Opinion
10-P-1875
10-31-2011
COMMONWEALTH v. WAKEELAH A. COCROFT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of resisting arrest, G. L. c. 268, § 32B. On appeal, she argues that (1) the evidence was not sufficient to establish that she knew she was being arrested when she resisted the officer; (2) her conduct did not rise to the level of resistance to the arrest; (3) the trial judge erred in not fully instructing the jury on the definition of arrest, and, accordingly, the jury may have considered conduct that occurred prior to arrest; and (4) the prosecutor's closing argument, stating that he had seen a copy of a videotape of the incident that was clearer than the more grainy videotape shown to the jury, suggested knowledge of the case beyond the evidence. We affirm.
Background. The trial evidence may be summarized as follows. In the early morning of December 29, 2007, Worcester police Officer Smith was on routine traffic patrol in a marked police cruiser when he stopped a car for speeding that was being driven by the defendant's sister, Klithea Wangey. The defendant was a passenger. Wangey pulled the car into a gas station and stopped at one of the pumps. Officer Smith approached and asked for Wangey's license and registration. Officer Smith then went back to his cruiser to retrieve the radar unit in order to show Wangey the reading, and to inform her that she would be cited for speeding. While the officer was talking with Wangey to get the necessary vehicle and license identification paperwork, the defendant began to speak out vehemently in protest, stating, 'You can't talk to her that way. She has rights. I know her rights. You can't talk to us like that.' The officer leaned into the car and told the defendant that if he needed to speak with her, he would.
The officer turned to walk back to his cruiser in order to run routine checks of the license and registration. As he moved away from the stopped car, Wangey asked if she could get out and pump gas. The officer said no, and told Wangey to shut the motor down and wait. Wangey acknowledged the instruction and shut the car engine off. Officer Smith then returned to his cruiser to run the registration, check for warrants, and write a citation. While Officer Smith was in the cruiser, he looked over and saw that the defendant had exited the car and was pumping gas. The officer got out of his cruiser and told the defendant that he had already ordered Wangey not to pump gas until he finished processing the citation paperwork, and that the defendant should stop pumping gas and return to the car. At this point, the defendant again began to protest, saying, '[You] can't talk to [me] like that. [You] can't tell [me] what to do.' As she continued, the officer warned the defendant that, if she did not stop talking and return to her car, she would be arrested, stating, 'If you say anything else, I'll arrest you.' Both the defendant and Wangey acknowledge that Officer Smith gave this warning to the defendant. Yet, despite being so warned of arrest, the defendant continued, stating, 'I have my rights and you can't speak to me in that manner.'
Having so warned the defendant, the officer moved to arrest her by reaching to grasp her arm as she was re-entering the car from the gas pump. The defendant pulled her body back towards the inside of the car. The officer told the defendant that she was under arrest and to stop resisting. (The defendant denied that the officer told her she was under arrest at this time, but admitted that he said, 'Stop resisting.') As the officer continued to try to effectuate the arrest, the defendant turned, 'tucked her arms in towards her body and picked her feet up.' This move by the defendant -- whose body was mostly outside of the car at this juncture -- left Officer Smith supporting all of her weight. When the defendant's feet returned to the ground, the officer regained control and pushed the defendant to the ground. The defendant remained on the ground for several minutes until backup police assistance arrived, and she was placed in a police cruiser.
In addition to Officer Smith's testimony at trial, in the Commonwealth's case in chief, the prosecutor played a videotape from the gas station's surveillance camera. The judge imposed a fine of $100, plus court costs, but stayed the sentence pending this appeal.
The defendant had also been charged with disorderly conduct. In the colloquy on the defendant's motion for a required finding of not guilty on the disorderly conduct charge, among other things, the free speech aspects were discussed, and the judge granted the motion. See, e.g., Commonwealth v. A Juvenile, 368 Mass. 580 (1975) (addressing the constitutional limits on convictions for disorderly conduct based on speech alone). To the extent there is any suggestion in the defendant's arguments that the dismissal of the disorderly conduct charge necessitated a required finding of not guilty on the resisting arrest charge, such a contention would be unavailing. Resisting arrest is a crime even when the predicate for the arrest is unlawful. See G. L. c. 268, § 32B(b). Thus, even where a valid challenge to the underlying offense is lodged -- including, but not limited to a challenge to the sufficiency of the evidence, or a challenge based on constitutional error -- that would not preclude a conviction for resisting arrest. See generally Commonwealth v. Grandison, 433 Mass. 135, 145 n.20 (2001); Commonwealth v. Kolodziej, 69 Mass. App. Ct. 199, 203 (2007), quoting from Commonwealth v. Moreira, 388 Mass. 596, 600 (1983) ('[A]n arrestee may be reasonably required to submit to a possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty').
