Arthur v. State

MATRICCIANI, J. Andre Devon Arthur, appellant, was convicted by a jury in the Circuit Court for Frederick County of failure to obey a lawful order and resisting arrest. The court sentenced him to a term of sixty days incarceration for failure to obey a lawful order, and to a consecutive one year term of incarceration for resisting arrest. Appellant presents two questions on appeal: I. Did the court err in failing to instruct the jury, upon request, that a person is privileged to resist an unlawful arrest and that if they found that Mr. Arthur was unlawfully arrested they should acquit him of the crime of resisting arrest?

II

Is the evidence sufficient to sustain Mr. Arthur’s convictions for failure to obey a lawful order and resisting arrest? For the following reasons, we shall affirm. FACTS Frederick Police Corporal Eric Stanley testified that on the night of July 4, 2007, he was working as a Patrol Officer in Frederick when he came upon Andre Arthur, whom he identified at trial as appellant. He recounted that 10 or 15 minutes before midnight, he was driving his patrol vehicle very slowly northbound on Market Street approaching Third Street.

He observed a group of three people in the 300 block of Market ⁴⁴⁹ Street, very close to the intersection, walking northbound. There was no one else in the vicinity. He noticed that appellant reached down and picked up a newspaper left on the sidewalk next to a small tree. Corporal Stanley continued driving northbound and as he passed the threesome, he noticed that appellant had the paper in his hand.

As soon as he drove past appellant, he heard “the thump of an item hitting my patrol vehicle.” When Corporal Stanley heard the thump he looked in his side view mirror and noticed that appellant was no longer holding the newspaper. Believing that appellant had thrown the newspaper at his vehicle, he exited his police vehicle and said, “Hey, let me talk to you.” Appellant responded by yelling obscenities at the officer and “specifically said [‘]you get the fuck away from me, leave me the fuck alone,[’] ah, these types of things.” Corporal Stanley told appellant to settle down and that he needed to talk to him, and asked appellant what was going on. Appellant continued his “verbal onslaught.” At that point, they had neared the Old Town Tavern entrance. There were several people standing outside the tavern, “just patrons in and out,” looking toward them.

Corporal Stanley explained that while it was “not uncommon for people to look at the police,” “it’s also not uncommon for them to go about their, their own business as soon as they, you know, they’re not the subject of what it is that we’re, we’re trying to do — ” The patrons of Old Town Tavern, however, kept watching him and appellant. As appellant continued his obscenities, “people began to look my way and it was at that time I told him to lower his voice, to settle down, and he continued to refuse. He was trying to leave from me and I told him that he was under arrest.” As he told appellant that he was under arrest, Corporal Stanley placed his hands on appellant’s shirt. Appellant “continued to try to pull from me in, in a yanking, jerking motion.

Standing there and trying to, to hold onto him and I called for another police officer to back me up to affect [sic] the arrest. He continued to try to pull away from me.” Officer Wharton arrived in response to Corporal Stanley’s call, and the two officers tried to handcuff appellant. They ⁴⁵⁰ tried to take him “to the ground.” On the ground, appellant continued to kick and pull. Officer Cirko arrived and assisted with the arrest.

Corporal Stanley suffered a sprained ankle during the struggle with appellant. Corporal Stanley allowed the other officers to handcuff appellant, and they took appellant into custody. Corporal Stanley went to the hospital because of his ankle injury, so Officer Cirko completed the paperwork on the arrest. Corporal Stanley testified that he was not angry that someone threw a newspaper at his cruiser, but that he found it dangerous.

On redirect, the officer reiterated what happened when he approached appellant: “He became disorderly, yelling, you know, drawing the attention of the people in front of the bar, screaming obscenities.” As noted, Frederick Police Officers Cirko and Wharton responded to Corporal Stanley’s call for assistance. Officer Wharton testified that when he arrived, he saw Corporal Stanley struggling with appellant. It looked to him as though Corporal Stanley was trying to get appellant’s arm behind his back, and Corporal Stanley was being pushed up against the wall. There was “a crowd that was getting closer and closer.” Officer Wharton related that “[o]ne of the guys from the crowd was, ah, was yelling at both, both of ‘em.

