Opinion
18-P-1676
05-07-2020
COMMONWEALTH v. AKEVI COLEMAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was found guilty of resisting arrest, in violation of G. L. c. 268, § 32B, and disorderly conduct, in violation of G. L. c. 272, § 53. He appeals, arguing that there was insufficient evidence to support the convictions. We affirm.
The judge also found the defendant responsible for a "number plate" violation, a civil motor vehicle infraction.
The defendant makes these arguments for the first time on appeal, having failed to move for a required finding of not guilty at trial. Nevertheless, "[w]e consider the legal sufficiency of the evidence even if a defendant fails to move for a required finding of not guilty because 'findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.'" Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001), quoting Commonwealth v. McGovern, 397 Mass. 863, 867 (1986).
Background. At approximately 10:10 P.M., while parked at a gas station in Canton on Route 138 near the entrance to Route 93, State Police Trooper Peter Towle observed the defendant driving an Infinity motor vehicle without a front registration plate, in violation of G. L. c. 90, § 6. Towle followed the defendant onto the Route 93 on-ramp; once on Route 93 traveling south, Towle activated his cruiser's lights and initiated a motor vehicle stop in the breakdown lane, just prior to exit 1A onto Route 95 south. This is an area with heavy traffic; there are two lanes of traffic going toward exit 1A to Route 95 south, and another four lanes of traffic continuing onto Route 128 north -- "a high area for crashes . . . because all of the traffic coming off 138, coming down 93, and either going to 128 or 93." Furthermore, the small size of the breakdown lane meant that both vehicles were "stopped with [their] tires nearly on top of" the fog line, and Towle was approximately three feet into the nearest traffic lane (lane one) during the stop. As he approached the Infinity, Towle saw the defendant reach "down out of view to [the defendant's] right, and [the defendant's] shoulder and arm dipped down to the passenger seat [area] well below the dashboard and anywhere where the glove box would be." Towle testified that, based on his experience stopping vehicles, the defendant's movement was inconsistent with reaching for a wallet or registration; rather, the defendant's movement made him "fear for his safety, as if [the defendant] was reaching for, or hiding an unknown object or possibly a dangerous weapon."
Towle testified that the month before trial he had stopped 134 vehicles.
Approaching the driver's side of the Infinity, Towle asked the defendant what he was reaching for; the defendant replied "nothing" and immediately became "angered and belligerent." Fearing for his safety, Towle then ordered the defendant to get out of the car; after the defendant refused several times, Towle opened the defendant's door and "escorted him out of the vehicle." That is, the defendant initially "ripped his arm away," and Towle took him out of the car "with the modified arm bar." At that point, the defendant was against the door jam and the door of the defendant's car was two to three feet into lane one.
Towle testified that the defendant immediately called him a "fucking pig," and also said, "You stopped me because I'm black."
Towle attempted to pat frisk the defendant, but he could not get the defendant's right hand behind him. The defendant "was completely tensed up and swearing, yelling, screaming, screaming for help. [Towle] told him the whole time to just be -- remain calm." Towle testified that he said, "I just want to make sure you don't have a weapon on you, okay?" The defendant pushed his body off the car with his right arm into Towle's body and attempted to spin to face Towle. Towle testified that he was unable to reach his radio to call for backup, and kept the defendant pinned in the door jam because he continued to believe that the defendant was trying to retrieve a weapon.
Moreover, Towle feared that the struggle would end up on the ground and the two would roll into oncoming traffic. Towle testified that the defendant's noncompliance forced oncoming traffic to swerve out of lane one, and that during the struggle he was attempting to get the two of them to the rear of the defendant's car to get away from the travel lane, but the defendant's behavior made that impossible.
After approximately two minutes, off-duty Boston Police Captain Danilecki pulled into lane one and put on his blue lights to divert traffic from that lane. Danilecki put on his Boston police uniform shirt as he arrived and went to assist Towle. Together, Towle and Danilecki were able to move the defendant out of the traffic lane and handcuff him.
Once handcuffed, the defendant continued to scream slurs and attempted to rip away from the officers as they were escorting him to Towle's cruiser. The officers moved the defendant to the rear of the cruiser, where he continued to rip away and tense up. Towle also testified that Danilecki had to hold up one of the defendant's legs because he was attempting to "donkey kick" the officers. The defendant refused to separate his feet to allow Towle to conduct a patfrisk; the officers never were able to complete the patfrisk until the defendant reached the State police barracks for booking.
Discussion. The defendant's only argument on appeal is that the evidence was insufficient to prove either that he resisted arrest or that he was disorderly. In assessing the sufficiency of the evidence, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotation omitted). Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018). Because this was a jury-waived trial, we begin by assuming that the judge had "correctly instructed himself as to the manner in which the evidence [wa]s to be considered in his role as factfinder." Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 451 (2005), quoting Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002).
