Opinion
20-P-855
01-24-2022
COMMONWEALTH v. Thomas CLARK, Third.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant, Thomas Clark, III, was convicted of resisting arrest. On appeal he challenges the sufficiency of the evidence and the judge's jury instructions on the law of resisting arrest. We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. At about 3 A.M. on the morning of May 17, 2017, Salem police Officers Robert Monk and Daniel Tucker (jointly, the officers) were patrolling the "Point" neighborhood in Salem when they noticed a man, later identified as the defendant, standing by a bicycle on the side of the street. Upon seeing the officers, the defendant quickly pedaled away. After making a few turns, he abruptly "slid his bike," dismounted, and "quickly ran out of sight." Moments later, he returned, "quickly got on his bike after looking back at [the officers]," and rode away "in the direction he came from." The officers flashed their lights and asked to speak with him to see "what's going on."
The defendant "began on this tirade, cursing and swearing" and asking what he had done wrong. The officers exited their vehicle and, after noticing a bulge in the defendant's waistband, asked "if he had any weapons on him." He responded that he did not and proceeded to "swat" Officer Tucker's hand away when the officer attempted to pat frisk the defendant. The defendant stated that he had a license to carry and, when asked again "if he had a gun on him," the defendant responded, "Yes." He then began to reach for his waistband. The officers grabbed the defendant's hands, pushed him against the cruiser, and told him not to reach for anything.
The officers placed the defendant's hands on the side of the cruiser and again told him not to reach for anything. The defendant "for a brief moment ... was calm," but "without warning, ripped his right arm away from [Officer Monk] and went directly for the item in his waistband." The officers, believing the defendant was reaching for his firearm, brought him to the ground and began to struggle with him for control of the firearm. The officers repeatedly yelled at the defendant to "[g]ive us your hands" and "[p]ut your hands behind your back." The defendant continued to struggle, attempting to reach the firearm in his waistband. As the defendant rolled onto his left side, the firearm fell to the ground and was secured by a third officer, Corey Gauthier, who had arrived on the scene as backup. Only then were the officers able to handcuff the defendant.
After the close of the Commonwealth's case, the defendant testified on his own behalf and offered a conflicting account of events. In pertinent part, the defendant alleged that after being placed against the cruiser, he moved his arm in order to retrieve his wallet and produce his license to carry. At that point, he testified, Officer Tucker wrapped his arm around the defendant's throat and slammed him to the ground. The defendant insisted that he did not resist after being taken to the ground. He claimed that he struggled to breathe and "started panicking," attempted to roll onto his back so that the officers could retrieve the firearm, and tried to put his hands behind his back because he "knew [he] was being arrested."
The defendant was arrested and charged with disorderly conduct, G. L. c. 272, § 53, resisting arrest, G. L. c. 268, § 32B, disturbing the peace, G. L. c. 272, § 53, assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ), and possession of a class B substance, to wit, cocaine, in violation of G. L. c. 94C, § 34. After a trial in District Court, the jury found the defendant guilty of resisting arrest and not guilty of all other charges.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the judge erred in denying his motions for a required finding of not guilty because there was insufficient evidence that he resisted after the officers began to arrest him. When reviewing the sufficiency of the evidence, "[the] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all the evidence.
A defendant resists 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" by "using or threatening to use physical force or violence against the police officer or another" or "using any other means which creates a substantial risk of causing bodily injury to such police officer or another." G. L. c. 268, § 32B (a ). "[T]he crime [of resisting arrest] is committed, if at all, at the time of the ‘effecting’ of an arrest." Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting G. L. c. 268, § 32B. "An arrest is effected when there is [1] ‘an actual or constructive seizure or detention of the person, [2] performed with the intent to effect an arrest and [3] so understood by the person detained.’ " Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting Grandison, supra. "The standard for determining whether a defendant understood that he was being arrested is objective -- whether a reasonable person in the defendant's circumstances would have so understood." Grant, supra at 208.
The defendant correctly notes that "[f]leeing from, or even resisting, a stop or patfrisk does not constitute the crime of resisting arrest" under G. L. c. 268, § 32B. Grant, 71 Mass. App. Ct. at 209. Because resistance must occur during the "effecting" of the arrest and not before or after, see Grandison, 433 Mass. at 145, "[t]he timing of the events here is critical to the analysis." Grant, supra at 208.
There was sufficient evidence for the jury to conclude that the encounter evolved from a limited search to an arrest. It is undisputed that, during the initial stages of the encounter, the officers did not intend to arrest the defendant. To the contrary, the officers testified, and the evidence viewed under the Latimore standard showed, that the officers attempted to "secure the gun." Resistance at this time could not constitute resisting arrest. See Grant, 71 Mass. App. Ct. at 209. However, after the defendant reached for his waistband and the officers took him to the ground, the character of the encounter changed. See Commonwealth v. Portee, 82 Mass. App. Ct. 829, 832 (2012) ("the fact that the encounter began as a threshold inquiry does not require that we consider its character unchanged as it progressed"). The officers testified that the defendant stated that he had a firearm and was told not to reach for anything; that he nonetheless reached for his waistband; and that he was tackled to the ground, told repeatedly to "give us your hands," and told to "put your hands behind your back." In such circumstances, the jury were entitled to conclude that a reasonable person in the defendant's position would have understood that he was under arrest. See Commonwealth v. Soun, 82 Mass. App. Ct. 32, 32 (2012) ("an order by the police to turn around and place one's hands behind one's back is sufficient to satisfy the prong of the resisting arrest statute that requires the Commonwealth to prove that a reasonable person understood that an arrest was being effected"). See also id. at 34.
