Opinion
15-P-228
03-03-2016
COMMONWEALTH v. SHANNELLE K. CHISHOLM.
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
The defendant, Shannelle K. Chisholm, appeals from the judgments on her convictions of resisting arrest, in violation of G. L. c. 268, § 32B, and disorderly conduct, in violation of G. L. c. 272, § 53, asserting that the evidence was insufficient to support the convictions. We affirm.
Background. At approximately 10:20 A.M. on December 1, 2013, State police Trooper Steven LaRocco clocked the defendant driving seventy-four miles per hour on Route 6 in Barnstable where the posted speed limit was fifty-five miles per hour. In his marked cruiser with the lights on and using his air horn several times, LaRocco attempted to stop the defendant, but she ignored his signals. LaRocco eventually positioned his cruiser at an angle in front of the defendant's vehicle on an exit ramp and forced her to pull over. When LaRocco, who was wearing his police uniform with his badge displayed, approached the defendant's vehicle, she refused to roll down her window or hang up her cellular telephone (cell phone). After the defendant ignored LaRocco's repeated requests that she hang up her cell phone and roll down her window, and also ignored LaRocco's repeated warnings that he would break the driver's side window, he shattered the window by hitting it in the bottom right corner with the butt of his baton. The defendant refused to step out of the vehicle, so LaRocco cut the defendant's seatbelt, after having warned that he would do so, and attempted physically to remove her. Fending off LaRocco's attempts to remove her, the defendant grabbed the passenger door handle and latched onto the interior of the vehicle. LaRocco informed the defendant that he was placing her under arrest for disorderly conduct. LaRocco radioed for assistance. The defendant telephoned 911, and the dispatcher also informed her that she was under arrest for disorderly conduct and should cooperate.
After LaRocco and the dispatcher had both advised the defendant that she was under arrest, she still refused to exit her vehicle. LaRocco then warned the defendant two or three times that if she did not exit the vehicle he would be forced to use his pepper spray. When she continued to resist, LaRocco eventually sprayed her with a burst directed at her forehead. Two more State police troopers soon arrived to aid in the arrest. LaRocco and another trooper were then able to enter the vehicle, remove the defendant, and handcuff her. Throughout the incident, traffic slowed and backed up on the exit ramp.
Resisting arrest. The defendant contends that the evidence was insufficient to sustain the conviction of resisting arrest because the Commonwealth failed to prove that she knew she was under arrest or that her conduct created a substantial risk of causing bodily injury to the police officer or another.
A defendant resists arrest if she "knowingly prevents or attempts to prevent a police officer, acting under the color of his official authority, from effecting an arrest of the [defendant] 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." G. L. c. 268, § 32B, inserted by St. 1995, c. 276.
The 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) (citation omitted). "An arrest occurs where 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.'" Ibid., quoting from Commonwealth v. Cook, 419 Mass. 192, 198 (1994). Even if a "stop for purposes of making a threshold inquiry is not an arrest," once an inquiry becomes an arrest, the defendant must comply. Commonwealth v. Smith, 55 Mass. App. Ct. 569, 574 (2002). "The standard for determining whether a defendant understood that [s]he was being arrested is objective -- whether a reasonable person in the defendant's circumstances would have so understood." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).
Here, the jury could have found that even if the defendant did not know she was under arrest before LaRocco verbally informed her, once he announced this intention -- confirmed by the 911 dispatcher -- the defendant knowingly and aggressively continued to resist. LaRocco indicated his intent to arrest through both words and actions, and the defendant continued to prevent the arrest from being effected rather than comply or submit once she was aware of the intent to arrest. The defendant latched onto the interior of the vehicle, and LaRocco was unable to remove her, even after using pepper spray. He required assistance from additional officers to both remove her from the vehicle and to place her in handcuffs. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), a rational trier of fact could have found beyond a reasonable doubt that the defendant resisted the trooper's efforts after any reasonable person would have known she was under arrest.
As to the defendant's claim that the Commonwealth failed to show that she created a "substantial risk of causing bodily injury to [the] police officer or another," G. L. c. 268 § 32B, inserted by St. 1995, c. 276, the Commonwealth meets its burden if it proves that the defendant participated in conduct that could have caused an officer or another to be injured. See Commonwealth v. Katykhin, 59 Mass. App. Ct. 261, 263 (2003). A rational trier of fact could have concluded that the defendant's behavior exacerbated and prolonged an otherwise routine traffic stop, resulting in a traffic backup on the off-ramp that created a substantial risk of bodily injury to both LaRocco and the public.
In addition, the defendant's behavior inside the vehicle could have caused the officers, or herself, risk of substantial bodily injury. Even stiffening one's arms when an officer is attempting to use handcuffs "fall[s] within the statutory language . . . [of] us[ing] 'any other means' that created a 'substantial risk of causing bodily injury.'" Grandison, 433 Mass. at 145. Here, the defendant's behavior was more apt to injure officers than just stiffening her arms. LaRocco required assistance to effectuate the arrest; thus, the defendant's actions put additional officers in harm's way.
Disorderly conduct. The crime of disorderly conduct requires the Commonwealth to prove that a person,
"with purpose to cause public inconvenience, annoyance or alarm, or recklessly creat[es] a risk thereof, [s]he (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively course utterance, gesture or display, or
addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor."Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989), quoting from Alegata v. Commonwealth, 353 Mass. 287, 304 (1967). The defendant argues that the Commonwealth failed to show that her conduct caused inconvenience, annoyance, or alarm to the public with no legitimate purpose. We disagree.
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found beyond a reasonable doubt that the defendant's actions resulted in an inconvenient, annoying, and potentially risky disruption of the traffic flow. See Commonwealth v. Bosk, 29 Mass. App. Ct. 904, 906-907 (1990). LaRocco testified that "vehicles were . . . slowing down and actually stopping to watch the incident," and that "[t]here was a backup starting to occur in the right lane for the exit." Such testimony "demonstrates that by [her] conduct [s]he was risking not only [her] own safety but that of others." Id. at 907.
The Commonwealth must also prove that "the defendant's conduct served no legitimate purpose when it claims that the defendant created a hazardous or offensive condition." Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548 (1999). The present case is readily distinguishable from those in which the Commonwealth failed to disprove a "legitimate purpose." Ibid. The defendant's conduct had no First Amendment expressive purpose, such as a political protest at Otis Air Force Base. Contrast Feigenbaum, supra at 472-475. Nor did she have any other justification, such as double-parking while waiting for her children to be released from their elementary school. Contrast Commonwealth v. Zettel, 46 Mass. App. Ct. 471, 472, 475-476 (1999).
During the stop and the arrest, the defendant inexplicably ignored LaRoccco's lawful requests and responded to him with profanity. The jury could have rationally concluded beyond a reasonable doubt that her noncompliance and combative behavior were unrelated to any legitimate purpose.
Judgments affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.