Opinion
No. 14–P–532.
06-14-2016
COMMONWEALTH v. Wayne MECTEAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Wayne Mecteau, was convicted of larceny of a motor vehicle and resisting arrest. On appeal, the defendant challenges his resisting arrest conviction only. He argues that (1) there was insufficient evidence to support his conviction; and (2) the judge impermissibly failed to instruct the jury on an essential element of the offense. Because we agree that the jury were not instructed as to an essential element of the offense, we reverse his conviction of resisting arrest.
The judge allowed the defendant's motion for a required finding of not guilty of the offense of operating a motor vehicle without a license. Additionally, the jury found the defendant not guilty of assault by means of a dangerous weapon and two indictments for assault and battery on a police officer.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to prove that the defendant (1) knew that a police officer was attempting to arrest him and knowingly resisted; and (2) was not justified in using reasonable force in response to the officers' use of excessive force, beyond a reasonable doubt. We review such sufficiency challenges 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.
We recite the facts as the jury could have found them, reserving certain details for later discussion. On the morning of February 10, 2013, following a large snowstorm, on duty police Officer Brian Battista, who was driving his personal vehicle—a pickup truck with a plow attached to the front —received notice to “be on the lookout” for a red West Springfield department of public works (DPW) truck that was reported stolen. Battista soon observed a DPW truck, that was red with a town logo on the side, and followed it into a bank parking lot. Battista pulled behind the DPW truck, approached the passenger side door of the truck with his gun drawn, and through the closed window yelled loudly at the driver—the defendant—“Get out of the truck, West Springfield Police.” Battista moved to the driver's side of the truck, opened the truck door, secured his gun, and warned the defendant that he would use pepper spray on him if he did not comply, but the defendant did not remove his hands from the steering wheel or get out of the truck. After the defendant failed to comply, Battista used pepper spray on the defendant's face.
Toward the end of his 12:00 A.M. –8:00 A.M. shift, at around 7:00 A.M., Battista received permission from his shift supervisor to use his personal vehicle to assist a resident whose car was stuck in the snow.
Rather than exit the vehicle, the defendant shut the door and locked it, and drove to the back of the parking lot. Battista chased the truck, drew his gun, and shot out three of the DPW truck's tires. Battista approached the driver's side window with his gun drawn, and ordered the defendant out of the truck. Again, the defendant refused to comply. Battista secured his gun, withdrew his baton, and shattered the driver's side window and windshield of the DPW truck. Battista secured his baton and withdrew his pepper spray, and advised the defendant that “I'm going to pepper spray you if you don't get out of the vehicle and show me your hands.” The defendant refused to comply, and Battista issued another burst of pepper spray. The defendant attempted to flee in the truck, but the truck continued to “fishtail.”
By the time Battista used pepper spray on the defendant for the second time, his backup, uniformed Officers DiStefano, Carlson, and Curley, had arrived in their marked police cars. DiStefano approached the DPW truck, reached inside the driver's side window, and unlocked the door. DiStefano observed the defendant with a “death grip” on the steering wheel. The defendant did not comply with Battista's orders to get out of the truck, instead he grabbed onto the steering wheel as DiStefano attempted to pull him out of the truck.
a. Resisting arrest. The Commonwealth must prove the elements of a crime beyond a reasonable doubt.
“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 or another, by (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.’ “
Commonwealth v. Grant, 71 Mass.App.Ct. 205, 208 (2008), quoting from G.L. c. 268, § 32B(a ), inserted by St.1995, c. 276. “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.’ “ Grant, supra, quoting from Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). The Commonwealth must prove that the defendant knowingly prevented his arrest and that he knew that he was preventing his “arrest by ‘a police officer, acting under color of his official authority.’ “ Commonwealth v. Lawson, 46 Mass.App.Ct. 627, 629 (1999), quoting from G.L. c. 268, § 32B(a). Finally, “[t]he 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.
Here, viewing the evidence in the light most favorable to the Commonwealth, Latimore, 378 Mass. at 677, we conclude that the evidence was sufficient for the jury to find that the defendant knowingly resisted arrest.
i. Knowledge officer was effectuating arrest. Upon his arrival at the scene, Battista yelled to the defendant, “Get out of the truck, West Springfield Police,” while pointing his gun at the defendant. After the defendant refused to comply, and drove off, Battista shot out three of the truck's tires and again told the defendant, “Stop. Show me your hands. West Springfield Police.” Battista used pepper spray on the defendant at least two times after the defendant refused to comply with Battista's commands, and shattered the driver's side window and windshield of the DPW truck to try to get the defendant out of the DPW truck. DiStefano, fully uniformed and in his police cruiser with the lights and sirens on, responded to the scene to aid Battista. Two additional uniformed officers also responded to the scene. See Commonwealth v. Sanderson, 398 Mass. 761, 766 (1986) (“To determine whether the police action is tantamount to an arrest, it is necessary to consider the degree to which the defendant's movement is restrained, the degree of force used by the police, and the extent of the intrusion”). It was clear that the defendant was not free to leave, and thus the jury could permissibly infer that a reasonable person in the defendant's circumstances would have known that Battista was and, after backup arrived, police officers were, attempting to arrest the defendant. See ibid.
