COMMONWEALTH v. CHALEKI

No. 16-P-231.

COMMONWEALTH, vs. WILLIAM S. CHALEKI.

Appeals Court of Massachusetts.


Attorney(s) appearing for the Case

Jane A. Sullivan , A.D.A., Nathaniel Beaudoin , A.D.A., for Commonwealth, Plaintiff/Appellee.

Dana Goldblatt, Esquire , for William Chaleki, Defendant/Appellant.

By the Court (Trainor, Henry & Sacks, JJ.)


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 Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

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.1 The defendant argues that his motion to dismiss was improperly denied and that the charges against him violated art. 12 of the Massachusetts Declaration of Rights. The defendant further argues that the judge's instructions to the jury were improper and that the Commonwealth failed to provide sufficient evidence that the defendant knew that he was under arrest. We affirm.

Background.

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 A.M. Those males appeared to be "arguing, pushing, shoving, with each other, and blocking the roadway." The defendant was one of the males. The officers instructed the group to clear the sidewalk and go home.

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,2 asked the defendant, "Are you taping this?" and the defendant replied affirmatively. Carabello then pulled down his pants, as the defendant was recording with a cellular telephone (cell phone), exposing his buttocks to the public. One of the officers, Sergeant Donald LaRange, began to arrest Carabello. The officers, however, did not attempt to stop the defendant from his video recording.

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.

Discussion.

1. 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 Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995), because he was only charged with a single count of resisting arrest. However, unlike Barbosa, the defendant here was charged by a criminal complaint. See id. at 548; Commonwealth v. Bynoe, 49 Mass.App.Ct. 687, 692 (2000) ("To the extent Barbosa might be read as supporting the defendant's error per se claim, we think it, as well as Stirone [v. United States, 361 U.S. 212 (1960)] and [United States v.] Floresca, [38 F.3d 706 (4th Cir. 1994),] are distinguishable from the present claim. All three cases involved felony prosecutions on indictments and were, therefore, subject to the prohibition embodied in the Fifth Amendment to the Federal Constitution and art. 12 of the Massachusetts Declaration of Rights, that a defendant cannot be tried on felony charges not made by a grand jury and charged in an indictment"). Thus, "[t]he present case involves the violation of a right provided by statute, G. L. c. 263, § 4, and does not implicate any Federal or State constitutional right."3 Bynoe, supra at 692-693. Our case law and rules, however, provide the procedure and the basis upon which to challenge the validity of the issuance of a complaint.4

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,5 the defendant "began to struggle in attempt[] to free from [the officer's] hold and pull away from [him]," and the defendant "tucked his hands underneath him and refused to put his hands out." Based on that recitation of facts, which clearly presented two alternate ways of committing the crime, the clerk-magistrate found probable cause that the defendant resisted arrest. The clerk-magistrate clearly specified her findings by checking off several boxes on the application of the criminal complaint, which stated that "probable cause [was] found for [the] above offenses no(s): 1. [disorderly conduct] . . . and 3. [resisting arrest] based on facts set fourth [sic] in attached statement(s)" (emphasis added).6, 7

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 Bynoe, 49 Mass. App. Ct. at 692-693. The defendant was found guilty beyond a reasonable doubt of resisting his own arrest,8 and found not guilty of resisting the arrest of another.9

2. Remaining issues.

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," Commonwealth v. Rollins, 470 Mass. 66, 78 (2004), quoting from Chambers v. Commonwealth, 421 Mass. 49, 51-52 (1995), it is clear from the prosecutor's closing argument that the Commonwealth relied on only one theory to prove that the defendant engaged in disorderly conduct.10 Therefore, there was no error.

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."11 Commonwealth v. Biasiucci, 60 Mass.App.Ct. 734, 738 (2004). "In fact, subsequent events indicate that this evidence was unlikely to have affected [the clerk-magistrate's] decision." Commonwealth v. Ali, 43 Mass.App.Ct. 549, 557 (1997). At trial, the jury heard the evidence at issue and still convicted the defendant of disorderly conduct and resisting his own arrest. See ibid.; Biasiucci, supra. See also Commonwealth v. McGuire, 19 Mass.App.Ct. 1013, 1014 (1985). Therefore, there was no error.

