Opinion
14-P-1043
05-21-2015
COMMONWEALTH v. LESLIE RAMON.
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 trial, the defendant was convicted of resisting arrest. On appeal, she claims there was insufficient evidence for a rational jury to find that the officers intended to arrest her or that they adequately communicated that intent. We affirm.
The defendant was also convicted of failing to stop for a police officer. This charge was placed on file and is not before us on appeal.
The defendant claims that she was not under arrest at the time she deliberately resisted the officers' attempts to stop her from operating her vehicle. A person is deemed to be under arrest when 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." Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). The defendant agrees that the officers effected a seizure of her person when they placed her vehicle in park and removed the keys from the ignition against her will. Thus, we need only consider the second and third prongs.
1. The officers' intent to arrest. The defendant claims the officers did not form the intent to arrest her until after the officers had begun to remove her from the vehicle. We disagree. Officer Denio testified that although the decision to arrest the defendant was "fluid," he had formed the intent to do so no later than when the defendant "refused to submit" to the officers' authority. The defendant inaccurately claims she did not refuse to submit until the officers began to remove her from the vehicle against her will and she grabbed the steering wheel in resistance. However, in the light most favorable to the Commonwealth, the defendant first refused to submit much earlier, i.e., when she disobeyed Officer Paul's order to put the vehicle in park and, instead of complying, turned and drove the vehicle directly at the officers while shouting, "I know my rights, I don't have to stop." This, not the defendant's later attempt to resist by grabbing the steering wheel, was the moment the defendant "refused to submit" and, therefore, according to Officer Denio, was the earliest point when the officers formed the intent to arrest her. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). As a result, the evidence was sufficient as to the second prong of Grandison.
2. The defendant's understanding of officers' intent. The defendant next claims the officers never communicated their intent to arrest her at any point during the fracas. Instead, she claims the officers' actions and words merely communicated a "strong desire" that she exit the car. We disagree. In the light most favorable to the Commonwealth, the officers communicated their intent to arrest the defendant when they placed the defendant's vehicle in park and removed the keys from the ignition. Even though the officers did not specifically inform the defendant that she was under arrest, such a notice was not required in these circumstances. See Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 128 (2008) ("verbal notification to an individual that [she] is being arrested is not conclusive on the question when an arrest occurs"), S.C., 457 Mass. 102 (2010). In light of her belligerent behavior to that point, a reasonable person in the defendant's circumstances would have understood the officers' actions and words as manifesting an intent to arrest her, rather than merely expressing a "strong desire" that she exit for further inquiry. See Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36 (2012).
While a command to exit a motor vehicle is often issued on officer safety grounds, that was not the reason for those orders here. The defendant had just disobeyed several orders to stop and park the vehicle, and instead of complying had turned the vehicle directly towards the officers and driven it at them. By placing the vehicle in park and removing the keys, the officers had eliminated that threat to their safety, and as such, there would have been no other reason to remove the defendant from the vehicle except to arrest her.
Judgment affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 21, 2015.