Monk v. State

ALPERT, Judge. Gregory Monk, convicted by a Baltimore City jury on two drug-related counts, plus an additional count of resisting arrest, appeals, asking us to address the following two questions: I. DID THE LOWER COURT ERR IN ITS INSTRUCTIONS AND REINSTRUCTIONS TO THE JURY REGARDING THE LAW OF RESISTING ARREST?

II

DID THE LOWER COURT ERR IN INSTRUCTING THE JURY REGARDING EVIDENCE THAT DID NOT EXIST? We answer the first question in the affirmative and, therefore, reverse. Appellant was observed by a Baltimore City police officer at 12:30 a.m. standing on the street with “his right hand opened ... and ... neon objects ... piled up in the palm of his hand.” When the officer approached the appellant, appellant dropped the items to the ground and began to run ⁷⁴⁰ eastward. When the officer ran past the area where he observed appellant drop something, he saw “ziplocks” containing white objects on the ground.

It was later determined that those objects contained cocaine. A motion to suppress that evidence was denied, the motions judge implicitly finding probable cause for the warrantless arrest. The case proceeded to trial by jury before the same judge. I. On the resisting arrest count, the trial court, inter alia and over defense objection, instructed the jury as follows: The legality of the arrest is not at issue in this case.

The only question for you, the jury, is whether or not the defendant was arrested and, if so, whether or not the defendant resisted that arrest. Defense counsel stated the grounds for objection in the following exchange: MR. ANGELOS [defense counsel]: I take exception to the fact that you [the trial judge] indicated that the arrest was lawful. I would ask that an instruction be given that an officer may lawfully arrest without a warrant if he finds probable cause, and under the testimony of this case, the evidence is inconsistent.

The police officer testified first that he detained him, and went back and found to establish probable cause; however, the next officer testified and came on and said that he was already under arrest, and then he went back and took the drugs. That the other party had established the probable cause. Because of the inconsistent testimony, I ask that the instruction be given that a police officer may lawfully arrest without a warrant as long as he has probable cause, and continue with that the substance of all definitions of probable cause is a reasonable ground to believe that the person about to be arrested is guilty. That reasonable grounds of probable cause for arrest exists when the facts and circum ⁷⁴¹ stances within the knowledge of the officer, which is reasonably trustworthy information that an offense is being committed.

And taking it one step further, I would ask that you instruct the jury that, if you determine that the defendant was not lawfully arrested, the defendant has a right to resist that arrest. That’s his defense, and that if you find that the defendant was not lawfully arrested, the defendant has a right to resist that arrest. One who is illegally arrested may use reasonable force to effectuate his escape. * * * * THE COURT: * * * * [Defense counsel previously] made [a motion] with respect to the suppression of all evidence, and as to the fact of probable cause for the arrest in the first place. And this matter was heard and I have found, and I have denied your motion and found that there was a proper arrest and that there was probable cause.

Actually, I said a great deal more on the subject. Now, the question arises as to whether or not this means that you can have an instruction that there was not probable cause and that there was legality of arrest in the event that the defendant resists the arrest. To me this would be totally not only inconsistent — first of all, I have already made a legal finding and the courts have held that that is binding. Secondly, the facts of this case indicate that there is absolutely no evidence whatsoever ... to show that the arrest was anything other than legal.

There’s not even a scintilla of evidence that the police officers did anything other than based upon the facts before them. Therefore, it doesn’t rise to the issue of an issue. Based on both of those reasons, I deny your exception[ ]. During their deliberations, the jury requested Judge Ward to define “resisting arrest” again.

Over defense objection, the court sent in the same exact instruction, “word-for-word without change.” Appellant now contends ⁷⁴² that the lower court improperly instructed (and, similarly, improperly “reinstructed”) the jury. We agree. The Court of Appeals has defined resisting arrest as “[a] refusal to submit to lawful arrest * * *.” State v. Huebner, 305 Md. 601, 608 , 505 A.2d 1331 (1986). Thus, an essential element of resisting arrest is that the arrest be lawful.

In Maryland, “one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary.” Diehl v. State, 294 Md. 466, 479 , 451 A.2d 115 (1982), cert. denied, 460 U.S. 1098 , 103 S.Ct. 1798 , 76 L.Ed.2d 363 (1983) (citing Sugarman v. State, 173 Md. 52, 57 , 195 A. 324 (1937)). If, however, the arrest is lawful, one is not justified in resisting it. Sharpe v. State, 231 Md. 401, 403 , 190 A.2d 628 , cert. denied, 375 U.S. 946 , 84 S.Ct. 350 , 11 L.Ed.2d 275 (1963) (emphasis added). See also Kellum v. State, 223 Md. 80, 85 , 162 A.2d 473 (1960).

Because it is essential that the State prove the arrest was lawful, the trial judge erred in refusing, over defense counsel’s objection, to instruct the jury on the issue. See M.R. 4-325(c). In fact, the judge specifically instructed the jury not to consider the legality of the arrest. Rather, he said, “the legality of the arrest is not at issue in this case.

The only question for you, the jury, is whether or not the defendant was arrested and, if so, whether or not the defendant resisted that arrest.” (Emphasis added.) In addition, when the jury requested the judge to reinstruct them on the offense, he reiterated his original instruction verbatim. It is obvious that the trial judge made these decisions (visa-vis the instruction and re-instruction) based upon the mistaken belief that his finding of probable cause for the warrantless arrest was binding on the trier of the fact — in this case, the jury. It was not. Justice Brennan, writing for the United States Supreme Court, held that “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due ⁷⁴³ Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1073 , 25 L.Ed.2d 368 (1970) (emphasis added).

Similarly, the Court of Appeals in Hoey v. State, 311 Md. 473 , 536 A.2d 622 (1988), opined that “the State must bear the burden of proof on every element of a criminal offence.” (Emphasis added.) By not instructing the jury on all elements of the crime, the judge usurped the jr.ry’s function to decide whether the State had proved beyond a reasonable doubt all elements of the crime. It should be noted, however, that a citizen’s right to resist an arrest applies only in limited circumstances. The trend in Maryland is to diminish the opportunity for