Opinion
20-P-313
06-23-2021
COMMONWEALTH v. Barry SPENCER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his jury conviction for resisting arrest, G. L. c. 268, § 32B, arguing that the judge should have allowed his motion for a required finding of not guilty. We affirm.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence at trial established the facts as follows. On December 11, 2010, Boston police Sergeants Brian Mahoney and John Klokman approached the defendant and informed him that he was under arrest. Sergeant Mahoney then tried to place the defendant's hands behind his back to handcuff him, but the defendant began to "move away from [Sergeant Mahoney], to move his shoulders and his feet back and forth to try to pivot away from [Sergeant Mahoney's] grasp on his arms." Sergeant Mahoney tried unsuccessfully to move the defendant closer to a wall, eventually bringing him to the ground in order to try to handcuff him.
Once on the ground, the defendant "almost lock[ed]" his hands beneath his body, between his stomach and the ground, so that the two officers could not pull his hands behind his back to handcuff him. During the struggle, Sergeant Mahoney called for assistance from other officers. Eventually, Sergeant Mahoney, with the help of three other officers, handcuffed the defendant. When the officers lifted him from the ground, there was a small folding knife under him where his hands had been.
"A defendant resists 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." Commonwealth v. Soun, 82 Mass. App. Ct. 32, 33-34 (2012), quoting Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 356 (2010). The defendant maintains that there was insufficient evidence to convict him of resisting arrest because the evidence did not prove that he attempted to prevent his arrest by using or threatening to use physical force, or using any other means which created a substantial risk of causing bodily injury to the police officer.
At oral argument, the defendant maintained that the arrest occurred at the moment when Sergeant Mahoney first tried to handcuff him, and thus his struggling happened after arrest. "Effecting an arrest ‘is a process that ... ends when the person is fully detained by his submission to official force or placed in a secure location from which he can neither escape nor harm the police officer or others nearby." Soun, 82 Mass. App. Ct. at 34, quoting Commonwealth v. Knight, 75 Mass. App. Ct. 735, 738-739 (2009). Therefore, the arrest spanned from when Sergeant Mahoney informed the defendant that he was under arrest until police successfully secured him.
The defendant's conduct in stiffening his arms under his body so that police could not handcuff him sufficed to prove that he resisted arrest. See Commonwealth v. Grandison, 433 Mass. 135, 143-144 (2001) (defendant "stiffened his arms" and "never complied with a request to put his hands behind his back," so that it took four officers to successfully handcuff him); Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 469 (2006) (to successfully handcuff him, two officers had to "push[ ] the defendant against the wall, thus gaining a physical advantage over him"). This defendant was "actively uncooperative in his behavior as he opposed the arresting officers' attempts to handcuff him." Id. His conduct showed an "active, physical refusal to submit to the authority of the arresting officers, and opposition to their efforts to effect his arrest." Id. at 469-470. "The type of resistance the defendant perpetrated could have caused one of the officers to be struck or otherwise injured," especially because the defendant had his hands under his body near the knife. Grandison, 433 Mass. at 145. See Maylott, 65 Mass. App. Ct. at 469 ("While the defendant's exertion of force in an attempt to prevent his arrest may not have overcome the police officers, the circumstances ... presented a substantial risk of injury to them"); Commonwealth v. Lender, 66 Mass. App. Ct. 303, 306 (2006) ("The defendant's resistance to being handcuffed and placed in the cruiser is sufficient resistance to amount to physical force or violence or a means creating a substantial risk of causing bodily injury to the arresting officer" [quotations omitted]). Accordingly, we conclude that a rational trier of fact could have found the defendant's conduct presented a substantial risk of bodily injury to the officer, in violation of G. L. c. 268, § 32B (a ).
Judgment affirmed.