Commonwealth v. Manolo M., a juvenile ( 2023 )

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22-P-787 Appeals Court
22-P-888
22-P-897
COMMONWEALTH vs. MANOLO M., a juvenile
(and three companion cases1).
Nos. 22-P-787, 22-P-888, & 22-P-897.
Plymouth. September 8, 2023. - December 15, 2023.
Present: Green, C.J., Desmond, & Hand, JJ.
Delinquent Child. Juvenile Court, Delinquent child. Assault
and Battery. Police Officer. Practice, Criminal, Required
finding, Instructions to jury. Self-Defense. Resisting
Arrest. Constitutional Law, Freedom of speech and press.
Probable Cause.
Complaints received and sworn to in the Plymouth County
Division of the Juvenile Court Department on October 4, 2019.
The cases were tried before Dana Gershengorn, J.
Eva G. Jellison for Frederick F.
Melissa Allen Celli for Angela A.
1 Commonwealth vs. Frederick F., a juvenile (22-P-787);
Commonwealth vs. Angela A., a juvenile (22-P-897); and
Commonwealth vs. Manolo M., a juvenile (22-P-888). We adopt the
same pseudonyms for the juveniles as used by the Supreme
Judicial Court in Commonwealth v. Manolo M., 486 Mass. 678(2021).
2
Michelle Menken for Manolo M.
Elizabeth A. Mello Marvel, Assistant District Attorney, for
the Commonwealth.
GREEN, C.J. After a trial in the Juvenile Court, a jury
adjudicated three juveniles, Manolo M., Frederick F., and Angela
A., delinquent on the charge of resisting arrest and also
adjudicated Manolo delinquent on the charge of assault and
battery on a police officer (ABPO).2 On appeal, the juveniles
argue that the evidence was insufficient to support each
adjudication. Manolo and Angela also argue that the jury
instructions were deficient in various respects. We conclude
that an error in the self-defense instruction on the offense of
ABPO created a substantial risk of a miscarriage of justice,
requiring that we vacate Manolo's adjudication with respect to
that offense. We affirm the juveniles' adjudications for
resisting arrest.
The incidents giving rise to the charges leading to the
present appeals arose out of a somewhat volatile gathering of
teenagers following an early dismissal of Brockton high school
students from school, as generally described in Commonwealth v.
2 All other charges against the juveniles were dismissed
prior to trial consistent with the decision in Manolo M., 486
Mass. at 694-695.
3
Manolo M., 486 Mass. 678, 679-681 (2021).3 We address the
juveniles' various claims of error in turn, incorporating
additional factual details as necessary in our discussion of
each claim.
1. Manolo. a. ABPO. i. Motion for required finding.
Manolo first contends that his adjudication on the ABPO charge
must be reversed because there was insufficient evidence that he
touched the police officer.
"Challenges to the sufficiency of the evidence are
evaluated under the Latimore standard, that is, whether, 'after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'"
Commonwealth v. Witkowski, 487 Mass. 675, 679 (2021), quoting
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Where, as
here, the juvenile moved for a required finding at the close of
the Commonwealth's case and renewed the motion at the close of
all evidence,
"[w]e consider the state of the evidence at the close of
the Commonwealth's case to determine whether the
defendant's motion should have been granted at that time.
We also consider the state of the evidence at the close of
3 Though the factual summary included in that opinion was
drawn solely from the police reports, and the juveniles
contested the characterization of the events in those reports,
see Manolo M., 486 Mass. at 679 n.4, the general contours of the
description in that opinion finds support in the evidence at the
subsequent trial.
4
all the evidence, to determine whether the Commonwealth's
position as to proof deteriorated after it closed its case"
(citation omitted).
Commonwealth v. Copeland, 481 Mass. 255, 260 (2019).
To prove an assault and battery, the Commonwealth must
prove "that the [juvenile] touched the victim without having any
right or excuse to do so and that the [juvenile]'s touching of
the victim was intentional." Commonwealth v. Mitchell, 67 Mass.
App. Ct. 556, 564 (2006). Viewed in the light most favorable to
the Commonwealth, the evidence was sufficient to establish the
following. Manolo tried to run past Brockton police Officer
Daniel Vaughn to check on his friend who was engaged in a
struggle with other officers. Vaughn pushed Manolo back.
