Com. v. Lawson

• Citation: 708 N.E.2d 148,46 Mass.App.Ct. 627
• Decision Date: 09 April 1999
• Docket Number: No. 97-P-1226,97-P-1226
• Parties: COMMONWEALTH v. James LAWSON. Worcester
• Court: Appeals Court of Massachusetts

Page 148

708 N.E.2d 148

46 Mass.App.Ct. 627

COMMONWEALTH v. James LAWSON.

No. 97-P-1226.

Appeals Court of Massachusetts,

Worcester.

Argued Sept. 10, 1998.

Decided April 9, 1999.

Todd M. Gornstein, Canton, for the defendant.

Thomas W. Dee, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, DREBEN, & JACOBS, JJ.

JACOBS, J.

The defendant appeals from convictions by a District Court jury on complaints charging malicious destruction of property, G.L. c. 266, § 127; disorderly conduct, G.L. c. 272, § 53; and resisting arrest, G.L. c. 268, § 32B. ¹ We affirm the convictions on the charges of destruction of property and disorderly conduct and reverse the resisting arrest conviction.

At trial, the prosecution presented evidence that the defendant had torn down a speed limit sign which was attached to a pole located between the bar in which he earlier had been drinking and an antique store operated by him and his wife. One of the emergency medical technicians who responded to a "man down, possibly intoxicated" call found the defendant "staggering about" outside of the store and smelling of alcohol. The defendant reacted hostilely to the technicians, obscenely telling them to leave and threatening to kill them. When Keith Bourne, a Fitchburg police officer in full uniform, arrived approximately thirty seconds later, he found the defendant on his hands and knees. When the defendant made threats to kill him, Officer Bourne called for back-up and informed the defendant that he was going to be under arrest. Back-up arrived shortly thereafter in the form of three cruisers and four additional officers. The defendant reacted by entering the store and trying to lock the door. Concerned for the safety of a woman and child they observed within the store, two of the officers pushed the door open and one of them directed pepper spray at the defendant. Once inside the store, the officers told the defendant he was under arrest and attempted to handcuff him. The defendant resisted, fighting and flailing his arms. He was subdued only after he and two officers fell to the floor and a third officer had joined in the fray.

1. Resisting arrest. The statute in issue, G.L. c. 268, § 32B, was inserted in the General Laws by St.1995, c. 276, and provides in pertinent part:

"(a) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another."

The defendant argues the judge erred in denying his request for a specific intent jury instruction with respect to this crime and essentially that such an instruction would have permitted the jury to consider the effect of his voluntary intoxication and the pepper spray on his ability to form the requisite intent. After instructing the jury that the crime of malicious destruction of property requires proof of specific intent and that in determining whether the Commonwealth "has proved that the defendant had [the] necessary intent," they "may take into account any evidence of intoxication," the judge, with respect to the charges of disorderly conduct and resisting arrest, expressly stated that "those two offenses ... are not specific intent crimes but are known in the law as general intent crimes." He further instructed that "[w]ith respect to general intent crimes, intoxication, if you so find, is not a legal defense for a criminal charge. The law takes the view that even if alcohol had to some extent blinded a person's intellect and his passions, nevertheless it is not an excuse for a crime if the person brings it upon himself. A person who is intoxicated has the same responsibility to obey the law as a person who is sober."

In the context of the wording of the resisting arrest statute, any focus upon the concepts of specific and general intent will not likely assist either judicial analysis or a jury and may be a source of confusion for both. See Commonwealth v. Richards, 363 Mass. 299, 307 n. 3, 293 N.E.2d 854 (1973); Commonwealth v. Gunter, 427 Mass. 259, 268-270, 692 N.E.2d 515 (1998); Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 524 n. 6, 649 N.E.2d 784 (1995), S. C., 421 Mass. 610, 659 N.E.2d 284 (1996); Commonwealth v. Sibinich, 33 Mass.App.Ct. 246, 249 nn. 1-3, 598 N.E.2d 673 (1992); Model Penal Code § 2.02, comments at 229-236 (1985). We concentrate instead upon the implications of the use of the word "knowingly" in the statute. We view the placement of "knowingly" as introducing a scienter element not only with respect to the prevention of an arrest, but more broadly, with respect to the prevention of an arrest by "a police officer, acting under color of his official authority." In any event, it is clear that proof of knowledge is required. ² " 'Knowingly' when used in a criminal statute 'commonly imports a perception of the facts requisite to make up the crime.' " Commonwealth v. Altenhaus, 317 Mass. 270, 273, 57 N.E.2d 921 (1944), quoting from Commonwealth v. Horsfall, 213 Mass. 232, 237, 100 N.E. 362 (1913). See Commonwealth v. Moore, 36 Mass.App.Ct. 455, 461, 632 N.E.2d 1234 (1994) (the crime of assault and battery on a police officer, G.L. c. 265, § 13D, requires proof that the defendant knew that the victim was a police officer engaged in the performance of his duties).

When proof of knowledge is an element of the crime charged, the defendant's intoxication ³ "bears on the defendant's ability to possess the requisite knowledge of the circumstances in which he acted," Commonwealth v. Andrade, 422 Mass. 236, 245, 661 N.E.2d 1308 (1996), quoting from Commonwealth v. Sama, 411 Mass. 293, 298, 582 N.E.2d 498 (1991). See State v. Galvin, 147 Vt. 215, 217, 514 A.2d 705 (19...