I, I think he was trying to break it up, but I wasn’t sure, but the first thing I did was try to get him to step back so I, so he didn’t jump in or anything.” Officer Cirko testified that when he arrived, Corporal Stanley and Officer Wharton “were actively on the ground with Mr. Arthur in a scuffle.” Officer Cirko noticed that Officer Wharton had one of appellant’s hands handcuffed and that Corporal Stanley was holding appellant down. Officer Cirko grabbed appellant’s other hand and he and Officer Wharton were able to get appellant handcuffed. Officer Cirko said that appellant was taken to the hospital complaining of injuries. Danielle Nicole Brigham, appellant’s girlfriend, testified for the defense.

She reported that she was with appellant at ⁴⁵¹ approximately midnight on July 4, 2007. She testified to a different version of what happened: We were walking coming from Baker Park and I had stopped to talk to my friend, who I’d seen on the street, on Market because there was a bunch of people on Market street. I had stopped to say hi. As I was going forward, um, I turned around and there was a cop that was approaching Andre and he had asked him to put his hands behind his back and I, Andre had asked, you know, why, why am I getting arrested?

Why am I getting arrested? And I had also asked too and he just told him to put his hands behind his back. And then he had asked him to put his hands behind his back. He did so.

He, I don’t want to say forcefully, but had put him on the ground and had put him eventually in the back of the car. On cross-examination, Brigham reported that she had “just seen a cop car stop and I had seen that, you know, the cop was approaching him.” She affirmed that appellant was taken to the hospital that night. She assumed that it was for injuries he sustained during the arrest because he did not have any injuries before that. Appellant’s counsel also called Dasean Arthur, appellant’s brother, to the stand.

He testified that they were coming from the fireworks display at Baker’s Park and were walking to a convenience store. He reported that he was about “two car lengths” from appellant and Brigham. As he was going into the store, he turned around to see if appellant wanted anything from the store and saw the police officer approach. The officer was putting the handcuffs on appellant, and appellant was asking why he was getting arrested.

At that point, Corporal Stanley “grabbed him and just threw him to the ground for no reason like.” Appellant also testified as to his version of events: Well, around, I would say around 10:00 in the evening, fireworks just displayed, me and my girlfriend and my ⁴⁵² brother, we were walking from the, from Baker Park. We were actually walking up to Market Street. While we’re walking up Market Street I’m being approached by a police officer and while I’m approached by him he’s telling me, you know, place your hands behind your back. I automatically asked him, this is before, you know, he tried to arrest me, I automatically asked him was I, am I under arrest.

He said no. So I continued to walk. I walked ahead. I was yelling to my brother telling him, you know, the officer, he’s you know, he’s harassing me right now.

That’s how I took it. Like he was actually trying to get, not harassing me, I not gonna say harassing me, but you know, he— —was asking me questions. Appellant further testified that he picked up the newspaper and threw it across the street, but not at or on the officer’s car, and he did not hit any vehicle with it. When the officer saw appellant throw the paper across the street, he “jumped out his car,” and appellant got defensive.

Appellant averred that the officer never said he wanted to detain him and just told him to place his hands behind his back, and the officer tried to arrest him but did not tell him why. Appellant asked whether he was under arrest, and the officer said, “no,” so appellant continued to walk. Then, the officer grabbed him by the shirt and “slammed” him up against the wall. Appellant testified that he told the officer that he did not need to be so aggressive and put one of his hands behind his back, at which point the officer brought him to the ground by “sweeping” one of his legs: I fell down onto my shoulder.

After I fall down onto my shoulder another officer comes and he’s trying to handcuff my other hand. He takes my other hand, places it behind my back and he, he smashes my finger. I got, I got a cut. Actually I got on my hand also from the handcuff because he jerked the handcuff and smashed it onto my finger instead of on my wrist.

Appellant denied using profanity or cursing, but said he did curse when he was on the ground. Appellant further testified ⁴⁵³ that he had an injury underneath his arm, a knee injury from one of the officers, a pinched nerve in his neck from one of the officers placing his knee into appellant’s neck, shoulder injuries and four or five cuts. He claimed that one of the officers hit him with a baton four or five times. He denied resisting arrest and denied that the officer ever told him why he was under arrest, or why he was being detained.

