People v. Armstrong , 1986 Colo. LEXIS 573 ( 1986 )

DUBOFSKY, Justice,

dissenting:

Because I agree with the district court’s dismissal of the two counts of second degree assault under section 18 — 3—203(l)(f), 8 C.R.S. (1978 & 1985 Supp.), I respectfully dissent. In most cases a district court should allow the People to present evidence at trial concerning charges that appear to stem from the same conduct; however, in this case, the testimony offered at the preliminary hearing clearly indicates that the appropriate charge was resisting arrest under section 18-8-103(l)(a), 8 C.R.S. (1978).

At the preliminary hearing, Officer King testified that the conduct involved in this case took place over a four to five minute period during which three police officers attempted to subdue the defendant. Although King had warned the defendant not to interfere with the officers’ attempt to stop the fight, the defendant placed his hand on Officer White and tried to step between the officer and the two persons who had been fighting. After Officer Hauswirth and Officer Brannan arrived to provide backup assistance, King told the defendant that he was under arrest for obstructing police officers and ordered the defendant to turn around and put his hands behind his back. King and Hauswirth grabbed the defendant by opposite arms and attempted to handcuff him, but the defendant began to thrash and flail his arms, and the two police officers and the defendant fell to the ground. The defendant was lying on the ground on his stomach with his arms under his chest while Bran-nan, King, and Hauswirth were attempting to pull the defendant’s arms out from under him.

The police officers and the defendant then stood up, and the defendant kneed Brannan in the chest before the defendant fell to the ground a second time. Brannan was then able to pull the defendant’s left arm out from under him and handcuff it to the defendant’s belt. Hauswirth testified that at this point the defendant hit him in the face with his right fist. The three police officers were then able to handcuff the defendant’s right hand.

Because preliminary hearings under section 18-1-404, 8 C.R.S. (1978), are only available for felony charges, the district court’s initial ruling at the preliminary hearing that probable cause existed to believe that the defendant had committed assault did not encompass the misdemeanor charge of resisting arrest. Subsequently the defendant moved to dismiss the second degree assault charges on the basis that section 18 — 3—203(l)(f) could not constitutionally be applied to him because the same alleged conduct was proscribed under section 18 — 8—103(l)(a), the resisting arrest statute. The district court ruled that application of section 18 — 3—203(l)(f) to the facts of this case denied the defendant equal protection.

Courts usually analyze cases in which a defendant is charged with multiple counts based on the same act under section 18-1-408(3), 8 C.R.S. (1985 Supp.), which allows the court, upon application by a defendant charged with two or more offenses supported by identical evidence, to “require the state, at the conclusion of all the evidence, to elect the count” upon which the defendant shall be tried. Section 18-1-408(3) suggests that the defendant’s motion to dismiss in this case was premature. However, the People’s response that the resisting arrest charge was based on evidence that the defendant pulled away from Officer King and Officer Hauswirth and that the second degree assault charge was based on evidence that the defendant kneed Officer Brannan and punched Officer Hauswirth suggests that the People intended that section 18-1-408(3) should not apply to this case. Without deciding whether section 18-1-408(3) should apply to this case, I believe that the defendant’s concern about more than one conviction based upon identical evidence is encompassed within a section 18-1-408(3) inquiry.

The district court, in ruling on the motion to dismiss, observed that the “crux of the case lies in a reading of the elements of resisting arrest,” particularly the “effecting an arrest” element.¹ (Emphasis in original.) The court determined that

to “effect an arrest” of a person the peace officer must enforce, accomplish, or complete the arrest. It is not in this Court’s mind, synonomous [sic] with the “arrest” which invokes a person’s right to be advised of his rights under the Miranda Decision. Rather in the context of this case an arrest is effected when the Defendant is subdued, brought under control, handcuffed, restrained, or otherwise objectively seen to be under the dominion and control of the arresting officer. Only then has an arrest been “effected.”

The result of the district court’s ruling is a finding that resisting arrest is the appropriate charge. In effect, the district court dismissed the assault charges, based on preliminary hearing testimony, for lack of probable cause.

Although I disagree with the district court determination that the assault charges could be dismissed before trial because of constitutional concerns, I believe the charges were properly dismissed and therefore dissent in this case. The four police officers involved testified at the preliminary hearing, and their testimony concerning the short four to five minute span of the sequence was uncontradicted and is unlikely to change at trial. The testimony indicates that the defendant properly was charged with resisting arrest, not with second degree assault on police officers.

1 . Section 18-8-103, 8 C.R.S. (1978), provides in part as follows:

(1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(a) Using or threatening to use physical force or violence against the peace officer or another....

(Emphasis added.)