Manolo began to rock back and forth in front of Vaughn with his
fists up and stated, "let's go mother f'er, let's go." Manolo
then swung his closed fist at Vaughn's head, and Vaughn
"blocked" that punch.4 From that testimony, a reasonable juror
4 The testimony concerning the blocked punch was elicited on
cross-examination. As this court previously acknowledged,
"[o]ur cases do not specify whether testimony on cross-
examination of the Commonwealth's witness is considered part of
the Commonwealth's case-in-chief for purposes of a directed
verdict, or is only to be included in the calculus of adequacy
in a reappraisal of all the evidence after the defendant has
rested." Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 103 n.10
(2015). We conclude that such testimony can be considered as
part of the Commonwealth's case-in-chief for purposes of a
required finding. See Copeland, 481 Mass. at 260 (required
finding motion requires consideration of "the state of the
evidence at the close of the Commonwealth's case" [citation
omitted]). Cf. Commonwealth v. Mauricio, 477 Mass. 588, 597
5
could have concluded that Manolo committed an assault and
battery by touching Vaughn while attempting to land a punch.
Cf. Webster's Third New International Dictionary 235 (2002)
("block" means "to obstruct or interfere with [an opponent, his
play, or his movement] by bodily contact").
ii. Self-defense instruction. Manolo further argues that
the judge erred in including the language pertaining to deadly
force in the self-defense instruction, and that the judge should
have provided instruction on defense of another. Because Manolo
did not object, we review for a substantial risk of a
miscarriage of justice. See Commonwealth v. Souza, 492 Mass.
615, 635 (2023).
"To decide whether an error creates a substantial risk of a
miscarriage of justice, we must determine 'if we have a serious
doubt whether the result of the trial might have been different
(2017) ("In determining the sufficiency of the evidence, we
consider 'the evidence in its entirety, including, not
excluding, that admitted [at] trial but found inadmissible on
appeal'" [citation omitted]). To the extent that Manolo asserts
that his trial counsel was ineffective for eliciting testimony
about the blocked punch on cross-examination, Manolo did not
raise this claim through a new trial motion, and this is not one
of the "exceptional" circumstances where such a claim can be
resolved on direct appeal. Commonwealth v. Zinser, 446 Mass.
807, 809 n.2 (2006). See Commonwealth v. Davis, 481 Mass. 210,
222 (2019) (motion for new trial preferred method of raising
ineffective assistance of counsel claim). In light of our
conclusion that Manolo's adjudication for ABPO must be vacated
on other grounds, we do not otherwise address his ineffective
assistance claim.
6
had the error not been made'" (citation omitted). Commonwealth
v. Desiderio, 491 Mass. 809, 810 (2023).
"In making this determination, we consider four factors,
where applicable: '[(1)] the strength of the
Commonwealth's case, [(2)] the nature of the error, [(3)]
the significance of the error in the context of the trial,
and [(4)] the possibility that the absence of an objection
was the result of a reasonable tactical decision'"
(citation omitted).
Id.On the offense of ABPO, the judge correctly determined that
Manolo was entitled to a self-defense instruction including the
use of nondeadly force. However, in delivering the supplemental
instruction on the reasonable apprehension requirement, the
judge included a portion of the model instructions pertaining to
circumstances where the use of deadly force is at issue. See
Instruction 9.260 of the Criminal Model Jury Instructions for
Use in the District Court (2009).5 Because use of deadly force
was not at issue in this case, the inclusion of the phrase "of
great bodily harm or death" in the instruction was error. See
5 Specifically, the judge instructed,
"A person cannot lawfully act in self defense unless he is
attacked or is immediately about to be attacked. The
Commonwealth may prove that the juvenile did not act in
self defense by proving beyond a reasonable doubt that
there was no overt act, either words, a gesture, or some
other action, that gave rise to a reasonable belief of
attack, or immediate danger of great bodily harm or death"
(emphasis added).
7
Commonwealth v. Noble, 429 Mass. 44, 46 (1999) (nondeadly force
includes "force of one's fists, hands, and arms").