On cross-examination, appellant repeated that he threw the newspaper across the street right in front of the police car. He maintained that he was “actually throwing it to one of my buddies ‘cause it was thrown over to me and we was just like playing catch.” He continued, saying that he was throwing it to a friend who lived “directly across the street” and was “standing right in front of his building” and that the newspaper belonged to his friend. Appellant explained that he had been drinking “a little bit.” Appellant also said that Corporal Stanley’s vehicle was stopped at the light and he did not know it was a police car. He said that as soon as the light turned green, Corporal Stanley pulled up and approached him.

He conceded that he had an idea why the officer might want to talk to him, but he thought that because the officer said he was not under arrest, he did not have to talk to him. Appellant’s counsel moved for a judgment of acquittal on the ground that the State failed to show that appellant failed to obey a lawful order, and since he was not disregarding a lawful order there was no right to arrest him. Additional facts will be set forth, as needed, in our resolution of the questions presented. DISCUSSION I. — Instruction On Right To Resist Arrest When the trial court discussed the proposed jury instructions, appellant’s counsel objected to the use of the pattern instruction. 1 The following occurred: ⁴⁵⁴ [DEFENSE COUNSEL]: (Inaudible — one word) Your Honor that I, (inaudible — one word) I had a (inaudible — one word).

If you determine the Defendant was not lawfully arrested and no arrest warrant was used then the Defendant had the right to resist arrest and that’s pursuant to case law. Resisting unlawful arrest is not a crime in Maryland. If an arrest is illegal the arrestee may use any reasonable means to, even for to affect [sic] his escape. And that’s, that’s Maryland case law.

THE COURT: The problem that you get into in this case is there’s, I don’t really want to have a sub-litigation issue about whether his arrest, because there, there could be four or five different things that he could have been arrested for according to the police officers. According to him, nothing. I’m gonna give the Pattern and no embellishment to— —it in this particular case. [DEFENSE COUNSEL]: Your Honor, I’m, I’m not asking for embellishment. I would object to just a Pattern.

I’m just stating that under Maryland law it is illegal [sic] to resist an illegal arrest. If the jury concludes that any of the four theories that he was legally arrested then he has no defense. But if the jury concludes that there wasn’t no — a, a legal arrest, under Maryland law he has the right to resist and we have generated that instruction. I would just simply ask that that instruction be added.

THE COURT: How do you believe that you, you have generated that instruction? From the Defendant’s initial, own testimony, best case he was littering. Second, he was ⁴⁵⁵ acting, I, I mean, looking at it objectively the Defendant’s own conduct constituted a particular offense. The trial court refused to give appellant’s requested instruction, stating two grounds: first, the court was not sure the defense was generated; second, the requested instruction was not in the pattern instructions.

The trial court said it would instruct the jury that “they do have to find that there were reasonable grounds to believe that the Defendant had committed a crime for him to be guilty of that offense.” The court noted counsel’s objection for the record. The Parties’ Contentions Appellant contends that the trial court erred in “failing to instruct the jury as to the longstanding legal principle that, in Maryland, a person is privileged to offer reasonable resistance to an unlawful warrantless arrest.” See In re Albert S., 106 Md.App. 376, 396-97 , 664 A.2d 476 (1995). He asserts that “the jury was permitted to convict only so long as it found that Corporal Stanley had — in the layperson’s view — ‘reasonable grounds’ to arrest, and was left with the mistaken impression that if Mr. Arthur did not passively acquiesce in that arrest he was guilty of resisting arrest.” (Internal footnote omitted). 2 The State counters that the pattern jury instruction sufficiently covered the area. In addition, the State asserts that the “reasonable grounds” language “properly conveys the concept of probable cause, which must be present to effect a lawful arrest.” The State further contends that Corporal Stanley had probable cause to arrest appellant for “newspaper theft ... as well as other crimes, such as obstruction, second degree assault, and reckless endangerment.” ⁴⁵⁶ Need For An Instruction Maryland Rule 4-325(c) provides that “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law.” When requested to do so by a party, the trial court is required to give an instruction that correctly states the applicable law if it has not been fairly covered in the instructions actually given.

State v. Martin, 329 Md. 351, 356 , 619 A.2d 992 , cert. denied, 510 U.S. 855 , 114 S.Ct. 161 , 126 L.Ed.2d 122 (1993). The instruction need not be given, however, unless the requesting party has generated the issue, i.e., produced “some evidence” sufficient to give rise to a jury issue on the defense. In Dykes v. State, 319 Md. 206 , 571 A.2d 1251 (1990), a case involving a self-defense claim, the Court of Appeals explained: Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says — “some,” as that word is understood in common, everyday usage.

