Opinion
No. 11–P–733.
2013-03-18
COMMONWEALTH v. Jeremy TAYLOR.
By the Court (BERRY, FECTEAU & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of resisting arrest under G.L. c. 268, § 32B. On appeal, the defendant argues that the Commonwealth's evidence was insufficient, that the trial judge erred in not sua sponte delivering two additional jury instructions—even though not requested—and that the defendant's new trial motion based on claims of ineffective assistance of defense counsel was incorrectly denied. We affirm.
1. Background. Viewing the trial evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979). One evening in March, 2009, at approximately 8:00 P.M., Officers Michael Brown, Sean Doherty, and Jihad Hasan were driving an unmarked police car along Washington Street in Dorchester. The officers saw the defendant walking in the direction they were driving. However, as the defendant got closer to the car, he turned away, while at the same time reaching toward his waist. The officers reversed direction, circled the block, and returned to where the defendant had been seen. During this second pass, the defendant made eye contact with the officers in the car. At that point, the defendant abruptly turned around and began walking away. Officers Brown and Doherty exited the car and announced that they were police officers. Although in plain clothes, both had police badges displayed on a chain around their necks.
Officer Brown asked the defendant if they could speak to him for a moment, to which the defendant replied, “fuck you man.” Brown then approached the defendant, who moved and turned away, shielding his body in a manner that, Officer Brown testified, suggested concealment of a firearm. Concerned for their safety, Officer Brown reached toward the defendant in an attempt to conduct a patfrisk. However, before Officer Brown touched him, the defendant punched Officer Brown in the chest with a closed fist.
Officer Brown grabbed the defendant and, with the assistance of Officer Doherty, pinned him to the hood of a nearby van. The third officer came to render assistance. A struggle ensued, as the defendant shouted, flailed, and attempted to punch and kick the officers. It took all three officers between approximately twenty seconds and one minute to secure and handcuff the defendant.
2. Sufficiency of the evidence. “An arrest occurs where 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 (2000), quoting from Commonwealth v. Cook, 419 Mass. 192, 198 (1994).
The defendant contends that the Commonwealth's evidence was insufficient as to the second and third elements, that the officers intended to make an arrest and that the defendant was aware of his impending arrest. We are not so persuaded.
Officer Brown testified that the defendant punched him in the chest at the start of the encounter.
First, given the defendant's physical hit directed at the officer, any reasonable person in the defendant's circumstances would have been aware of the likelihood of the police intent to effectuate an arrest. See Commonwealth v. Portee, 82 Mass.App.Ct. 829, 833 (2012). Second, the substantial police efforts which were needed to secure the defendant corroborated the intent to arrest. See Commonwealth v. Borges, 395 Mass. 788, 791 (1985).
The defendant was found not guilty of assault and battery on a police officer and disorderly conduct. That the jury found the defendant not guilty on these other charges, does not translate into insufficient evidence of his resisting arrest. “[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.” Commonwealth v. Medeiros, 456 Mass. 52, 57 (2010), quoting from Commonwealth v. Scott, 355 Mass. 471, 475 (1969).
The same factual background—the defendant's physical act of punching one officer and the ensuing struggle to complete his detention—constituted sufficient evidence that the defendant knew he was being arrested.
Even if the arrest was not warranted-a dubious proposition advanced by the defendant-this would not have entitled the defendant to resist, as “[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.” Commonwealth v. Moreira, 388 Mass. 596, 600 (1983).
That the officers never used the word “arrest” is not dispositive on the issue of the officers' intent. See Commonwealth v. Grandison, supra.
3. The jury instructions. The defendant argues that the trial judge erred in not sua sponte giving two additional jury instructions to the effect that: (1) the officers must have formed the intent to make an arrest when the resistance occurred; and (2) resisting a patfrisk does not constitute resisting arrest. As noted, there was no objection at trial; nor did the defendant request such instructions. We do not believe that these instructions were called for, and we see no error in the judge not sua sponte giving them.
As for the intent instruction, the trial judge's use of the model jury instruction for resisting arrest adequately conveyed that the officers must have intended to make an arrest. Furthermore, this jury instruction, by its plain terms, made it clear that in order to convict the defendant, the officers must have actually been attempting an arrest.
As to the patfrisk, the evidence is clear that the interaction between the police and the defendant had proceeded well beyond a patfrisk, and that the defendant was resisting arrest. Hence, such a patfrisk-based instruction was not warranted on the evidence.
4. The denial of the new trial motion. In the motion for new trial, the defendant contended (as on appeal) that his trial counsel made various errors and omissions during trial.
First, the defendant claims that his trial counsel was deficient in failing to object to the Commonwealth's questions regarding the amount of time it took the officers to handcuff the defendant as compared to a typical arrestee. Such time span information tends to prove actual resistance on the defendant's part. Because the questioning was proper, objection from defense counsel would have been futile. See Commonwealth v. Comita, 441 Mass. 86, 90–91 (2004).
Second, the defendant contends that his trial counsel was ineffective in failing to develop as a defense the officers' purported lack of intent to make an arrest. We have already addressed the issue in respect to the sufficiency of evidence.
Finally, the defendant claims that trial counsel's failure to request the additional jury instructions discussed in part 3, supra, amounted to ineffective assistance. We have already concluded that there was no error in the trial judge not giving such instructions. Hence, there was no ineffective assistance nor a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624–625 n.4 (1994).
Judgment affirmed.
Denial of motion for new trial affirmed.