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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Katykhin,
Hampden.
Present: Cowin, Mills, &
Green, JJ.
The case was heard by William W. Teahan,
Jr., J.
Joseph T. Gorman for the defendant.
Sidney E. Reavey, Assistant District Attorney, for
the Commonwealth.
MILLS, J.
On appeal from his conviction for resisting
arrest, G. L. c. 268, § 32B, the defendant claims that the
evidence was insufficient. The relevant portions of the statute are set forth
in the margin.[1] The defendant argues
that his behavior subjecting him to the charge (a) occurred after his arrest
had already been effected, and (b) in any event was so innocuous that it was
not contemplated by the statute, i.e., that the statute does not reach conduct
that interferes with an arrest but poses no threat to the bodily integrity of
the arresting officer, let alone a substantial risk of bodily injury. In
support of both arguments the defendant relies upon Commonwealth v. Grandison, 433 Mass. 135 (2001).
1. Background. In the light most favorable to the Commonwealth, see
Commonwealth v. Latimore, 378 Mass. 671, 676-678
(1979), the judge at the bench trial could have found as follows: while
investigating a traffic accident, uniformed West Springfield police officer Brian
Duffy recognized the defendant as the subject of an outstanding arrest warrant,
notified him that he was being arrested under the outstanding warrant,
handcuffed him, and led him to the marked police cruiser. The defendant
complied to that point, but when Officer Duffy opened
the door and asked the defendant to get in, he refused several times, became
defiant and uncooperative, and bantered back and forth with the officer.
Officer Duffy's right hand was on the defendant's left arm as the officer tried
to move the defendant into the cruiser. The defendant stood rigid, upright,
"almost like a plank of wood," and refused to bend or get into the
cruiser. The defendant began to pull away, starting a "tug of war."
The officer gave him a "quick spray" of a substance that is
"used to control subjects who are either under arrest or trying to be
under arrest or to break up certain acts of violence," after which the
defendant entered the cruiser.
The judge, in denying the defendant's motion for a required finding of not
guilty at the close of the Commonwealth's evidence, stated that the defendant
"through physical movement did engage in an act of force . . . by going
with his body in the direction opposite from which the officer sought to take
him to place him in the back of the cruiser," violating § 32B(a)(1). In announcing the ultimate guilty finding, the
judge stated that he found the defendant guilty because of "his mechanical
going in the direction opposite to what the officer sought to put him toward
the back of the cruiser."
2. Discussion. First, we conclude that for purposes of the statute the
defendant's recalcitrant behavior occurred while the police officer was "effecting" his arrest and before the arrest was
complete. Contrary to the defendant's claim, his arrest was not complete at the
point that he was handcuffed. Although certainly he had been "seized"
at that time in the constitutional sense, the defendant's arrest here had not
been "effect[ed]," within the specific meaning of G. L.
c. 268, § 32B, at least until he was fully detained in the cruiser.
His resistant conduct, immediately after being handcuffed, prevented and
preceded the conclusion of the sequence of events that consummated his arrest.
The defendant's reliance upon Commonwealth v. Grandison,
supra, is unpersuasive. While the court in Grandison
held that a conviction for resisting arrest "can, in no way, rest on
post-arrest conduct," id. at 145, the court was
addressing a defendant's behavior once he had been transported to the station,
a separate and distinct location from the place he had been handcuffed and
taken into custody. Indeed, the court noted that, "in different
circumstances, the 'continuing course of conduct' principle could conceivably
factor into the prosecution of a resisting arrest charge."
Second, we hold that the trial judge properly concluded that the defendant's
conduct was of a type prohibited by G. L. c. 268, § 32B(a)(1). Under that subsection, a suspect commits the
crime of resisting arrest when he uses or threatens to use physical force or
violence against the police officer or another. There is no requirement under
subsection (a)(1) that the Commonwealth show a
substantial risk of causing bodily injury to the police officer or another. The
judge found that the defendant used force in opposition to the officer when
refusing to enter the cruiser. This conduct met the plainly stated statutory
criteria for resisting arrest.[2]
Thus, viewing the evidence in the light most favorable to the Commonwealth, the
judge could have found beyond a reasonable doubt that the defendant resisted
arrest when he attempted to prevent Officer Duffy from effecting the arrest by
using physical force against the officer. The defendant's motions were
correctly denied both at the close of the Commonwealth's case and at the close
of all the evidence.
Judgment affirmed.
FOOTNOTES:
[1] "(a) A person
commits the crime of resisting 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." G. L. c. 268, § 32B.
[2] Our opinion does not address, in any way, purely
passive conduct not involving the use or threat of force or violence, such as
that characteristic of nonviolent protestors.