On May 23, 2011 the Appeals Court upheld the conviction for resisting arrest in COMMONWEALTH vs. KEVIN T. DOBBINS 79 Mass. App. Ct. 555 (2011). The court found that no substantial risk of a miscarriage of justice arose from the judge’s failure to give an instruction to the jury to consider only the defendant’s prearrest conduct.
The court in deciding stated that “On May 23, 2007, a jury convicted the defendant, Kevin T. Dobbins, of resisting arrest, G. L. c. 268, § 32B.
Discussion. The crime of resisting arrest occurs at the time the arrest is “effected,” i.e., when there “is (1) ‘an actual or constructive seizure or detention of the person, (2) performed with the intention to effect an arrest and  so understood by the person detained.’ ” Commonwealth v. Grandison, 433 Mass. 135 , 145 (2001) (Grandison), quoting from Commonwealth v. Cook, 419 Mass. 192 , 198 (1994). In light of this, “a resisting arrest conviction can, in no way, rest on postarrest conduct.” Grandison, supra. On appeal, the defendant argues that, the judge having failed to explicitly instruct otherwise, “the jury may, at least in part, have rested their verdict on an event incapable of supporting a guilty verdict, i.e., the events at the station,” thereby resulting in a substantial risk of a miscarriage of justice. Grandison, supra at 147. As the defendant neither requested a limiting instruction nor objected to its absence, we review for a substantial risk of a miscarriage of justice.
Here, the defendant’s arrest was effected at his house, in a process that continued until police gained control of the defendant and placed him in the cruiser. See Grandison, supra at 146 (arrest was effectuated at the scene); Commonwealth v. Katykhin, 59 Mass. App. Ct. 261 , 262-263 (2003) (defendant’s arrest effectuated when “he was fully detained in the cruiser”); Commonwealth v. Ocasio, 71 Mass. App. Ct. 304 , 306, 311 (2008) (process of “effecting” arrest continued until defendant was placed in cruiser); Commonwealth v. Knight, 75 Mass. App. Ct. 735 , 739 (2009) (Knight) (effecting an arrest “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” [emphasis supplied]).
While the judge should have instructed the jury to consider only prearrest conduct in evaluating the resisting arrest charge, the facts here, when viewed in the context of a substantial risk analysis, are adequate to support our ultimate conclusion that the jury relied on “solely the events at the scene in reaching their verdict.” Grandison, supra at 147. Unlike in Grandison, where the prosecutor emphasized the defendant’s postarrest conduct in her closing statement, here the prosecutor confined her arguments to prearrest conduct. Compare Grandison, supra at 146 (postarrest conduct “figured prominently in the prosecutor’s closing,” including references to a video of the defendant’s postarrest conduct during booking). The prosecutor here, in contrast, focused both her opening and closing statements regarding the resisting arrest charge on what happened “at that house that night,” i.e., the defendant’s prearrest conduct, and made no mention of the postarrest conduct in the police cruiser or station.
Similarly, though the judge did not explicitly instruct the jury to not consider the defendant’s postarrest conduct, her instructions were of an order of magnitude better than those deemed deficient in Grandison, supra at 146-147, where the judge simply instructed the jury to consider “the evidence as a whole.” Here, the judge instructed the jury that “a person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer . . . from effectuating an arrest of him . . . .” The evidence was plain that the arrest had been effectuated by the time the defendant was secured in the cruiser. From these instructions, we discern no risk that “the judge implicitly authorized the jury to consider the events at the station in weighing the resisting arrest charge.” Grandison, supra at 147. On the facts at hand, we likewise discern no substantial risk of a miscarriage of justice in the judge’s failure to give a limiting instruction, sua sponte. Judgment affirmed.”
Attorney Ronald A. Sellon