Opinion
21-P-379
04-13-2022
COMMONWEALTH v. Elena HOWE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury convicted the defendant, Elena Howe, of resisting arrest in violation of G. L. c. 268, § 32B. On appeal, the defendant claims error in the denial of her motion for a required finding of not guilty because the Commonwealth presented insufficient evidence that (1) she knew that the officers were placing her under arrest and (2) her movements were voluntary. We affirm.
The defendant was also charged with seven counts of armed assault with intent to murder, G. L. c. 265, § 18 (b ), which were amended to assault by means of a dangerous weapon. The judge granted the defendant's motion for a required finding of not guilty of four counts of assault by means of a dangerous weapon, and the jury found her not guilty of the remaining three counts.
Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. In the early morning of December 7, 2018, seven Worcester police officers arrived at 123 Hamilton Street and heard the defendant scream from inside the apartment that she wanted to "kill [her]self" and had a knife to her throat. Through a window, Officers Kubiak and Chau saw pools of blood on the floor in the apartment; after the defendant ignored commands to open the door, Officer Kubiak used a battering ram to break down the back door.
When Officer Kubiak entered the apartment, the defendant ran away from him and went into a bathroom, contrary to his orders to stop and show her hands. After Officer Kubiak kicked open the bathroom door, the defendant charged at him with a glass shard raised above her head. The defendant was twice hit with a taser but continued to charge. When the defendant brought the shard of glass within inches of one officer's neck, two others punched her in the face. Eventually, an officer grabbed the defendant's wrist and the officers brought her to the ground, where she flailed her arms and legs, ignoring commands to drop the glass. While the defendant was on the ground, Officer Kubiak ordered her to place her hands behind her back and told her that she was under arrest; she responded by screaming expletives and thrashing around. Twice more officers punched the defendant in the face while she continued to struggle. The defendant tucked her arms underneath her to avoid being handcuffed. A third taser strike was also ineffective to bring the defendant under control. After an officer announced that he planned to readminister his taser in an attempt to get the defendant to bring her arms out from under her, the defendant said "I give up," pulled her arms out, and was handcuffed.
Discussion. A defendant resists arrest if "[she] knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor ..., 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 (a ). "[T]he crime [of resisting arrest] is committed, if at all, at the time of the ‘effecting’ of an arrest." Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting G. L. c. 268, § 32B. "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.’ " Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting Grandison, supra. "The standard for determining whether a defendant understood that [she] was being arrested is objective -- whether a reasonable person in the defendant's circumstances would have so understood." Grant, supra at 208. When we review the sufficiency of the evidence, "[the] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Here, the standard was met. A rational trier of fact could have found that the arrest was effectuated when the officers collectively brought the defendant to the ground and Officer Kubiak told her that she was under arrest and ordered her to put her hands behind her back. At that moment, rather than complying, the defendant tucked her arms underneath her torso and continued to struggle while the officers attempted to place handcuffs on her wrists. The evidence was sufficient to permit the jury to find that the defendant resisted arrest when a reasonable person in her place would have understood that she was being arrested. Contrast Commonwealth v. Quintos Q., 457 Mass. 107, 110-112 (2010) (no resisting arrest where officers failed to communicate intent and reasonable person would not believe he was being arrested). There was also sufficient evidence for the jury to conclude that the taser strikes -- which (according to testimony) are designed to make muscular control impossible -– were ineffective, and that the defendant's movements were voluntary, rather than a result of being tased.
While there was conflicting testimony regarding the details of this brief, violent struggle and the effectiveness of the third attempt to tase the defendant, the jury were entitled to resolve the inconsistencies, which they did by rendering their verdict in the case. See Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 437 (2006) ("With few exceptions, the task of assessing the cogency of evidence and resolving conflicting testimony is the exclusive province of the fact finder"). As such, the jury were permitted to find that the defendant resisted after being told she was under arrest, and that her actions were her own because the taser strikes were ineffective.
There was no error.
Judgment affirmed.