Arthur v. State

• Decision Date: 02 July 2010
• Docket Number: 2008.,No. 400,400
• Citation: 193 Md.App. 446,997 A.2d 899
• Parties: Andre Devon ARTHURv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

193 Md.App. 446

997 A.2d 899

Andre Devon ARTHURv.STATE of Maryland.

No. 400, Sept. Term, 2008.

Court of Special Appeals of Maryland.

July 2, 2010.

Marc A. DeSimone, Jr. (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for appellant.

Edward J. Kelly (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., MATRICCIANI, and PAUL E. ALPERT (Retired, Specially Assigned), JJ.

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 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 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 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

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 that he had an injury underneath his arm, a knee...