Discussion. 1. Knowledge concerning the arrest. The defendant asserts that her motion for a required finding of not guilty should have been granted at the close of the Commonwealth's case or after the return of the verdict because the Commonwealth did not prove that the defendant knew she was being arrested when she resisted the officer. We review such challenges to the sufficiency of the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and consider the evidence in the light most favorable to the Commonwealth.
To obtain a conviction for resisting arrest, in addition to other offense elements (not at issue here) the Commonwealth must prove that a defendant knew that she was being arrested. '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.' Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008). Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 357 (2010). 'While it is not necessary to use the word 'arrest' when taking a defendant into custody,' there is typically 'some form of communication between the police officer and the person.' Grant, 71 Mass. App. Ct. at 209 (citations omitted). In considering whether the person detained understood that he or she was being placed under arrest, the pertinent inquiry is 'not what the defendant . . . thought, but what a reasonable [person], innocent of any crime, would have thought . . . in the defendant's shoes.' Commonwealth v. Borges, 395 Mass. 788, 792 n.3 (1985), quoting from Hicks v. United States, 382 F.2d 158, 161 (D.C. Cir. 1967), and United States v. McKethan, 247 F. Supp. 324, 328 (D.D.C. 1965).
Here, given Officer Smith's clear and direct warning to the defendant that she would be arrested if she continued to speak, a reasonable person in the defendant's position would have understood that failure to obey the officer's warning would result in arrest. Yet, after the warning, the defendant continued to verbally engage the officer, and, then, as he reached for her arm to detain and arrest her as she entered the car after pumping gas, she engaged in resistance. Viewed in the light most favorable to the government under Latimore, this was sufficient evidence to establish that the defendant knew she was being arrested at the time of her resistance. Indeed, even under the defendant's version of the incident, she can be deemed to have reasonably and objectively understood that she was being arrested for failing to follow the officer's commands.
2. The defendant's conduct and resistance. The defendant also asserts that there was insufficient evidence to show that her actions constituted resistance to arrest under G. L. c. 268, § 32B(a). We disagree. The defendant's actions may be compared to those at issue in Commonwealth v. Grandison, 433 Mass. 135, 144-145 (2001), wherein the court determined that the stiffening of the defendant's arms and an effort to break free from an officer's grip constituted resisting arrest. Decisions of this court are in accord with respect to what constitutes resistance to arrest. See, e.g., Commonwealth v. Katykhin, 59 Mass. App. Ct. 261, 262, 264 (2003) (evidence sufficient where handcuffed defendant refused to get into cruiser, became 'defiant and uncooperative,' 'stood rigid, upright, [and] 'like a plank of wood," and tried to pull away, as if in a 'tug of war'); Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 467-469 (2006) (evidence of resisting arrest sufficient where defendant was yelling, flailing his arms, stiffening his arms, and refusing to put his hands behind his back to be handcuffed).
3. Jury instructions regarding arrest. The defendant submits that there was error in the judge's jury instructions because the instructions were susceptible to an interpretation by the jury that conduct preceding the actual arrest -- that is preceding the defendant's understanding that she was being arrested -- might be considered. We see no such error. The instructions on resisting arrest followed the Model Jury Instructions for Use in the District Court. The instructions clearly articulated the Commonwealth's burden to prove that the defendant resisted 'knowingly, that is to say, that the defendant knew at the time she was acting to prevent an arrest by a police officer acting under his authority.' The judge further explained this required the Commonwealth to prove that 'the defendant knew that the officer was attempting to arrest her.'
4. Prosecutor's closing argument. The defendant challenges a remark included in the prosecutor's closing argument which indicated that the prosecutor had seen a clearer version of the gas station surveillance video than the jury had seen at trial. There was no objection. Accordingly, we review to determine whether there was error, and if so, whether the prosecutor's conduct created a substantial risk of a miscarriage of justice. Commonwealth v. Dumais, 60 Mass. App. Ct. 70, 74 (2003).
The comment which the defendant cites is as follows.
'You actually see him on the video tape lean in, and counsel and I have had the advantage of watching the tape on a much more condensed . . . where the resolution is tighter. You saw it on a larger screen.'
This cited remark in the prosecutor's closing was error. However, we conclude that the remark did not give rise to a substantial risk of a miscarriage of justice. The remark was peripheral in that it referred to that portion of the videotape in which the officer was leaning into the car after the initial stop, and was speaking to Wangey through the driver's window. This was not a part of the core acts that constituted the offense of resisting arrest, and this isolated remark about the video had markedly less significance than the defendant would attribute to it. Finally, the judge instructed the jury that the statements of the lawyers were not evidence.
Judgment affirmed.
By the Court (Berry, Meade & Milkey, JJ.),