We accordingly consider the significance of the error in
the context of the trial. Whether Manolo acted in self-defense,
including the degree of risk faced by Manolo, was a live issue
at trial. Defense counsel argued that, in light of the size
disparity between Vaughn and Manolo (Vaughn was eight inches
taller and 100 pounds heavier), the injuries that Manolo
suffered from the incident, and the "hard takedown" that twice
caused Manolo to fall to the ground, Manolo was entitled to
protect himself. The Commonwealth's evidence establishing that
Manolo did not act in self-defense was not overwhelming, and
required resolution by the fact finder. See Desiderio, 491
Mass. at 817 (appellate court's role is "not to sit as a second
jury" [citation omitted]). The effect of the erroneous
instruction materially lowered the Commonwealth's burden of
proof; by virtue of the erroneous instruction the Commonwealth
was able to prove that Manolo did not act in self-defense by
proving there was "no overt act . . . that gave rise to a
reasonable belief of attack, or immediate danger of great bodily
harm or death" (emphasis added). See Commonwealth. v. Baseler,
419 Mass. 500, 503-504 (1995) (instruction on self-defense
relating to deadly force on charge of assault and battery
impermissibly lowered Commonwealth's burden of proof). See also
8
Commonwealth v. Walker, 443 Mass. 213, 217 (2005) (standards for
use of deadly and nondeadly force are "distinct, self-contained
definitions of self-defense"); Commonwealth v. Pike, 428 Mass.
393, 395 (1998) ("The right to use nondeadly force arises at a
'somewhat lower level of danger' than the right to use deadly
force" [citation omitted]). Finally, there is no realistic
possibility that defense counsel's failure to object was a
reasonable tactical decision. See Desiderio, 491 Mass. at 819-
820 (no reasonable tactical decision to fail to object to
instructions relieving Commonwealth of burden to prove required
element beyond reasonable doubt).
We are mindful that "[s]elf-defense is a sensitive part of
the jury instructions in a criminal trial, and inappropriate
language in the instructions can readily lead to a result in
which an appellate court lacks confidence" (citation omitted).
Commonwealth v. Cataldo, 423 Mass. 318, 327 (1996). The
erroneous instruction in the present case created a substantial
risk of a miscarriage of justice and, as a result, Manolo's
adjudication for ABPO must be vacated.6
6 To the extent Manolo also claims error with respect to the
judge's failure to include a defense of another instruction, we
disagree based on the absence of evidence that Manolo attempted
to intervene on his friend's behalf. Manolo's own testimony was
that he did not intend to interfere in the struggle between his
friend and the officers when he attempted to run past Vaughn; he
merely wanted to "check on" his friend and "see if he was okay."
9
b. Resisting arrest. On the charge of resisting arrest,
Manolo argues that there was insufficient evidence that he
offered resistance at the time Vaughn was effectuating his
arrest.
"A person commits the crime of resisting 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."
G. L. c. 268, § 32B (a). "[T]he crime . . . is committed, if at
all, at the time of the 'effecting' of an arrest." Commonwealth
v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting
Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). "An
arrest is effected when there is (1) 'an actual or constructive
seizure or detention of the person, [2] performed with the
intent to effect an arrest and [3] so understood by the person
detained.'" Grant, supra, quoting Grandison, supra. "The
standard for determining whether a defendant understood that he
We likewise reject Manolo's argument that the judge's decision
not to instruct on the "reasonable juvenile standard" was
prejudicial error. That standard has been considered in the
context of juvenile sentencing, see Commonwealth v. Odgren, 483
Mass. 41, 48 (2019), and in the context of Miranda warnings, see
Commonwealth v. A Juvenile, 402 Mass. 275, 277 (1988), but not
in the context of the use of nondeadly force in self-defense.
In any event, in light of the absence of any evidence on this
issue at trial, we discern no error in the judge's decision to
omit the proposed instruction.
10
was being arrested is objective -- whether a reasonable person
in the defendant's circumstances would have so understood."
Grant, supra.
