Daniel
Ajak was charged with three counts of domestic assault and one count of
resisting arrest under section 575.150 of the Revised Statutes of Missouri.[1] A jury acquitted him of two of the three
domestic assault charges, and the prosecutor dismissed the remaining domestic
assault charge when the jury could not reach a verdict.[2] The jury did, however, convict Mr. Ajak of
resisting arrest.[3] On appeal, the Supreme Court of Missouri, en
banc, Judge Laura Denvir Stith writing for the majority, reversed Mr. Ajak’s
conviction, holding that any resistance by Mr. Ajak occurred after his arrest
had been effected, and therefore did not constitute resisting arrest under
section 575.150.[4]
I. Facts
and Holding
On
February 15, 2015, Daniel Ajak and his girlfriend, Shanna McMackin, were inside
the home they shared, along with Ms. McMackin’s two adult children, Sean and
Courtney.[5] A physical altercation ensued between Mr.
Ajak and Courtney when Mr. Ajak told Courtney that her boyfriend could not come
to the house.[6] Witnesses testified that Courtney was the
aggressor, that she yelled at and hit Mr. Ajak, and that she also pulled on his
dreadlocks.[7] Sean, Ms. McMackin’s other adult child,
eventually tackled Mr. Ajak to the ground.[8] After being tackled, Mr. Ajak grabbed a
knife, and Ms. McMackin then called the police.[9]
Police
arrived and, having been advised a knife was involved, found Mr. Ajak inside
the home.[10]
Police ordered him to put his hands up
and stop moving.[11]
Mr. Ajak complied, and he was
immediately placed in handcuffs.[12] Mr. Ajak yelled at the officers, protesting
that he was the victim.[13] An officer walked the handcuffed Mr. Ajak to
the kitchen and sat him in a chair.[14]
A
total of six officers responded to the scene.[15] After speaking with all of the witnesses,
police told Mr. Ajak – who was still sitting in a chair in the kitchen – that
he was under arrest and that he would be transported to jail.[16] Still handcuffed, Mr. Ajak was removed from
the residence with an officer holding each of his arms and another following
behind.[17] As the officers escorted Mr. Ajak to a patrol
vehicle outside, Mr. Ajak “kind of was jerking back and forth trying to break [the
officers'] grip.”[18] An officer testified that Mr. Ajak “f[ought]
back a little” and tried to pull away from the officers.[19] Mr. Ajak did not break free from the officers
and was taken to jail.[20]
Mr.
Ajak was convicted of resisting arrest, but the Supreme Court of Missouri,
sitting en banc, reversed his conviction.[21] Emphasizing the necessity of a fact-specific
inquiry in each case, the court held that Mr. Ajak’s arrest – the point at
which officers took “control of his movements” – was effected before any
resistance on his part, and therefore a reasonable jury could not conclude he
was guilty of resisting arrest because he did not act with the purpose of
preventing the arrest as required under the statute.[22]
II. Legal
Background
Missouri’s resisting arrest statute requires proof
of three elements: “(1) knowledge that [a] law enforcement officer is making an
arrest; (2) purpose on the part of the
defendant to prevent the officer from effecting the arrest; and (3)
resisting the arrest by threatening the use of violence or physical force or by
fleeing from such officer.”[23] As one can intuitively recognize,
understanding the parameters of the crime of resisting arrest requires a clear
understanding of the definition of “arrest” under the statute. Without such definition, one cannot, for
example, ascertain when a defendant is acting with a purpose to prevent his or
her arrest.
The resisting arrest statute, section 575.150, in the
2015 version of Missouri’s Criminal Code – the code that forms the basis for
Mr. Ajak’s conviction – does not itself define “arrest.”[24] Nor does section 575.150 explicitly
incorporate by reference a definition of arrest from another statute.[25]
However,
“arrest” has been statutorily defined outside
the Missouri Criminal Code in an identical manner in the Revised Statutes of Missouri
for more than a century.[26] Section 544.180 of RSMo and its predecessors dating
back to 1879 have defined arrest as “an actual restraint of the person of the
defendant, or by his submission to the custody of [an] officer, under authority
of a warrant or otherwise.”[27] Missouri caselaw reveals that section
544.180’s definition of arrest has governed in relevant cases for more than
half of a century.[28]
III. Instant
Decision
The Supreme Court
of Missouri answered three questions in its decision of State v. Ajak: 1) what is the statutory definition of the crime of
resisting arrest under 575.150; 2) does this definition reveal that “arrest” is
an ongoing process under section 575.150, such that resisting can occur at any
time prior to confinement; and 3) in light of the foregoing answers, was Mr.
