Arthur v. State

ADKINS, J. Fireworks were not the only things erupting on one Fourth of July evening in 2007. An airborne newspaper sparked an altercation between the defendant, Andre Arthur, and Corpo ⁵¹⁶ ral Eric Stanley, resulting in criminal charges against Arthur for failure to obey a lawful order and resisting arrest. At trial, Arthur presented evidence that Corporal Stanley did not have probable cause to arrest him, and thus Arthur had a right to resist. Yet, the trial court refused to instruct the jury on the right to resist an unlawful arrest.

A jury convicted Arthur on both counts. On appeal, Arthur attacked the trial court’s refusal to issue his instruction, as well as the sufficiency of the evidence supporting his failure to obey a lawful order conviction. The Court of Special Appeals affirmed the convictions, holding that the evidence was sufficient and that, although Arthur had generated the requested jury instruction, it was adequately covered by other instructions given. Thus, the trial court did not err in refusing Arthur’s instruction.

Arthur then petitioned this Court, presenting the following issues for our review: 1. Is the evidence sufficient to sustain Mr. Arthur’s convictions for failure to obey a lawful order and resisting arrest where the record only shows that he used foul language after being told by a police officer to “lower his voice[,] ... settle down”? 2. Did the trial court err in failing to instruct the jury, upon request, that a person is privileged to resist an unlawful warrantless arrest? In response, the State filed its own petition, seeking answers to the following questions: 1.

Did Arthur fail to preserve his challenge to the sufficiency of the evidence underlying his convictions? 2. Did the trial court correctly conclude that an instruction on the right to resist an unlawful arrest was not generated by the evidence? We granted both petitions, and for the reasons stated below, we shall reverse the holding of our intermediate appellate court. ⁵¹⁷ FACTS AND LEGAL PROCEEDINGS A few minutes before midnight on Independence Day 2007, Corporal Eric Stanley of the Frederick Police Department was driving his police vehicle northbound on Market Street when he observed a group of three people, including Arthur, walking together on the sidewalk. According to Stanley, he noticed Arthur “reach[ ] down and pick[ ] up a newspaper that had been left on the sidewalk[.]” As Stanley continued past the group, he “heard the thump of an item hitting [his] patrol vehicle[,]” and when he looked back, he realized that Arthur no longer had the newspaper in his hand.

Stanley then stopped and exited his vehicle, saying to Arthur, “[H]ey, let me talk to you.” 1 Stanley later testified that, when he approached Arthur, the latter began yelling obscenities at him, specifically saying, “you get the fuck away from me, leave me the fuck alone[,]” and other words to that effect. Stanley responded by saying “hey, settle down. I need to talk to you[.]” Yet Arthur “continued with his verbal ... onslaught[,]” attracting the attention of people standing outside of a restaurant farther up the block. 2 Stanley told him “to lower his voice, to settle down, and he continued to refuse.” It was at this point that Stanley told Arthur that he was under arrest, placing his hand on Arthur’s shirt. Arthur reacted by “try[ing] to pull from [Stanley] in a yanking, jerking motion[,]” and Stanley “called for another police officer to back [him] up to affect the arrest.” Arthur continued to struggle as three officers attempted to arrest him, leading them to “take him to the ground ... to prevent his fleeing[.]” Once on the ground, Arthur continued “kicking and pulling[,]” causing Stanley to sprain his ankle.

Eventually, the officers were able to take Arthur into custody. ⁵¹⁸ At trial, Arthur and his companions offered a different version of the night’s events. Danielle Brigham, Arthur’s girlfriend, testified that, while walking -with Arthur down Market Street, she stopped to talk to a friend. When she turned around, “there was a cop that was approaching [Arthur] and he had asked him to put his hands behind his back and [Arthur] asked ... why am I getting arrested?” But the officer “just told him to put his hands behind his back.” When Arthur did so, the officer “put him on the ground and had put him eventually in the back of the car.” Danielle contradicted Stanley’s account, saying that there hadn’t been any struggle. Arthur’s brother, DaSean, also testified that he was walking ahead of Arthur and turned around to see “the officer approaching him and [Arthur] asked ... why am I getting locked up[?]” “[A]t that moment that’s when [the officer] grabbed him and just threw him to the ground for no reason[.]” When Arthur took the stand, he explained that on the night of his arrest, he, his girlfriend, and his brother were returning from the park where they had viewed the Fourth of July fireworks.

