Commonwealth v. Knight

916 N.E.2d 1011, 75 Mass. App. Ct. 735, 2009 Mass. App. LEXIS 1406
CourtMassachusetts Appeals Court
DecidedNovember 18, 2009
DocketNo. 08-P-983
StatusPublished
Cited by5 cases

This text of 916 N.E.2d 1011 (Commonwealth v. Knight) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Knight, 916 N.E.2d 1011, 75 Mass. App. Ct. 735, 2009 Mass. App. LEXIS 1406 (Mass. Ct. App. 2009).

Opinion

Meade, J.

After a jury trial, the defendant was convicted of resisting arrest in violation of G. L. c. 268, § 32B.1 On appeal, the defendant claims the judge erred in not giving the defendant’s requested jury instruction that a resisting arrest conviction cannot rest on postarrest conduct. We affirm.

1. Background. During the early evening hours of July 20, 2006, State police Trooper Ron Solimini was on routine patrol in Boston when he stopped a yellow Honda automobile because [736]*736it had excessive window tint.2 When Solimini first approached the car, he thought he saw someone throw something out of a rear, passenger side window. The car had five occupants, four women and one man, the defendant, who was seated in the back seat behind the driver. When he used his flashlight to look in the back seat, Sohmini saw the female in the middle of the back seat reaching forward and grabbing for something, which she said was a cellular telephone. He also noticed that both the defendant and the woman seated next to the other rear door were slouched against their doors as though they were concealing something.

Based on what he had seen, Solimini asked everyone inside the car for their names and dates of birth. With the exception of the defendant, all cooperated. The defendant looked away from Solimini, and ignored the request for his name. When Solimini again asked for the defendant’s name, the defendant replied, “[T]his is fucking bullshit, this is because we’re black, I don’t have to give you anything.” In response to Solimini’s third request for his name and identification, the defendant replied, “I don’t have to give you anything.” Based on the defendant’s demeanor and furtive behavior, as well as that of the other passengers, Solimini perceived the defendant as a threat and asked him to leave the vehicle so he could pat frisk him for a weapon.

The defendant reluctantly got out of the car. Once he was outside, the defendant became very aggressive and called Solimini “racist motherfucker” and “white boy.” He said, “[W]hat are you going to do, you’re not going to search me,” took “almost a fighting stance,” “bladed himself away from” Solimini, crossed his arms, and said, “[YJou’re not going to search me, what are you going to do about it[?]” Solimini asked the defendant to mm around and place his hands behind his back so Solimini could pat frisk him for weapons. The defendant refused. Solimini handcuffed the defendant to protect both of them. The defendant called Solimini “a fucking dickhead,” screamed for help, and yelled, “[Discrimination, discrimination”; he was “out of control.” At this point, Solimini placed the defendant under arrest for disorderly conduct.

[737]*737Solimini called for backup and waited for other troopers to arrive. He could not pat frisk the defendant until other troopers arrived because the defendant was spinning away from him and he could not get a grasp on the defendant even though he was handcuffed. Traffic was backing up because of the defendant’s behavior. Once the other troopers arrived, Solimini was able to pat frisk the defendant. He did not find any weapons. While Troopers Shervan, Franzella, and Cameron were attempting to place the defendant in Solimini’s cruiser, he continued to be belligerent, and screamed and yelled at the troopers. He called them “racist motherfuckers” and refused to get inside. As Trooper Shervan was guiding the defendant into the cruiser, the defendant gave a backward “donkey kick” to Shervan’s leg. Trooper Cameron “grabbed the backseat of [the defendant’s] pants” and slid him into the cruiser. Inside the cruiser, the defendant continued to be belligerent and spouted obscenities. The driver of the Honda automobile was written a citation and all four women were permitted to leave.

In his defense, the defendant testified to a different version of the events. In his version, he was compliant and cooperative with Trooper Solimini during the entire roadside stop. Outside the car, the defendant “assumed the position,” was pat frisked, and then was handcuffed for safety. After Solimini requested backup, they waited in silence for a few minutes until the other troopers arrived. A second search of the defendant revealed nothing, and the defendant was put in the cruiser. Because the defendant was over six feet tall, he requested help to get in the cruiser; the troopers told him “to shut up and get in the car.” When the defendant was unable to get in on his own, a trooper forced him inside. The defendant denied ever resisting arrest, kicking any of the troopers, or yelling.

2. Discussion. The defendant claims that he was arrested when he was ordered out of the car and told to “assume the position,” and that all of his subsequent conduct could not be considered by the jury in support of the resisting arrest charge. Because the judge erroneously refused his requested instruction, he claims, the jury were not prevented from considering postarrest conduct. We disagree.3

[738]*738In determining whether the evidence required an instruction concerning action taken during the incident in question, here postarrest conduct, we view the evidence in its light most favorable to the defendant. See Commonwealth v. Kendall, 451 Mass. 10, 11 (2008) (necessity defense instruction); Commonwealth v. Espada, 450 Mass. 687, 690 (2008) (self-defense instruction). Beginning with the defendant’s own testimony, we find it provides him no assistance because he claimed that he offered no resistance at all as opposed to segmented episodes of resistance. See Commonwealth v. Grandison, 433 Mass. 135, 143-147 (2001). Similarly unhelpful to the defendant is Trooper Solimi-ni’s testimony, which described the defendant’s continuous course of resistance. Trooper Cameron testified that when he arrived, the handcuffed defendant was “becoming unruly, [and] was shouting and yelling.” Upon her arrival, Trooper Carney testified that she saw the defendant standing on the sidewalk handcuffed. “As [she] turned her attention to the females in the motor vehicle,” she noticed the defendant causing a “commotion,” “[Resisting, struggling [and] not being cooperative,” as the troopers tried to put him in the cruiser. Thus, in the light most favorable to the defendant, there may have been a brief pause in the defendant’s resistive effort. However, as we determine below, this is insufficient to justify the requested instruction.

“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.’ ” Id. at 145, quoting from Commonwealth v. Cook, 419 Mass. 192, 198 (1994). For purposes of G. L. c. 268, § 32B, the act of preventing, or attempting to prevent, the effecting of an arrest does not invite a snapshot of a moment in time that is deemed to be “the arrest” after which the defendant’s behavior becomes wholly irrelevant.4 Rather, effecting an arrest is a process [739]*739that begins when the above three criteria are present and 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.

Contrary to the defendant’s claim, his arrest was not complete at the point when he was ordered out of the car or even when he was handcuffed. See Commonwealth v.

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Cite This Page — Counsel Stack

Bluebook (online)
916 N.E.2d 1011, 75 Mass. App. Ct. 735, 2009 Mass. App. LEXIS 1406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-knight-massappct-2009.