Opinion
19-P-662
06-03-2020
COMMONWEALTH v. ITZAK I., a juvenile.
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 in the Juvenile Court, the juvenile was found delinquent of (1) resisting arrest, pursuant to G. L. c. 268, § 32B, and (2) carrying a dangerous weapon, pursuant to G. L. c. 269, § 10 (b). On appeal, the juvenile challenges the sufficiency of the evidence for both charges. We affirm.
Discussion. We view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Resisting arrest. To prove resisting arrest, the Commonwealth must show that the defendant knowingly prevented a police officer, acting under color of his official authority, from effecting an arrest by, inter alia, "using any other means which creates a substantial risk of causing bodily injury to such police officer." G. L. c. 268, § 32B (a) (2). See Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008). The crime occurs "at the time of the 'effecting' of an arrest" (citation omitted). Id. "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.'" Id., quoting Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). Whether a person understood he was being arrested is determined objectively by asking "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes." Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36 (2012).
On appeal, the juvenile asserts that a reasonable person in the juvenile's position would not have known that he was being arrested because the plain-clothed officers, who chased him, displayed their badges, and yelled "Police, stop," did not communicate clearly their intention to arrest him as he fled. At the latest, when tackled by State Police Lieutenant Alan Zani in the alley and ordered to "show [Zani] his hands and put [his] hands behind [his] back," a reasonable person would have known he was being arrested. See Commonwealth v. Powell, 459 Mass. 572, 581 (2011), quoting Commonwealth v. Sanderson, 398 Mass. 761, 766 (1986) ("arrest where police 'completely imped[ed]' defendant's movement"); Soun, 82 Mass. App. Ct. at 36-37 (order to turn around and place hands behind back sufficient for reasonable person to understand arrest being effected). The juvenile implicitly acknowledges as much. Thereafter, the juvenile continued to refuse to comply with the officer's commands. Ultimately, it required three or four additional officers to effect the arrest. Contrast Grant, 71 Mass. App. Ct. at 207, 210 (where officer drew gun and yelled for defendant to "get on the ground," defendant's subsequent flight not sufficient for resisting arrest because defendant quickly submitted to officers after being cornered).
The juvenile next contends that there was insufficient evidence that he used means that created a substantial likelihood of bodily harm to the police officers. After Zani tackled the juvenile and ordered him to put his hands behind his back, the juvenile continued to struggle, requiring the joint efforts of three or four officers to secure his hands and place them in handcuffs. Such a struggle created the requisite substantial risk of bodily injury. See Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 469-470 (2006) (active, uncooperative behavior in opposing officers' attempts to handcuff defendant, where two officers required to gain physical advantage over him, presented substantial risk of injury to officers). Moreover, throughout the struggle, the juvenile had a knife underneath him; the knife was in an open position. This active resistance from the juvenile with a knife in his possession created a substantial risk of bodily injury because he "could have caused one of the officers to be [stabbed] or otherwise injured, especially at the moment he freed his arm." Grandison, 433 Mass. at 144-145 (stiffening of arms to prevent officers from placing handcuffs on defendant created substantial risk of causing bodily injury).
Dangerous weapon. The juvenile next challenges the sufficiency of the evidence that the knife was a "dangerous weapon." General Laws c. 269, § 10 (b), makes it illegal for anyone to carry, inter alia, "a device or case which enables a knife with a locking blade to be drawn at a locked position." Zani described the knife's opening mechanism: "It's a locking opening. It has a little . . . lever to facilitate opening it." Moreover, the knife was admitted in evidence for the judge to examine. Contrast Commonwealth v. Higgins, 85 Mass. App. Ct. 534, 538 (2014) (in addition to lack of testimony, jury could not assess ease with which blade could be drawn into locked position where knife admitted into evidence in closed position and sealed in thick plastic bag). As we presume "judges in jury-waived trials know and correctly apply the law," Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005), the judge had a sufficient evidentiary basis to find that the knife had a mechanism, like a quick release, that allowed for the blade to be drawn at a locked position.
The Commonwealth appears to argue that the knife was a prohibited dangerous weapon because it has a three-inch blade; however, the Commonwealth does not point to any evidence that the knife also had "an automatic spring release device by which the blade is released from the handle," as required by G. L. c. 269, § 10 (b).
Contrary to the juvenile's contention, Zani's description was permissible. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013).
Adjudications of delinquency affirmed.
By the Court (Singh, Wendlandt & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 3, 2020.