Arthur said that Stanley approached him, telling him to place his hands behind his back. Arthur then asked the officer if he was under arrest, and “[h]e said no.” So Arthur “continued to walk[,]” believing that he “didn’t really have to continue to talk to him” because he was not under arrest. Stanley then “took [Arthur] by the shirt [and] slammed [him] up against the wall[.]” Arthur maintained that as he was talking to Stanley, he wasn’t “using profanity. I’m not cursing. [I] just sa[id] that you don’t have to be so aggressive and [I] plac[ed] one of my hands behind my back.” He also claimed that he sustained some injuries from the encounter with the police officers, receiving a cut on his hand because one of the officers smashed the handcuffs onto his finger instead of his wrist.

Other injuries included: a knee injury. [One of the officers] placed his knee into my neck. I had to get a head scan at the hospital for a, um, I believe it was a pinched nerve in my neck. I had shoulder injuries. I had about four or five cuts on my body from ⁵¹⁹ them just, you know, hitting me.

One guy hit [me] with the baton like at least I would say four times, four or five times he hit me with the baton, and I was on my backside. While I was laying on my stomach. Arthur did admit, however, that, before Stanley approached him, he had picked up the newspaper, and was tossing it across the street to one of his buddies who lived on that side of the street. He explained that he was not throwing the paper at any vehicles, but was simply “playing catch.” He also admitted that he had been “drinking a little bit[.]” At the close of the State’s case, Arthur’s counsel unsuccessfully moved for a judgment of acquittal, arguing that he had a right to resist the arrest: Apparently the officer says that he was under arrest ... concurrently with him grabbing him and saying you’re under arrest.

Based on that, Your Honor, he was never told why he was under arrest, what he had done. I’m also having problems that it kind of conflicts with what was in the report. But just based on the testimony you’re under arrest, I mean I think he had a right to resist. Arthur then renewed his motion at the close of all evidence, arguing that the “State had failed to show that [Arthur] was a, failure to regard ... he failed to obey a lawful order and the fact that he wasn’t disregarding a lawful order there was no right to arrest[.]” The court denied the motion for the second time.

As the trial was drawing to a close, the court notified both parties that it would instruct the jury according to the Maryland Criminal Pattern Jury Instruction for resisting a warrantless arrest. 3 Defense counsel asked the court to also ⁵²⁰ instruct the jury that a person has the right to resist an unlawful arrest, 4 but the court was not receptive to this request: [DEFENSE COUNSEL]: 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 force to affect 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. ⁵²¹ [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 [not] illegal to resist an illegal arrest. If the jury concludes that of 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 acting, I, I mean, looking at it objectively the Defendant’s own conduct constituted a particular offense. The court rejected counsel’s request because the modification was not in the pattern instruction, 5 and because it believed the defendant had not generated the instruction.

The court explained that 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 [but] that’s as far as [it would] go.” Thus, the court’s instruction mirrored the pattern. The jury convicted Arthur of failing to obey a lawful order and resisting arrest and he was sentenced to a term of 60 days incarceration for failure to obey a lawful order and a concurrent term of one year incarceration for resisting arrest. Arthur timely appealed to the Court of Special Appeals, which affirmed his convictions. In a reported opinion, the Court agreed with Arthur that the issue was generated, but held that the trial court did not err in using the pattern jury instruction because the “reasonable grounds” language adequately conveyed that the arrest must be lawful.