After the events described above, Vaughn kicked Manolo,
Manolo approached again, and both fell to the ground. Vaughn
was "trying to place [Manolo] under arrest." Vaughn explained,
"I was telling him he was under arrest, and at that point,
another officer arrived and assisted me in placing him in
handcuffs." That other officer, Brockton school police Officer
Spencer Benoit, came to assist after he observed "Vaughn having
an altercation with a student from the high school, and [Vaughn]
was trying to get him to comply with his commands, telling him
[to] place his hands behind his back." Benoit "assisted with
grabbing an arm and putting the hand behind [Manolo's] back so
Officer Vaughn could apply handcuffs." A reasonable juror could
conclude from this testimony that Manolo was actively resisting
Vaughn's efforts to effectuate his arrest after being advised by
Vaughn that he was under arrest.7 See Grandison, 433 Mass. at
143-145 (evidence of resisting arrest sufficient when as officer
tried to handcuff him, defendant "was shouting obscenities,
stiffened his arms and, for a second, was able to pull one of
7 This inference was bolstered by Manolo's own testimony
that while on the ground, "multiple officers [were] trying to
arrest [him]."
11
his arms free," never complied with request to put hands behind
back, and ultimately required two more officers to assist in
getting arms behind back). See also Commonwealth v. Maylott, 65
Mass. App. Ct. 466, 468-469 (2006); Commonwealth v. Katykhin, 59
Mass. App. Ct. 261, 262-264 (2003).
2. Frederick. Frederick argues that the judge erred in
denying his pretrial motion to dismiss the criminal complaint on
the charge of resisting arrest, and in denying his motions for a
required finding on that charge at the close of the
Commonwealth's case and at the conclusion of trial.8
Specifically, he argues that the officers lacked a good faith
basis to believe that Frederick committed a crime when they
attempted to arrest him.
To support an adjudication of delinquency on the offense of
resisting arrest, the Commonwealth must prove that "the officers
acted 'under color of [their] official capacity' in attempting
the arrest" (citation omitted). Commonwealth v. Urkiel, 63
Mass. App. Ct. 445, 453 (2005). "A police officer acts under
the color of his official authority when, in the regular course
of assigned duties, he is called upon to make, and does make, a
judgment in good faith based upon surrounding facts and
circumstances that an arrest should be made by him." G. L.
8 The same judge resolved the motion to dismiss and served
as the trial judge.
12
c. 268, § 32B (b). These requirements reflect "a compromise of
two views: (i) the person arrested has no right to resist the
arrest even if illegal, [and] (ii) [the person arrested] has a
right to resist (proportionately) an illegal arrest." Urkiel,
supra.
a. Motion to dismiss. At a minimum, the facts alleged in
the complaint supported a conclusion that Vaughn had a good
faith basis to believe that Frederick could be arrested for
disorderly conduct.9 A person engages in disorderly conduct
under G. L. c. 272, § 53 (b), if the person "'with purpose to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof,' engaged in 'fighting or threatening,
or in violent or tumultuous behavior' or created 'a hazardous or
physically offensive condition by any act which serves no
legitimate purpose of the actor.'" Commonwealth v. Cooper, 100
Mass. App. Ct. 345, 351 (2021), quoting Commonwealth v. Accime,
476 Mass. 469, 472-473 (2017). "'[T]umultuous behavior,' for
the purposes of § 53, includes the refusal to obey a police
9 Frederick was charged with disorderly conduct, disturbing
the peace, and interfering with a police officer. Those charges
were dismissed prior to trial as Frederick's "first episode of
minor misdemeanor level misconduct" under G. L. c. 119, § 52.
Manolo M., 486 Mass. at 694. The officers at the scene had no
basis to know this legal limitation for proceeding with those
charges, and the juveniles do not argue that the subsequent
dismissal of these claims on that basis raises any question of
the officers' good faith basis for the arrest.
13
order." Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38
(2009), cert. denied, 562 U.S. 891 (2010).
The police reports supporting the application stated that
there were approximately one hundred students on Florence Street
when police arrived. The street was "entirely blocked" due to
the crowd refusing to disperse despite police broadcasting
orders to do so over a microphone and using cruisers with
activated lights and sirens to attempt to clear the roadway. As
the police arrested Manolo and his friend, the crowd ran closer
and surrounded the police. After those arrests were
effectuated, a large crowd remained and refused orders to leave
the area. Frederick ignored several verbal warnings to the
leave, continued to entice the crowd to stay and become more
agitated, and walked slowly in the middle of the street yelling,
"Fuck you pigs I aint [sic] moving shit!"