ii. Knowledge of police officer. Battista was wearing his winter uniform, including a West Springfield police-issued jacket with a silver badge on the chest and a police patch on the shoulder. Battista repeatedly identified himself as “West Springfield Police .” After Battista broke the window with his baton, he pepper sprayed the defendant again, and told him “[t]o turn the vehicle off, stop resisting, [and] exit the vehicle.” The jury could have found, beyond a reasonable doubt, that the defendant had actual knowledge that Battista was a police officer. Compare Commonwealth v. Powell, 459 Mass. 572, 580 (2011) (sufficient knowledge of police officers' identity where officer wore police badge around neck and sweatshirt with police badge imprinted and words “Gang Unit” printed on sleeve; unmarked cruiser was recognized in community as used by police; and three groups of bystanders grew silent when car approached).
iii. Defendant's conduct. The jury could have found that the defendant resisted arrest, beyond a reasonable doubt, based on either prong of the offense: using or threatening to use physical force against the police officer, or using any other means to create a substantial risk of serious injury to the officers. See Grant, 71 Mass.App.Ct. at 208. Although “[f]leeing from, or even resisting, a stop or patfrisk does not constitute the crime of resisting arrest,” id. at 209, after Battista identified himself as a police officer, told the defendant to stop and get out of the truck, and issued a burst of pepper spray for noncompliance, the defendant was effectively seized. See Powell, 459 Mass. at 580–581.
The first prong, “using or threatening to use physical force,” was satisfied when the defendant engaged a “death grip” on the steering wheel as DiStefano tried to pull him out of the truck. Commonwealth v. Katykhin, 59 Mass.App.Ct. 261, 262–263 (2003) (first prong met where defendant stiffened body and initiated “tug of war” to avoid being placed in cruiser); Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 467–470 (2006) (stiffening arms and forcing two officers to push defendant against wall to gain physical advantage “supports the conviction under either prong of G .L. c. 268, § 32B [a ]”).
A rational jury also could have concluded that the defendant's behavior created a “substantial risk of causing bodily injury” to Battista or later to all of the officers. The defendant created a dangerous situation by locking himself in the truck and refusing to follow orders to exit. The defendant forced Battista to shoot out the truck's tires to disable it, and break the driver's side window to get the defendant out of the truck, which risked injury to the officer and the defendant. See Grandison, 433 Mass. at 145. Battista also used his baton in an attempt to force the defendant to remove his hands from the steering wheel. See id. at 144–145. See also Katykhin, 59 Mass.App.Ct. at 262–263 ; Commonwealth v. Maylott, 65 Mass.App.Ct. at 467–470.
b. Excessive force. The defendant argues that the Commonwealth failed to prove that the police did not use excessive force against him and that he did not use reasonable force in response. “[I]n the absence of excessive or unnecessary force by an arresting officer, a person may not use force to resist an arrest by one who he knows or has good reason to believe is an authorized police officer, engaged in the performance of his duties.” Commonwealth v. Moreira, 388 Mass. 596, 601 (1983).
The jury could have found, beyond a reasonable doubt, that the defendant resisted arrest prior to any of the actions by the police officers that could be construed as excessive force. Subsequent excessive force cannot negate the defendant's prior unlawful resistance. See ibid. Cf. Grandison, 433 Mass. at 145–146 (resisting conduct occurring subsequent to arrest has no bearing on resisting arrest charge).
2. Jury instructions. The parties agree that the judge's instruction on resisting arrest largely tracked the model jury instruction. However, the defendant argues that the judge failed to specifically instruct the jury that the Commonwealth must prove that (1) “the defendant knew that the person seeking to make the arrest was a ‘police officer,’ “ and (2) “the defendant knew that the officers were attempting to arrest him.” Instruction 7.460 of the Criminal Model Jury Instruction for Use in the District Court (2009) . Where, as here, the defendant failed to object to the jury instruction given, “the error committed is reversible only if the instruction created a substantial risk of a miscarriage of justice.” Commonwealth v.Thomas, 401 Mass. 109, 117–118 (1987).
The judge instructed the jury: “The Commonwealth must prove that the person seeking to effect the arrest was a police officer.” The judge did not instruct with regard to the defendant's specific knowledge that the officers were attempting to arrest him.
Here, the Commonwealth concedes that the judge did not specifically instruct the jury as to the Commonwealth's burden with regard to the defendant's knowledge requirement as to this offense. However, it argues that the error does not create a substantial risk of miscarriage of justice because the jury were properly instructed that they were required to find that the defendant knew Battista and DiStefano were police officers in order to find him guilty of assault and battery on a police officer. This argument is unavailing. “[N]o general statement of the charges can remedy a specific instruction which is defective ‘unless the general statement clearly indicates that its consideration must be imported into the defective instruction.’ “ Id. at 119, quoting from Connolly v. Commonwealth, 377 Mass. 527, 536 (1979).
The jury were not instructed that to convict the defendant of resisting arrest they must also find that the defendant knew that (a) Battista was a police officer; and (b) the police officer(s) were attempting to arrest him. See Lawson, 46 Mass.App.Ct. at 629–630. This omission improperly lowered the Commonwealth's burden of proof. “It is insufficient to posit that based upon the evidence the jury could have concluded that the defendant knew [that Battista was a police officer and that the officers were attempting to arrest him]. Even if a jury could have so concluded, they were not told that they must find such knowledge existed in order to convict.” Thomas, 401 Mass. at 118.
The risk of a miscarriage of justice is heightened here, where the issues of when and whether the defendant knew that Battista was a police officer and that the officers were attempting to arrest him were highly contested at trial. Additionally, the jury acquitted the defendant of both charges of assault and battery on a police officer, which also required the jury to find that the defendant had actual knowledge that the individuals were police officers. Therefore, we conclude that there is a substantial risk of a miscarriage of justice.
The judgment on the indictment for resisting arrest is reversed, and the verdict is set aside. The judgment on the indictment for larceny of a motor vehicle is affirmed.
So ordered.