. The truck also had a “dump sticker” from 2002 on the window.
The defendant moved to suppress evidence discovered during the search of his vehicle on the ground that his arrest and the subsequent search were unlawful because he possessed a valid Canadian driver’s license, so he did not need a Massachusetts driver’s license when he was stopped. Defendant relied on the Fourth Amendment to the Constitution and Article 14 of the Massachusetts Declaration of Rights for his claim. A Superior Court judge allowed the motion, and a divided panel of the Appeals Court reversed the order.
Issue 1: Did the officer have probable cause to make an arrest?
Operating a motor vehicle without a proper Massachusetts license is an arrestable offense, but G.L. c. 90, § 10 provides that “persons who are licensed in another state or country” and “nonresidents” do not need to have a Massachusetts driver’s license to drive legally in the Commonwealth for 30 calendar days. The SJC found that because the defendant provided the officer with a valid Canadian driver’s license he was claiming to be a resident of Canada. Even though the officer was familiar with the defendant and knew him to have lived and worked in Massachusetts for more than 30 days, the factors listed in G.L. c. 90, § 3 ½ (a) (whether a person is registered to vote in Massachusetts, receives public assistance, has homeowner’s liability insurance on property declared the principal residence, etc.) are the only ones that are determinative when deciding whether a person claiming to be a nonresident is in fact a resident of Massachusetts. Because the officer did not conduct an investigation to determine whether the defendant met any of the § 3 ½ (a) criteria, the defendant was still presumed to be driving legally as a nonresident, and there was no probable cause for arrest.
Order Allowing a Motion to Suppress Affirmed
Prepared by JC
Thursday, May 19, 2011
Com v. Wynton
Commonwealth v. Wynton
459 Mass. 745 (2011)
Supreme Judicial Court
May 19, 2011
Juvenile, Possession of a Dangerous Weapon on School Grounds, Question of Law
Juvenile charged with possessing a dangerous weapon on school grounds filed a motion to dismiss. The Juvenile Court reported a question of law to the Appeals Court, and the Commonwealth filed an application for direct appellate review. The Supreme Judicial Court (SJC) found that the phrase “dangerous weapon,” as used in G.L. c. 269, § 10(j), incorporates the common-law definition of that phrase.
Facts
On April 1, 2009, a juvenile student at a high school brought a small folding knife with a two-inch blade to school. The knife fell out of the juvenile’s pocket during class, and the juvenile was suspended from school and charged with possession of a dangerous weapon on the grounds of a school in violation of G.L. c. 269, § 10(j).
The juvenile filed a motion to dismiss, claiming the knife was not a dangerous weapon. The juvenile judge determined the question of law in this case was dispositive, and both parties moved to report to the Appeals Court. The SJC granted the application for review from the Commonwealth.
Issue 1: What is a “dangerous weapon” under the meaning of the statute?
The applicable statute for the charge of possession of a dangerous weapon on the grounds of a school is G.L. c. 269, §10. The term “dangerous weapon” is not defined in section ten, in the remainder of G.L. c. 269, or in the General Laws. Because the ordinary language of the statute did not provide a definition of the term, the SJC consulted the common law. Under the common law, “dangerous weapon” means both an object that is dangerous per se - “designed for the purpose of bodily assault or defense” Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) - and an object that is dangerous as used - “dangerous because they are ‘used in a dangerous fashion.’” Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). The SJC presumed that the Legislature’s intent in drafting § 10 was to adopt the common law definition, and that “dangerous weapon” included both objects that are dangerous per se and as used. Because knives that are designed to produce great bodily harm are dangerous per se under the common law, under § 10 they are prohibited on school grounds.
Issue 2: Is the knife in question a “dangerous weapon” under the meaning of the statute?
The SJC speculated that it was unlikely a two-inch folding knife is a dangerous weapon under the meaning of the statute, but they made no holding because they were without complete information, and instead remanded to the Juvenile Court.
Remanded to the Juvenile Court
Prepared by JC
459 Mass. 745 (2011)
Supreme Judicial Court
May 19, 2011
Juvenile, Possession of a Dangerous Weapon on School Grounds, Question of Law
Juvenile charged with possessing a dangerous weapon on school grounds filed a motion to dismiss. The Juvenile Court reported a question of law to the Appeals Court, and the Commonwealth filed an application for direct appellate review. The Supreme Judicial Court (SJC) found that the phrase “dangerous weapon,” as used in G.L. c. 269, § 10(j), incorporates the common-law definition of that phrase.
Facts
On April 1, 2009, a juvenile student at a high school brought a small folding knife with a two-inch blade to school. The knife fell out of the juvenile’s pocket during class, and the juvenile was suspended from school and charged with possession of a dangerous weapon on the grounds of a school in violation of G.L. c. 269, § 10(j).
The juvenile filed a motion to dismiss, claiming the knife was not a dangerous weapon. The juvenile judge determined the question of law in this case was dispositive, and both parties moved to report to the Appeals Court. The SJC granted the application for review from the Commonwealth.
Issue 1: What is a “dangerous weapon” under the meaning of the statute?
The applicable statute for the charge of possession of a dangerous weapon on the grounds of a school is G.L. c. 269, §10. The term “dangerous weapon” is not defined in section ten, in the remainder of G.L. c. 269, or in the General Laws. Because the ordinary language of the statute did not provide a definition of the term, the SJC consulted the common law. Under the common law, “dangerous weapon” means both an object that is dangerous per se - “designed for the purpose of bodily assault or defense” Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) - and an object that is dangerous as used - “dangerous because they are ‘used in a dangerous fashion.’” Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). The SJC presumed that the Legislature’s intent in drafting § 10 was to adopt the common law definition, and that “dangerous weapon” included both objects that are dangerous per se and as used. Because knives that are designed to produce great bodily harm are dangerous per se under the common law, under § 10 they are prohibited on school grounds.
Issue 2: Is the knife in question a “dangerous weapon” under the meaning of the statute?
The SJC speculated that it was unlikely a two-inch folding knife is a dangerous weapon under the meaning of the statute, but they made no holding because they were without complete information, and instead remanded to the Juvenile Court.
Remanded to the Juvenile Court
Prepared by JC
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