Frederick argues that the officers had no good faith basis
to arrest him, because his words and actions were protected
within his rights, under the First Amendment to the United
States Constitution, to criticize the police, see O'Brien v.
Borowski, 461 Mass. 415, 428-429 (2012), and to observe police
officers engaged in their duties in a public place, see Glik v.
Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). We recognize that
"[t]he police do not . . . have unfettered discretion to arrest
someone for speech that annoys or offends." Commonwealth v.
14
Adams, 482 Mass. 514, 528 (2019). However, "[i]n deciding
whether to arrest, police officers often make split-second
judgments," and the decision whether conduct -- such as standing
in the street, repeatedly failing to comply with police orders
to disperse, and encouraging others to stay on a chaotic scene -
- is afforded First Amendment protection requires a finely
nuanced analysis of the particular facts. Lozman v. Riviera
Beach, 138 S. Ct. 1945, 1953 (2018). Though some of Frederick's
conduct may have been within the protection of the First
Amendment, "that protection did not entitle him to disregard
police commands reasonably calculated at ensuring public safety
amid potentially dangerous circumstances." Marcavage, 76 Mass.
App. Ct. at 40. Here, the alleged conduct was sufficient to
give the officers a good faith basis to believe probable cause
supported Frederick's arrest.
b. Motions for required finding. The evidence at trial
also was sufficient to deny the motions for a required finding
of not delinquent. Viewing the evidence in the light most
favorable to the Commonwealth, a rational jury could have found
the following. The scene confronting the officers upon their
arrival was loud and chaotic. Students were running around,
swearing, refusing to leave, and physically intervening with
officers. Frederick refused to leave the area despite being
asked multiple times to do so. Instead, he stood in the street
15
yelling, "f--- you" and "we're not leaving." When Officer
Vaughn attempted to arrest Frederick, he began to pull away,
would not put his arms behind his back, and continued to fight
as another officer joined to assist Vaughn. He was handcuffed
after a third officer, following a verbal warning, put his taser
directly on Frederick and stunned him. Viewed in the light most
favorable to the Commonwealth, the evidence that Frederick
refused to leave the area, encouraged others to stay, and
continued to block the street was sufficient to support a
conclusion that Vaughn made a judgment in good faith that
probable cause supported Frederick's arrest.
To the extent Frederick argues that evidence about the
chaotic and volatile nature of the scene -- and in particular
the number of people present -- deteriorated after the close of
the Commonwealth's case, we disagree. Frederick contends that
the video recording submitted in evidence during the juveniles'
case-in-chief demonstrates that "the volatility of the situation
was overstated by a number of officers" because it depicts only
a few people in the area of the arrests. The video recording is
not conclusive of the conditions at the scene, because it is
limited in both time and perspective. The video recording
depicts roughly one minute of the thirty to forty-five minutes
that the police were in the area attempting to disperse the
16
crowd.10 The video recording also largely depicts the incidents
that occurred on the front lawn of a single house. It does not
show how many people were gathered in the nearby area or on the
street, and it does not depict Frederick's arrest. The jury
were free to credit the witnesses' testimony about the number of
people in the area at the time of his arrest, and to credit the
testimony of the arresting officers describing the totality of
the scene and their encounters with the crowd. Cf. Commonwealth
v. Walker, 401 Mass. 338, 343–344 (1987) (jury free to
disbelieve defendant's account where nothing compelling in
defendant's evidence caused prosecution's case to deteriorate).
3. Angela. a. Motions for required finding. Angela
argues that there was insufficient evidence that the officer who
arrested her was acting in good faith when he decided to arrest
her or that her conduct amounted to resisting arrest. We
address each element in turn.
i. Color of official authority. Angela first argues that
the police had no basis to arrest her as she was permitted to
record the police's interactions with her friends and inquire
why police were harassing people on the street. However, at
trial, evidence was presented that Angela was "in all the
officers' faces with her phone." She was swearing and telling
10The recording has some background noise, but none of the
conversations between the juveniles and the police can be heard.
