MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See
The defendant, William S. Chaleki, appeals from his convictions of disorderly conduct, in violation of G. L. c. 272, § 53, and resisting arrest, in violation of G. L. c. 268, § 32B.
On September 30, 2012, officers of the Worcester police department were attempting to disperse a group of males standing on the sidewalk outside of a bar in Kelley Square around 2:20
While some members of the group began to disperse per the officers' order, there were a few males, one being the defendant, who were still "yelling and shouting." The defendant "had his cell phone out" and began recording the activity in the area. Another male, Corey Carabello,
As the arrest of Careballo commenced, the defendant was video recording from approximately "10 . . . [to] 20 feet away." However, LaRange then noticed "the defendant approaching quickly into [his] area of the arrest." As the defendant moved forward, he "stuck his arm into the area where [LaRange] was trying to effect the arrest" and was "within inches" of LaRange. In response, LaRange instructed the defendant, to "back off," but the defendant did not.
At that point, a second officer "ordered [the defendant] back, . . . pulled him away, and told him [that] he was under arrest." When the officer attempted to handcuff him, the defendant "pulled his hands away from [the officer], trying to release himself from [his] grip." The officer "ordered [the defendant] to put his hands behind his back, [but] he refused, and [as the officer] was trying to get [the defendant's] hands behind him, . . . [they both] fell forward." While on the sidewalk, the defendant continued to resist the officer, resulting in the officer using a "forward strike" on the defendant's right shoulder in order to place him in handcuffs.
Resisting arrest conviction.
The defendant argues, based on several grounds, that his conviction of resisting arrest must be set aside. We disagree.
The defendant was charged with a single count of resisting arrest, in violation of G. L. c. 268, § 32B. At trial, the Commonwealth presented evidence that the defendant quickly motioned toward LaRange with his arm extended as LaRange was arresting Carabello, and that the defendant struggled with a second officer during his own arrest on the theory that the defendant either resisted the arrest of another (based on the former alleged conduct) or resisted his own arrest (based on the latter alleged conduct). The jury found the defendant guilty beyond a reasonable doubt of resisting his own arrest, but not of resisting the arrest of another.
The defendant argues that his conviction requires reversal under
In this vein, the defendant argues that the complaint is silent as to which ground, the defendant's resistance of Carabello's arrest or the resistance of his own arrest, the clerk magistrate found probable cause to support the charge of resisting arrest. "The appropriate judicial officer [clerk-magistrate] shall not authorize a complaint unless the information presented by the complainant establishes probable cause to believe that the person against whom the complaint is sought committed an offense." Mass.R.Crim.P. 3(g)(2), as appearing in 442 Mass. 1503 (2004).
Here, a statement of facts was provided to the clerk-magistrate to support the second officer's application for a criminal complaint, alleging two alternate acts by the defendant that could support a charge of resisting arrest. In the statement of facts, the officer alleged that the defendant "charge[d] towards LaRange from the rear and extended his arms in [LaRange's] direction" while LaRange was arresting Carabello. The statement of facts further alleged that when the defendant was grabbed by the second officer and told that he was under arrest,
Moreover, even though the defendant makes this argument for the first time on appeal and the argument could have been made in his motions to dismiss, there was no substantial risk of a miscarriage of justice in this case. See
We have considered the defendant's remaining arguments in detail and determined that they have no merit. For example, despite the defendant's argument that his conviction of disorderly conduct must be set aside because "it is impossible to tell on which ground the jury relied,"
Also, contrary to the defendant's contentions, the alleged intentional omission by the application officer of the fact that the defendant was video recording Carabello's arrest with a cell phone did not "gravely undermine evidence supporting probable cause."