Opinion
No. CR04-35708-S
September 28, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR RECONSIDERATION OF MOTION FOR JUDGMENT OF ACQUITTAL AND FOR ARTICULATION
The defendant was charged by information with the crimes of assault of an officer, in violation of General Statutes § 53a-167c, and interfering with an officer, in violation of General Statutes § 53a-167a. The case was tried to a jury which found him not guilty of the former charge and guilty of the latter. The defendant moved for judgment of acquittal. The court denied that motion on the record. The defendant now moves for reconsideration and for an articulation of the court's decision of that motion.
The gravamen of the defendant's motion is that his arrest with which the jury necessarily found he interfered was illegal, made without probable cause, and that pursuant to State v. Gallagher, 191 Conn. 433, 443, 465 A.2d 323 (1983), and State v. Brocuglio, 264 Conn. 778, 826 A.2d 145 (2003), which reversed Gallagher in part, he was privileged to reasonably resist the arrest.
The jury could have found that on the date of the incident, the defendant and his sister had a vociferous argument in a house, which was owned jointly by the defendant and his step-father. In the course of the argument, the defendant directed profanity at his sister. Both the defendant and his sister called the New Haven police department. Officer David Runlett, followed by Officer Victor Fuentes, responded. Runlett spoke with the defendant's sister and then walked over to the defendant, who was outside of the house, and placed a handcuff on one of his wrists. When Runlett attempted to place a handcuff on the defendant's other wrist, the defendant stiffened up, preventing Runlett from completing the arrest. As Runlett attempted to complete the arrest of the defendant, the defendant's resistance evolved into more aggressive resistance to the extent that he placed Runlett in a physical hold from which Runlett extricated himself with the aid of pepper spray.
General Statutes § 53-167a provides: "A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer in the performance of such peace officer's duties." Therefore, the elements of this crime are: (1) that the defendant obstructed, resisted, hindered or endangered a peace officer; (2) that the conduct of the defendant occurred while the peace officer was "in the performance of such peace officer's duties"; and (3) that the defendant intended to obstruct, resist, hinder or endanger a peace officer while the officer was in the performance of such peace officer's duties.
The court so instructed the jury.
At the time of the defendant's arrest, General Statutes § 53a-23 provided: "A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal." However, the Supreme Court has held that this statute does not abrogate the common-law right to resist an unlawful entry to one's home. State v. Brocoglio, supra, 264 Conn. 781, 793-94; State v. Gallagher, supra, 191 Conn. 443, 445. The defendant's motion relies on Brocogilo and Gallagher.
In determining whether to grant a judgment of acquittal, the court views the evidence in the light most favorable to sustaining the verdict. State v. Green, 81 Conn.App. 152, 155, 838 A.2d 1030, cert. denied, 268 Conn. 909, 845 A.2d 413 (2004). Viewing the evidence in this manner, the motion for judgment of acquittal lacks merit. The defendant himself summoned the police to his home. This alone is dispositive of the defendant's motion. Moreover, he defendant's mother consented to their entry as the defendant stood nearby. Not until Officer Runlett placed handcuffs on one of the defendant's wrists, while the defendant was outside the house on the front lawn, did any semblance of resistence by the defendant begin.
In considering a request to charge, as opposed to a motion for judgment of acquittal, the court views the evidence in a light most favorable to be requesting party. State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986). The defendant did request a charge to the effect that the defendant was privileged to resist an illegal, warrantless arrest. Viewing the evidence in a light most favorable to the defendant, the court declined to give such a charge. However, because an arrest without probable cause could conceivably implicate the second element of the crime of interfering with an officer, that the officer was "in the performance of such peace officer's duties," the court charged the jury substantially as follows: "The phase in the performance of his official duties means that Runlett must have been acting within the scope of what he is employed to do. [A] police officer has the duty to enforce the laws and to preserve the peace. Whether he is acting in the performance of his duty . . . must be determined in the light of that purpose and duty. If he is acting under a good faith belief that he is carrying out that duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties . . . The phrase in the performance of his official duties means that the police officer is simply acting within the scope of what he is employed to do. The test is whether the police officer is acting within that compass or is engaging in a personal frolic of his own . . ."
"As you've heard, the defendant claims that David Runlett exceeded the scope of his official duties because he used excessive force in arresting the defendant. In determining whether David Runlett was acting within the scope of his duties you should first look to the reason why he was using force. General Statutes § 53a-22(b) lists the reasons for which a peace officer may use force It states: `a peace officer . . . is justified in using physical force upon another person when and to the extent that he reasonably believes such to be necessary to . . . effect an arrest of a person whom he reasonably believes to have committed an offense, unless he knows' that the arrest is unauthorized . . . Another statute authorizes a police officer to arrest a person without a warrant `when the person is taken or apprehended in the act or on the speedy information of others . . .' The arrest must be based on probable cause that criminal activity has occurred and that the person to be arrested committed it. Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred [and that the person to be arrested committed it] . . . The probable cause determination is, simply, an analysis of probabilities . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act . . . Probable cause is not readily, or even usefully, reduced to a neat set of legal rules . . . Reasonable minds may disagree as to whether a particular set of facts establishes probable cause.
"However, another statute states: `A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.'
"As I've said, the officer must be acting in the performance of his duties. The fact that a person may not use physical force to resist an arrest, legal or illegal, by an identifiable officer does not require that person to submit to egregiously unlawful police conduct during the course of the arrest. If you find that the State has proven that Officer Runlett was using force on the defendant or a purpose that is authorized under General Statutes § 53a-22(b), then to further determine if David Runlett was acting in the performance of his duties, you must determine whether the amount of force he used was reasonable. Even if a police officer is using force for a proper purpose, he may use no more force than is reasonably necessary to effect an arrest. In making an arrest, a police officer may use such force as he reasonably believes to be necessary, under all the circumstances surrounding its use, to accomplish that purpose, that is, to make the arrest. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and not with the 20/20 vision of hindsight. If the police officer did not reasonably believe that his use of physical force was necessary, then his use of force was not within the performance of his duties and a citizen may properly resist that use of force.
"Whether Officer Runlett reasonably believed that his use of force was necessary to accomplish one of the purposes of General Statutes § 53a-22(b) and, therefore was within the performance of his duties, is for you to determine, taking into account all of the circumstances of the case, including the police officer's need to make rapid decisions, to maintain his authority and control, and to preserve both his own and the general public's safety. If the police officer did not have such a reasonable belief, his use of physical force cannot be said to have been within the performance of his duties."
See State v. Davis, 261 Conn. 553, 569-70, 804 A.2d 781 (2002); State v. Casanova, 255 Conn. 581, 592-93, 767 A.2d 1189 (2001); State v. Porter, 76 Conn.App. 477, 490, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).
There was no evidence that the defendant undertook to resist the officers' entry into his home or its environs. Indeed, there is no evidence of an unlawful entry by either officer. For this reason, the defendant's motion for reconsideration of his motion for judgment of acquittal is denied.
In State v. Brocoglo, supra, 264 Conn. 778, the Supreme Court implicitly expanded the rule in State v. Gallagher, supra, 191 Conn. 433, beyond the physical structure of a home itself to the backyard of the home.
BY THE COURT
Bruce L. Levin
Judge of the Superior Court