17
the officers that they were violating people's rights. She had
her cell phone approximately five inches from Brockton police
Officer Raymond Parrett's face while he was initially
interacting with Frederick. Parrett told Angela to get the cell
phone out of his face and slapped the phone out of her hand
three times. Later, she was "[i]nches" away from Brockton
police Lieutenant Frank Vardaro as he was struggling to put
someone in custody with assistance from another officer. Angela
also was "in [Vardaro's] face with a camera, screaming at [him],
swearing at [him], telling [him he's] violating rights. And she
refused to disengage and walk away." Viewed in the light most
favorable to the Commonwealth, a rational jury could conclude
that Angela failed to comply with police orders to stand back
from the officers while they were performing their duties,
including when Vardaro was engaged in a struggle. This conduct
was sufficient to give officers a good faith basis to believe
probable cause supported Angela's arrest. See Marcavage, 76
Mass. App. Ct. at 38 (tumultuous behavior under disorderly
conduct statute includes refusal to comply with police order).
See also Adams, 482 Mass. at 527 (offense of interference with
police officer requires Commonwealth to prove "the defendant
intended his or her conduct, and intended 'the harmful
18
consequences of the conduct -- that is, the interference with,
obstruction, or hindrance'" [citation omitted]).11
We are unpersuaded by Angela's arguments to the contrary.
To be sure, the ability to film police officers carrying out
their official duties in public is protected by the First
Amendment, and Angela was free to do so. However, such conduct
may be limited by reasonable time, place, and manner
restrictions, such as requiring Angela to film from a safe
distance away from a chaotic and volatile scene, and in a manner
that caused no interference with the officers' performance of
their duties. See Glik, 655 F.3d at 84 (reasonable time, place,
manner restrictions permissible). See also Adams, 482 Mass. at
528 ("It is constitutionally permissible to prohibit individuals
from physically obstructing a police officer"); Marcavage, 76
Mass. App. Ct. at 40 (First Amendment does not permit citizens
to disregard police commands meant to ensure public safety in
potentially dangerous situations).
11To the extent Angela argues that the Commonwealth could
not prove she "intended the harmful consequences of the
conduct," that does not negate the jury's conclusion that
Parrett had a good faith basis for the arrest in the moment the
decision to arrest was made (quotation and citation omitted).
Adams, 482 Mass. at 527. See Commonwealth v. Lender, 66 Mass.
App. Ct. 303, 305 (2006) ("Even were a court to determine later
that the . . . subsequent arrest lacked . . . probable cause,
the absence of [probable cause] does not provide a defense to
the charge of resisting arrest").
19
For largely the same reasons explained in our discussion of
Frederick's claims, we conclude that the video recording
submitted in evidence does not negate the testimony that Angela
was close to the officers' faces and does not cause the
Commonwealth's case to deteriorate. Notably, the video
recording does not depict the entire encounter; it begins during
the last occasion that Parrett knocked Angela's cell phone out
of her hand. While the sixty-four second video recording shows
Angela in the general vicinity of the officers, but not mere
inches away from their faces, both Manolo and his friend appear
to be on the ground with officers as the recording ends; thus,
the video recording does not even capture the completion of
their arrests. The video recording also does not depict what
occurred thereafter, including Angela's arrest and Frederick's
arrest.12 Although the footage does not show Angela close to the
officers during the partial depiction of the arrests of Manolo
and his friend, the jury were free to credit the officers'
testimony that at other times (not depicted in the recording)
she was within inches of their faces.
12Testimony was presented that Angela and Frederick
recorded Manolo's friend's arrest. Both Angela and Frederick
were approximately three feet away from where officers were
struggling to place that male in handcuffs when an officer "told
them that they needed to back away, . . . to give the officers
space to do what they needed to do." Angela and Fredrick
complied with that order.
20
ii. Physical force or violence. Angela next argues that
her conduct did not amount to resisting arrest; instead, she
asserts that "[s]he merely failed to offer her arm to be
handcuffed as quickly as the police officer would have liked."