The defendant does not challenge the legality of the search or seizure on appeal.
We note that the officers testified that the defendant continued to struggle "violent[ly]" as they repeatedly told him to "[g]ive us your hands" and "[p]ut your hands behind your back." The jury were entitled to credit that testimony and conclude that the defendant continued to resist during the effecting of an arrest. See Grandison, 433 Mass. at 144 (evidence that defendant "stiffened his arms and broke free of the officer's grip for a second" as officer was handcuffing him was sufficient for jury to find that defendant resisted arrest).
Finally, after the close of the Commonwealth's case, the defendant testified on his own behalf. He asserted, inter alia, that after he was brought to the ground, he believed he was under arrest. See note 1, supra. In light of this testimony, combined with the prior evidence delineated, supra, the judge did not err in denying the motion for a required finding of not guilty at the close of all the evidence.
2. Jury instructions. The defendant also challenges the judge's initial and supplemental jury instructions. "Because the defendant raised a timely objection to the judge's instruction to the jury, we review his claim for prejudicial error." Commonwealth v. Allen, 474 Mass. 162, 168 (2016). "Trial judges have ‘considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.’ Likewise, they have discretion to determine ‘[t]he proper response to a jury question,’ thereby ‘furthering the [jury's] difficult task of coming to a unanimous verdict’ " (citations omitted). Commonwealth v. Kelly, 470 Mass. 682, 688 (2015).
First, the defendant challenges the judge's initial instruction wherein he stated:
"The Commonwealth must prove the defendant knew that the officers were attempting to arrest him. So, a defendant must know, again, in this context that an attempted seizure is to [e]ffect an arrest, based on the words or actions of the police that communicated their intent before or during any sort of pursuit or interaction of that sort."
The instruction was an accurate statement of the law, tracking the model instruction and the case law cited therein with minor deviation. See Instruction 7.460 of the Criminal Model Jury Instructions for Use in the District Court (2009) (model jury instruction 7.460) ("The Commonwealth must prove that the defendant knew that the ... [officers were] attempting to arrest him" and citing Grant, 71 Mass. App. Ct. 205, for proposition that "defendant must know that [the] attempted seizure is to effect an arrest, based on police words or actions communicating that intention before or during pursuit"). There was no error.
The defendant further contends that the judge's response to a jury question created confusion. During deliberation, the jury asked, "[u]nder the law, what constitutes being under arrest?" In his supplemental instruction, the judge informed the jury that the Commonwealth "must prove that the defendant's resistance occurred before the arrest was completed," and went on to instruct as to when an arrest is completed. The judge then informed the jury that the "crime of resisting arrest is committed, if at all, at the time of the effecting of an arrest," Grant, 71 Mass. App. Ct. at 208, and instructed the jury on effecting an arrest. The instructions were an accurate statement of the law and appropriately emphasized the period of the encounter within which resistance must occur in order to constitute a violation of G. L. c. 268, § 32B. See Grandison, 433 Mass. at 145 (explaining that resisting arrest requires resistance "at the time of the ‘effecting’ of an arrest" and before arrest is completed).
The judge stated:
"[s]o, an arrest is completed when a person has been detained, placed securely in custody, and is under control of the police, so all those three things, detained, placed securely in custody, and under control of the police and the resisting would occur, if proven beyond a reasonable doubt, before the arrest was complete."
This substantially tracked the model instruction, which provides: "[a]n arrest is completed when a person has been detained, placed securely in custody, and is under the control of the police." Model Jury Instruction 7.460.
The judge stated: "[a]n arrest is effected when there is one, an actual or constructive seizure or detention of a person, two, performed with the intent to effect an arrest, and three, it was so understood by the person detained." This language tracked the language in Grant, 71 Mass. App. Ct. at 208.
Finally, the defendant challenges the judge's instruction that the defendant's "knowledge of the police attempting to effect an arrest, may be inferred by the defendant's or the police officer's words or actions that communicated that intent, either before or during the interaction with the police." He contends that because resisting arrest requires an objective standard -- "whether a reasonable person in the defendant's circumstances would have so understood," Grant, 71 Mass. App. Ct. at 208 -- it was error to instruct the jurors that they could consider evidence of the defendant's subjective belief that he was under arrest. The instruction is consistent with precedent. See id. at 209 ("During the defendant's flight from the police, there was no evidence to prove that [the defendant] understood that the officers were effecting an arrest"). See also Commonwealth v. Ocasio, 71 Mass. App. Ct. 304, 311 (2008) (defendant's statement was "highly relevant to whether the defendant knew he was being arrested, an essential element of the crime of resisting arrest"). Moreover, any potential confusion was alleviated by the judge's preceding instruction that "[t]he standard for determining whether the defendant understood that he was being arrested is objective, in other words, whether a reasonable person in the defendant's circumstances, would have understood that he was being arrested." There was no error.
The defendant also challenges the judge's instruction that "[f]leeing from, or even resisting a stop or a pat-frisk, does not constitute the crime of resisting arrest ... [W]hat begins as a stop or a pat-frisk may evolve or may not evolve into an arrest situation; that's something that you as jurors have to decide, based on the facts that have been presented to you in this case, the credible facts that have been presented to you." The defendant claims that the judge improperly suggested that the jurors should accept the officers’ testimony as credible. We discern no such risk where the instruction did not single out either party's testimony -- instead, it properly highlighted the jury's role as the sole judge of credibility. Moreover, the judge's correct instructions regarding the jurors’ role as sole judges of credibility refute the defendant's claim.
Judgment affirmed.