Opinion
10-P-1735
08-15-2011
COMMONWEALTH v. EDWARD WHITE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of resisting arrest, G. L. c. 268, § 32B. He appeals. We affirm.
1. Background. The Commonwealth presented the following evidence. On February 21, 2008, the defendant was involved in an altercation with two police officers in Quincy. The police officers testified to the following. After a police officer approached the defendant's stopped vehicle and ordered him to submit to a patfrisk, the defendant exited his vehicle with a hand in his pocket. The officer attempted to extricate the defendant's hand from the pocket, and a struggle ensued. Another officer arrived during the struggle and assisted his colleague. The defendant struck the second officer with his elbow during the struggle. All three men fell into the defendant's vehicle, with the two officers ordering the defendant, 'Stop resisting. Quincy police.' One of the officers secured the defendant with handcuffs on one hand, but the defendant continued to resist. Eventually, the officers subdued the defendant.
After the Commonwealth rested, the judge denied the defendant's motion for required findings of not guilty. The defendant testified on his own behalf, then rested. The jury found the defendant guilty of resisting arrest. The jury found the defendant not guilty of assault and battery on a police officer, G. L. c. 265, § 13D.
A third charge, witness intimidation, G. L. c. 268, § 13B, was dismissed by mutual consent before trial.
In this appeal, the defendant argues (1) insufficient evidence and (2) ineffective assistance of counsel.
2. Sufficiency of evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the Commonwealth presented sufficient evidence to convict the defendant of resisting arrest. Although evidence that a defendant is resisting a patfrisk and threshold questioning is not sufficient to constitute a violation of the resisting arrest statute, see Commonwealth v. Quintos Q., 457 Mass. 107, 111- 112 (2010) (resisting arrest statute does not apply where police detain individual to make threshold inquiry rather than arrest); Commonwealth v. Smith, 55 Mass. App. Ct. 569, 574-575 (2002), here, the Commonwealth presented evidence that during the initial struggle the defendant hit one of the officers, providing a basis for arrest, and that the defendant continued to struggle despite the officers shouting, 'Quincy police, stop resisting.' Compare Commonwealth v. Grant, 71 Mass. App. Ct. 205, 209-210 (2008). Sufficient record evidence thus existed to demonstrate that the defendant continued to resist the officers with physical force after a reasonable person would have understood that the officers were attempting to effect an arrest. See Commonwealth v. Grandison, 433 Mass. 135, 145-146 (2001). 'An arrest occurs where there is [1] 'an actual or constructive seizure of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained." Id. at 145. The Commonwealth met its burden.
The propriety of the attempt to patfrisk the defendant is not before us.
3. Ineffective assistance. Ineffective assistance of counsel requires the defendant to show that the 'behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer' and if so, that 'it has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant has failed to make the required showing. The judge properly instructed on the elements of resisting arrest, and trial counsel's failure to request a novel instruction (on the distinction between an arrest on the one hand, and a threshold inquiry and patfrisk on the other, and that the jury must find that the defendant resisted the former and not merely the latter) did not render his assistance substandard.
Judgment affirmed.
By the Court (Mills, Meade & Carhart, JJ.),