It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or “preponderance.” The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the [] claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden. Then the baton is passed to the State.

It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self-defense. Id. at 216-17 , 571 A.2d 1251 (emphasis in original). “In evaluating whether competent evidence exists to generate the requested instruction, we view the evidence in the light most favorable to the accused.” Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117 (2003). As the Court of Appeals explained in Dishman v. State, 352 Md. 279 , 721 A.2d 699 (1998): The task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of ⁴⁵⁷ evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.... [A] defendant charged with murder who seeks instructions on the issue of mitigation or self-defense bears the “burden of initially producing ‘some evidence’ ... sufficient to give rise to a jury issue with respect to these defenses.” Id. at 292-93 , 721 A.2d 699 (citing State v. Evans, 278 Md. 197, 208 , 362 A.2d 629 (1976)). We disagree with the State’s assertion that there was no evidence of an unlawful arrest and therefore no reason to give the disputed instruction.

If the jury believed appellant and his witnesses, they might conclude that Corporal Stanley had no reason to arrest appellant. Nonetheless, we see no error. The instruction the trial court gave followed almost exactly, with insignificant changes, Maryland Criminal Pattern Jury Instructions 4:27.1, as follows: The second charge the Defendant is charged with is resisting a warrantless arrest. The Defendant is charged with the crime of resisting arrest.

In order to convict the Defendant of [ ] resisting arrest, the State must prove each of the following elements: That a law enforcement officer attempted to arrest the Defendant; that the Defendant knew that a law enforcement officer was attempting to arrest him; that the officer had reasonable grounds to believe that the Defendant had committed a crime and that the Defendant refused to submit to the arrest and resisted the arrest by force. MPJI-CR 4:27.1 (emphasis added). It is clear from that instruction that the State was required to prove that Corporal Stanley had reasonable grounds to believe appellant had committed a crime. If the jury believed that the officer did not have reasonable grounds to arrest appellant, then it was required to find him not guilty of resisting arrest.

We agree with the State that “the ‘reasonable grounds’ language contained in the pattern instruction properly conveys ⁴⁵⁸ the concept of probable cause.” The United States Supreme Court has stated that “the ‘substance of all the definitions of probable cause is a reasonable ground for belief of guilt.’ ” Maryland v. Pringle, 540 U.S. 366, 371 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 175 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)). The Maryland Court of Appeals has described probable cause as “a non-technical conception of a reasonable ground for belief of guilt.” See, e.g., Haley v. State, 398 Md. 106, 132-33 , 919 A.2d 1200 (2007); State v. Wallace, 372 Md. 137, 148 , 812 A.2d 291 (2002); Wilkes v. State, 364 Md. 554, 584 , 774 A.2d 420 (2001). This Court and the Court of Appeals have noted the credentials and the expertise of the pattern instructions committee and recognized the value of following the pattern instructions. In Wills v. State, 329 Md. 370, 383 , 620 A.2d 295 (1993), referring to the Maryland Pattern Jury Instruction on reasonable doubt, the Court of Appeals stated: The fourteen members of the Committee which fashioned the Maryland Pattern Jury Instructions — Criminal 1991 (MPJI — CR) consisted of judges at the trial and appellate level, prosecutors and former prosecutors, defense attorneys, law professors and other distinguished members of the Maryland bar.

In Green v. State, 127 Md.App. 758, 771 , 736 A.2d 450 (1999), this Court commented: [W]e say for the benefit of trial judges generally that the wise course of action is to give instructions in the form, where applicable, of our Maryland Pattern Jury Instructions. Those instructions have been put together by a group of distinguished judges and lawyers who almost amount to a “Who’s Who” of the Maryland Bench and Bar. Many of these instructions have been passed upon by our appellate courts. Indeed, appellant recognizes that “the Maryland Pattern Jury Instructions are presumed to be valid and in accordance with Maryland law.” Although we have recognized that there are situations in which the pattern instruction is inadequate, ⁴⁵⁹ such deviations are generally owing to unusual fact patterns rather than error in the instruction.

In Rajnic v. State, 106 Md.App. 286 , 664 A.2d 432 (1995), this Court concluded that the trial court’s use of the Criminal Pattern Jury Instruction on self-defense was not sufficient. We noted,