1. Resisting arrest. "In assessing the sufficiency of the evidence to support a charge of resisting arrest, . . . the proper focus is whether, at the time of the interaction, the officer, acting under color of authority, arrested the defendant, and whether the defendant resisted that arrest with force or violence or a means creating a substantial risk of causing bodily injury to the officer." Commonwealth v. Lender, 66 Mass. App. Ct. 303, 305 (2006).
The defendant contends that there was insufficient evidence to establish that he knew Towle intended to arrest him; insufficient evidence to prove that Towle was acting under the color of his official authority; and insufficient evidence to show that he was not acting in reasonable self-defense in response to what he alleges was Towle's use of excessive force. We disagree.
First, "[i]n considering whether the person detained understood that he or she was under arrest, we consider 'not what the defendant . . . thought, but what a reasonable [person], innocent of any crime, would have thought in the defendant's shoes.'" Commonwealth v. Quintos Q., 457 Mass. 107, 109 (2010), quoting Commonwealth v. Borges, 395 Mass. 788, 792 n.3 (1985). While the Commonwealth did not present direct evidence that the officers told the defendant that he was under arrest, viewed in the light most favorable to the Commonwealth, a reasonable person in the defendant's shoes would have known that was the case. See Lender, 66 Mass. App. Ct. at 306.
Towle, a uniformed police officer, stopped the defendant's car with his blue lights flashing. He repeatedly told the defendant to get out of his car. When the defendant refused to comply, Towle physically removed and pinned the defendant against his car. Moreover, Danilecki arrived on the scene with a police car, put on his Boston police uniform shirt, and indicated that he was an off-duty police officer and prepared to assist Towle. Together, Towle and Danilecki handcuffed the defendant and placed him in the rear of Towle's cruiser.
On these facts, we are satisfied that a reasonable person in the defendant's position would have understood that he was being arrested. Commonwealth v. Soun, 82 Mass. App. Ct. 32, 32 (2012) ("an order by the police to turn around and place one's hands behind one's back is sufficient to satisfy the prong of the resisting arrest statute, which requires the Commonwealth to prove that a reasonable person understood that an arrest was being effected").
Second, we reject defendant's argument that there was insufficient evidence to prove that Towle was acting under the color of his official authority. The defendant argues that Towle exceeded the scope of a permissible stop and patfrisk. However, in this context, the proper avenue for challenging the legality of the arrest is found under G. L. c. 268, § 32B (b). The statute makes clear that
"[i]t shall not be a defense to a prosecution under this section that the police officer was attempting to make an arrest which was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive
force giving rise to the right of self-defense. A police officer acts under the color of his official authority when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him." G. L. c. 268, § 32B (b).
As we have said, G. L. c. 268, § 32B, "is a compromise of two views: (i) the person arrested has no right to resist the arrest even if illegal, (ii) he has a right to resist (proportionately) an illegal arrest." Urkiel, 63 Mass. App. Ct. at 453. Here, there was evidence that Towle made a judgment in good faith that the defendant should be arrested. The stop of the defendant's car was lawful, and Towle observed the defendant make what he believed was a furtive movement. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002). The defendant then disobeyed Towles's order to get out of the car and, once out of the car, he resisted Towle's attempt to pat frisk him. Finally, restraining the defendant required the assistance of a second officer. On these facts, we cannot conclude that Towle violated the defendant's constitutional rights, much less that he did so knowingly and egregiously. See Urkiel, supra.
Third, the defendant's self-defense argument also fails. He contends that the Commonwealth did not provide sufficient evidence to prove resisting arrest because he was acting in self-defense in response to Towle's use of excessive force. The threshold questions when an arrestee asserts the privilege of self-defense at trial are (1) "whether the officer used excessive force," and (2) "whether the arrestee used reasonable force to resist the excessive force." Commonwealth v. Moreira, 388 Mass. 596, 602 (1983).
The defendant did not argue at trial that Towle used excessive force while effecting the arrest. Rather, the defendant admitted to being angry for "being pulled out of the vehicle for no good reason"; further, he asserted that Towle should have expected the defendant's reaction because Towle was attempting to "search [the defendant] without having reasonable suspicion" and "pat and frisk [him] without having probable cause." The law is clear that "in 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, regardless of whether the arrest was unlawful in the circumstances." Moreira, 388 Mass. at 601. Accordingly, the defendant was not privileged to use self-defense to resist the arrest. In sum, we are satisfied that the Commonwealth presented sufficient evidence for the judge to find the defendant guilty of resisting arrest.