Arthur v. State, 193 Md.App. 446, 459 , 997 A.2d 899, 907 (2010). The Court also held that there was sufficient evidence to support Arthur’s convictions in the form of Stanley’s testimony that he ⁵²² arrested Arthur “because of the volume of [Arthur’s] verbalizations and not their content[.]” Id. at 463 , 997 A.2d at 909 . DISCUSSION I. Sufficiency Of The Evidence Arthur first challenges the conclusion of the Court of Special Appeals that there was sufficient evidence to support his convictions. Arthur contends that his convictions were improper because: “(1) [] Stanley’s order for [] Arthur ‘to lower his voice, to settle down’ was an unlawful regulation of [ ] Arthur’s right to free expression; and (2) [ ] Arthur was privileged to resist his unlawful arrest, and the acts of resistance were reasonable in scope to the officer’s unlawful arrest.” The State contests this assertion, arguing that Stanley’s order was content-neutral, intended only to warn Arthur to lower his voice.

In any event, asserts the State, this Court need not reach the issue because Arthur’s challenge is not preserved for appellate review because, in his Motions for Judgment of Acquittal, Arthur did not challenge the lawfulness of Stanley’s order on First Amendment grounds. “It is well settled that appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal.” State v. Rich, 415 Md. 567, 574 , 3 A.3d 1210, 1214 (2010) (quoting Starr v. State, 405 Md. 293, 302 , 951 A.2d 87, 92 ). Here, Arthur moved for judgment of acquittal both at the close of evidence offered by the State and again at the close of all evidence, as permitted by Maryland Rule 4-324. Subsection (a) of that same governing rule requires the defendant to “state with particularity all reasons why the motion should be granted.” Md. Rule 4-324(a). This means that a defendant must “argue precisely the ways in which the evidence should be found wanting and the particular elements of the crime as to which the evidence is deficient.” Starr, 405 Md. at 303 , 951 A.2d at 92 -93 (quoting Fraidin v. State, 85 Md.App. 231, 244-45 , 583 A.2d 1065, 1072 (1991)).

To be sure, “an appellant/petitioner is entitled to present the appellate court with a more detailed version of the argument ⁵²³ advanced at trial[; however,] this Court has refused to require trial courts to imagine all reasonable offshoots of the argument actually presented to them before making a ruling on admissibility.” Id. at 304 , 951 A.2d at 93 . Accordingly, a defendant “is not entitled to appellate review of reasons stated for the first time on appeal.” Starr, 405 Md. at 302 , 951 A.2d at 92 . With regard to the necessary level of particularity, we find instructive our decision in Starr v. State, 405 Md. 293 , 951 A.2d 87 (2008), where we held that the defendant failed to preserve his argument for review. There, the defendant had been convicted of first degree assault and related offenses, including openly wearing and carrying a dangerous weapon with intent to injure, after he fired a “sawed-off shotgun” over the head of another person.

Starr, 405 Md. at 295 , 951 A.2d at 88 . At trial, the defendant moved for a judgment of acquittal on the grounds that “mere possession of a ‘sawed-off shotgun’ did not violate [the statute] and that the shotgun was not a dangerous weapon because [it was not listed in the statute as such.]” Id. at 301 , 951 A.2d at 91 . On appeal, however, the defendant argued that he had been charged under the wrong statute because the sawed-off shotgun was, in effect, a handgun, which was expressly excluded from the statutory list of deadly weapons. Id.

We held that, because the defendant’s “trial counsel never argued to the circuit court that the ‘sawed-off shotgun’ described by the State’s witnesses was actually a ‘handgun’ as that term is defined in [the Criminal Law Article], this argument [was] not ... preserved for our review.” Id. at 301-02 , 951 A.2d at 92 . Another illustrative case is Polk v. State, 378 Md. 1 , 835 A.2d 575 (2003), in which the defendant was arrested for disturbing the peace after she began yelling obscenities in a public hospital and then refused an officer’s order to lower her voice. 6 At the end of the State’s case-in-chief, the