Ajak’s arrest effected prior to his resistance? Determining when Mr. Ajak was “arrested” is
crucial because any resistance must have come before his arrest was effected – his
resistance must have been for the “purpose of preventing the officer from
effecting the arrest.”[29] Mr. Ajak argued he was arrested in his kitchen,
prior to his resistance; the State argued Mr. Ajak was not under arrest until
he was placed in the patrol vehicle.[30]
Sitting en banc,
the Supreme Court of Missouri, Judge Laura Denvir Stith writing for the
majority, concluded that the definition of “arrest” in section 544.180 controls
for purposes of section 575.150.[31] The majority noted that the statutory
definition of arrest has been identical for a century.[32] The majority also noted the long history of utilizing
this century-long definition of arrest.[33] Most importantly, perhaps, the majority noted
the principle that, “[w]hen the legislature enacts a statute referring to
terms that have had other judicial or legislative meaning attached to them, the
legislature is presumed to have acted with knowledge of that judicial or
legislative action.”[34] In the majority’s view, the legislature that
crafted section 575.150 was presumably aware of the judicial meaning attached
to the term “arrest” as defined in section 544.180 and utilized in caselaw.[35] Therefore, since no special definition of
“arrest” was adopted by the legislature when enacting section 575.150, it must
have intended that the century-long definition recognized in section 544.180 govern.[36]
Using
this statutory definition of arrest – “an actual restraint of the person of the
defendant” – the Supreme Court of Missouri determined arrest was not an ongoing
process.[37] The court noted that to hold otherwise would
create inconsistencies with section 544.180, with the term “custody” as it is
defined in Missouri’s Criminal Code, and with prior Missouri caselaw.[38] The court cited its prior interpretations of
arrest, where the court held that arrest occurs “from the moment the police
officer takes control of [a suspect’s] movements.”[39] Therefore, the arrest of Mr. Ajak was
effected when his person was restrained; when officers “took control of his
movements.”[40] The court emphasized that the question of when
an arrest is effected for purposes of section 575.150 is a fact-specific
inquiry that is dependent on the circumstances of each case.[41] According to the court, the most critical
element of the inquiry is the point at which an officer has control over a
defendant’s movements – the point at which the defendant is subject to the
officer’s restraint.[42]
In Ajak, the court determined that Mr. Ajak
was arrested for purposes of section 575.150 in his kitchen, where he was
handcuffed and surrounded by officers.[43] It was at this point that Mr. Ajak’s movements
“were completely under the officers' control; he was handcuffed and not free to
leave, the officers attempted to dress Mr. Ajak for the walk to the patrol
vehicle, and they took his arms in their hands and escorted him in handcuffs.”[44] Only then did Mr. Ajak resist.[45] However, resisting arrest requires that an
arrest be “in progress” and Mr. Ajak’s resistance occurred after his arrest had
been effected.[46]
Therefore, the court held that Mr.
Ajak’s resistance could not have been “for the purpose of preventing” officers
from effecting the arrest, as required to support a conviction under section
575.150.[47]
The court acknowledged that the evidence
may have instead supported a conviction for attempt to escape from custody, but
the State did not charge Mr. Ajak with this crime.[48]
IV. Comment
State v. Ajak highlights two important, interrelated points for
practitioners, which are especially relevant for prosecutors. First, Ajak
unequivocally holds that arrest is not an ongoing process under section
575.150.[49] For purposes of section 575.150, “arrest”
occurs the moment officers have control of a suspect’s movements.[50] Determining the moment an arrest has occurred
requires a fact-specific inquiry and may be different in each case.[51] Therefore, prosecutors need to be familiar
with the facts of a case before deciding to charge an individual with resisting
arrest. If resistance occurs after
officers have control of a suspect’s movements – after “an actual restraint of
the person of the defendant” – the
evidence will be insufficient to support a conviction for resisting
arrest.
Second,
when the factual circumstances of a case are murky as to when an arrest is
actually effected, a prosecutor should charge a defendant with resisting arrest
and attempt to escape from
custody. Failure to charge both crimes may
lead to a defendant evading accountability for violations of the law.
- Taylor A. Payne
[1] State v. Ajak, 543 S.W.3d 43, 44
(Mo. 2018) (en banc).
[2] Id.
[3] Id. at 45.
[4] Id.
[5] Id.
[6] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 46.
[18] Id.
[19] Id.
[20] Id.
[22] Id. at
48–50.
[23] Id. (emphasis
added).
[24] The current version of section 575.150 likewise does
not define arrest. See Mo. Rev. Stat. § 575.150 (2017).
[26] Id. at 47
(“See, e.g., RSMo 1879 § 1826; RSMo 1939, § 3959.”).
[27] Id.
[28] Id. at 48
(discussing State v. Sampson, 408 S.W.2d 84, 86-87 (Mo.
1966)) (“A person may be said to be under arrest from the moment the police
officer takes control of his movements.” See
Mo. Rev. Stat. § 544.180
(1959)); see also State v. Stokes,
387 S.W.2d 518, 522 (Mo. 1965) (“We agree with the finding of the trial court
that defendant was under arrest from the time the officer took control of his
movements and directed him to ‘stand up.’” See
§ 544.180).
[29] See id.
[31] Id.
[32] Id.
[34] Ajak, 543
S.W.3d at 48 (quoting Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427
S.W.3d 815, 825–26 (Mo. 2014)).
[35] Id.
[36] Id.
[37] Id. at
50–51.
[38] Id.
[39] Id. at 50
(citing State v. Sampson, 408 S.W.2d 84, 86–87 (Mo. 1966)).
[40] See id. at 49.
[41] Id. at 50.
[42] See id.
[43] Id. at 50.
[44] Id.
[45] Id.
[46] Id. at 51.
[47] Id.
[48] Id. “A
person commits the crime of escape
from custody or attempted escape from custody if, while being held in custody after arrest for
any crime, he escapes or attempts to escape from custody.” Mo. Rev. Stat. § 575.200 (2000). “[A]
person is in custody when the person has been arrested but has not been delivered to a place of
confinement.” § 556.061(7).
[51] Id. at 50.