2. Disorderly conduct. The defendant also argues that the evidence was insufficient to support his conviction of disorderly conduct. To prove disorderly conduct, the Commonwealth must establish that the defendant, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," either (1) engaged "in fighting or threatening, or in violent or tumultuous behavior," or (2) created "a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor" (quotation omitted). Commonwealth v. Chou, 433 Mass. 229, 232 (2001). The defendant argues that the evidence was insufficient to establish that his conduct was tumultuous or that he created a hazardous or physically offensive condition that served the public with no legitimate purpose. We are satisfied that the evidence was sufficient to support both theories.
The Commonwealth contends that the defendant's disorderly conduct conviction is not properly before us because it was placed on file. "[T]he placing of a case on file . . . suspend[s], for as long as the case remains on file, a defendant's right to appeal alleged error in the proceeding." Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). The defendant, however, must consent to the filing. See id. Here, since the judge neither sought nor obtained a statement of the defendant's consent, the rule does not apply. See Commonwealth v. Caetano, 470 Mass. 774, 777 (2015), rev'd on other grounds, Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), citing Delgado, supra ("a defendant has a right to appeal a conviction on file without [his] consent"). This case falls within that exception.
In support of his argument, the defendant relies on Urkiel, 63 Mass. App. Ct. at 445 (wrongly cited in his brief as "Commonwealth v. Moreira, 63 Mass. App. Ct. 445 [2005]") for the proposition that it would be "'incongruous' to acknowledge a defense of self-defense on charge of resisting arrest, and yet permit conviction for assault and battery based on same conduct." In Urkiel, however, the defendant was acquitted of assault and battery on a police officer on the grounds that the defendant was acting in self-defense against excessive force used by the officers. Id. We reasoned that conduct alleged to be an assault and battery on an officer, but later found to be the lawful use of self-defense in proportion to excessive use of force of the arresting officer, is precisely the defense contemplated by G. L. c. 268, § 32B (b). Id. at 453. Accordingly, in that case we assigned error in the trial judge's failure to consider the defendant's claim of self-defense for the charge of resisting arrest. Id. at 454. Here, the defendant did not assert at trial that Towle used excessive force in effecting the arrest; further, the defendant was not charged with assault and battery on a police officer.
Tumultuous behavior is conduct that may be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance. See Commonwealth v. A Juvenile, 368 Mass. 580, 596-597 (1975). "While susceptible to multiple meanings, see Commonwealth v. Sholley, 432 Mass. 721, 727-728 . . . (2000), 'tumultuous behavior,' for the purposes of [G. L. c. 272,] § 53, includes the refusal to obey a police order." Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 (2009).
Here, the evidence was sufficient to find that the defendant engaged in tumultuous behavior. The defendant immediately became angry and belligerent, berating Towle with loud profanities; he repeatedly refused to comply with Towle's exit orders; he resisted Towle's initial attempts to remove him from the car; and he was removed from the car with force. See Commonwealth v. Mulero, 38 Mass. App. Ct. 963, 965 (1995). Once out of the car, the defendant continued to berate Towle with profanities, resisted Towle's attempts to conduct a patfrisk by refusing orders to give up his right hand; he also pushed his body off the car into Towle. A second officer was required to subdue the defendant. See Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 545, 548-549 (1999). Due to the location of the stop and the ensuing struggle, traffic in lane one attempting to exit onto Route 95 south was forced to swerve left out of lane one, and, Danilecki fully diverted traffic away from that lane when he arrived to assist. This evidence "demonstrates that by his conduct [the defendant] was risking not only his own safety but that of others." Commonwealth v. Bosk, 29 Mass. App. Ct. 904, 906 (1990). Contrast Commonwealth v. Zettel, 46 Mass. App. Ct. 471, 475 (1999) (jury not warranted in finding defendant's behavior tumultuous).
Finally, the evidence was sufficient to support an inference that the defendant's actions had no legitimate purpose. The defendant contends that he was struggling only to keep Towle from exceeding the necessary scope of the patfrisk, and that it cannot be said that this conduct served no legitimate purpose. The defendant's conduct, however, is readily distinguishable from instances where the courts have determined that the defendant did have a legitimate purpose for his actions. See, e.g., Commonwealth v. Feigenbaum, 404 Mass. 471, 475 (1989) (legitimate purpose found in participating in political protest); Zettel, 46 Mass. App. Ct. at 475 (legitimate purpose found in defendant picking up young son when released from school). In sum, viewed in the light most favorable to the Commonwealth, we are satisfied that the evidence established that the defendant acted tumultuously and also created a hazardous or physically offensive condition by acts that served no legitimate purpose of the actor.
Judgments affirmed.
By the Court (Meade, Hanlon & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 7, 2020.