Judgments affirmed.

FootNotes


12. The panelists are listed in order of seniority.
1. A charge of interfering with a police officer was dismissed, prior to trial, after the defendant's first motion to dismiss was allowed as to that charge.
2. Carabello's name is spelled differently throughout the record before us, including the application for the criminal complaint, the trial transcript, and both parties' briefs. However, for consistency purposes, we use this spelling.
3. G. L. c. 263, § 4, states in relevant part: "No person shall be held to answer in any court for an alleged crime, except upon an indictment by a grand jury or upon a complaint before a district court."
4. "After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate (or judge), . . . for a violation of the integrity of the proceeding, . . . or for any other challenge to the validity of the complaint." Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). Here, the defendant brought a second motion to dismiss alleging that "[t]he evidence presented in the Application for Complaint is insufficient to establish probable cause that [the defendant] committed the alleged . . . offenses." However, the defendant seems to present a different argument on appeal, than in his motion to dismiss, by alleging that it is unclear whether the clerk-magistrate found probable cause of resisting arrest based on both the allegations that the defendant resisted the arrest of another and the allegations that he resisted his own arrest. See Commonwealth v. Hawkins, 21 Mass.App.Ct. 766, 767 (1986) ("Certainly the general rule is that an appellate court will not consider an issue raised for the first time on appeal").
5. We reject the defendant's argument that, because the officer could not be heard on the recording telling the defendant he was under arrest, the evidence that the defendant knew he was being arrested at the time he resisted was no more plausible than the evidence that he did not know. The jury were entitled to infer such knowledge from the additional evidence that the defendant knew he was being forcibly restrained by the officer and that in response the defendant (as heard on the recording) angrily complained, "What'd I do? I didn't do anything."
6. The clerk-magistrate also made a hand-written notation on the bottom of the statement of facts form, labeled "additional facts found by clerk-magistrate," that states "p c found." We reasonably assume, that in this context, the clerk-magistrate's notation of "p c" stands for probable cause.
7. Further, "[t]he Commonwealth [was] free to charge the [defendant's quick motioning toward LaRange with his arm extended as LaRange arrested Carabello and the defendant's struggle with the second officer during his own arrest] under a single count on the theory that any of those [actions] may be sufficient to support the conviction." Commonwealth v. Rollins, 470 Mass. 66, 78 (2014). "Thus, there is no duplicity problem here." Ibid., citing United States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995).
8. See Commonwealth v. Gallant, 453 Mass. 535, 541 (2009) ("Probable cause [to arrest] does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction").
9. Here, the judge gave a specific unanimity instruction and the jury was given special verdict slips. See Commonwealth v. Grandison, 433 Mass. 135, 146 (2001). Once trial had concluded and the jury completed its deliberation, the foreperson clearly marked the box on the special verdict slip indicating that the jury had found the defendant guilty of resisting arrest "[a]s to the arrest of the defendant," and left the box unchecked corresponding to "the arrest of another person."
10. During closing argument, the prosecutor limited her recitation of the trial evidence that supported a conviction for disorderly conduct to the police officers' observations of the defendant as part of the group of males who were "yelling and swearing and preventing pedestrians from walking" while on a public sidewalk. The judge then properly instructed the jury on the elements necessary to prove the crime of disorderly conduct and the jury returned a guilty verdict.
11. Here, that omission of the defendant recording Carabello's arrest could have contributed to a determination of probable cause on the theory of resisting arrest of another and would have been an appropriate argument in a motion to dismiss had the defendant raised it. Also, the fact of the defendant's recording activity was fully vetted at trial, and he was ultimately found not guilty by the jury on that theory of resisting arrest.

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