Contrary to her assertion, the evidence at trial established "an
active, physical refusal to submit to the authority of the
arresting officers, and opposition to their efforts to effect
the arrest." Maylott, 65 Mass. App. Ct. at 469. As Parrett
tried to put Angela's hands behind her back, "she was pulling
away." Parrett explained, "I tried to grab one arm. She yanked
away with the camera still going. I tried to put her hands
behind her back, she wouldn't." Parrett then grabbed Angela by
the backpack and her hair, and put her on the ground. Angela
pulled her arms and hands under her body while on the ground
such that she could not be handcuffed. After she did not comply
with "several orders to pull her hands out" and after a verbal
warning, Parrett administered oleoresin capsicum spray (OC spray
or pepper spray).13 In the light most favorable to the
Commonwealth, the active conduct of pulling away while the
officer was attempting to handcuff Angela coupled with Angela
13To the extent Angela argues that she already was in
custody and under arrest at the time she put her hands under her
body, we disagree. See Katykhin, 59 Mass. App. Ct. at 262-263
(arrest complete after defendant fully detained in cruiser, not
when defendant was handcuffed).
21
keeping her hands under her body after being put on the ground
fall within the type of "physical force or violence" required to
support an adjudication for resisting arrest under G. L. c. 268,
§ 32B (a) (1). See Maylott, supra at 467-469 (defendant
resisted arrest by stiffening arm, refusing to put hands behind
back, and not turning around to be handcuffed); Katykhin, 59
Mass. App. Ct. at 262 (defendant resisted arrest by refusing to
get into police cruiser, standing rigid, and "pull[ing] away,
starting a 'tug of war'"). Accordingly, the evidence was
sufficient to support Angela's adjudication for resisting
arrest.
b. Jury instructions. Angela also claims error in the
jury instructions on the offense of resisting arrest.
Specifically, she contends that when the judge explained that a
person is not permitted to resist even an unlawful arrest, the
judge omitted qualifying language that the arrest must be
carried out in good faith. Because Angela did not object to the
instruction, we review to determine if there was any error and,
if there was, whether it created a substantial risk of a
miscarriage of justice. See Souza, 492 Mass. at 635.
We discern no error. The judge first gave an instruction
on the offense of ABPO and then gave an instruction on the
offense of resisting arrest. A reading of the transcript
demonstrates that the language Angela now challenges -- "A
22
person who is arrested by someone who he knows is a police
officer, is not allowed to resist that arrest with force,
whether the arrest is lawful or not" -- was clearly part of the
instruction on ABPO, and Angela was not charged with that
offense. The transition from the instruction on ABPO to
resisting arrest was apparent -- the judge prefaced the
transition with a statement that each juvenile was charged with
resisting arrest and then explained what the Commonwealth must
prove beyond a reasonable doubt with respect to that offense.14
As part of the instruction on resisting arrest, the judge
correctly explained, "[T]he Commonwealth must prove that the
police officer was acting, quote, under color of official
authority. A police officer acts under color of official
authority when in the regular course of assigned duties he or
she makes a judgement in good faith based on the surrounding
facts and circumstances that he or she should make an arrest."
At the conclusion of the instruction on resisting arrest, the
judge explained, "It is not a defense to this charge that a
police officer was attempting to make an arrest which was
unlawful if the officer was acting under color of his official
authority and used only reasonable force in attempting to make
14 The judge's instruction on the offense of resisting
arrest tracks the language in the Instruction 7.460 of the
Criminal Model Jury Instructions for Use in the District Court
(2009).
23
that arrest" (emphasis added). Viewing the instructions in
their entirety, the judge adequately explained the burden of
proof on the offense of resisting arrest. See Commonwealth v.
DelValle, 443 Mass. 782, 796 (2005) ("We review a judge's charge
to the jury for error by reading the charge as a whole, and not
by scrutinizing each sentence out of context").
Conclusion. On the counts of the complaints charging
Manolo, Frederick, and Angela with resisting arrest, the
juveniles' adjudications of delinquency are affirmed. On the
count of the complaint charging Manolo with assault and battery
on a police officer, the adjudication of delinquency is vacated
and the verdict set aside.
So ordered.