Perdue v. Commonwealth
411 S.W.3d 786
| Ky. Ct. App. | 2013Background
- Police served a district-court arrest warrant at Perdue's mother's house; officers escorted Perdue outside and into a cruiser.
- Perdue was handcuffed, became combative when an officer noticed a safety pin on underwear he carried, lunged, spat, yelled, and attempted to head-butt the officer; officer sustained minor scratches.
- Officers were unable to complete a search at the scene; at booking a glass crack pipe with cocaine residue was found in Perdue's pocket.
- Grand jury indicted Perdue for promoting contraband, resisting arrest, possession of drug paraphernalia, and disorderly conduct; he was acquitted of promoting contraband but convicted of the other three misdemeanors.
- Perdue moved for directed verdicts (denied) arguing (1) resisting arrest was improper because he was already "under arrest," (2) disorderly conduct could not be in a "public place," and (3) jury instruction for drug paraphernalia should have included the element "knowingly."
- Trial court denied directed verdicts, refused to add "knowingly" to the paraphernalia instruction, and the convictions/punishment (twelve months, probated) were affirmed on direct appeal.
Issues
| Issue | Perdue's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether resisting arrest requires the arrest to be "effected" (instantaneous) before resistance occurs | Perdue: Arrest was already effected (in custody/handcuffed), so resistance could not support conviction | Commonwealth: "Effecting an arrest" is a process; officers had not completed it when Perdue fought | Court: Adopted a process view; reasonable jurors could find arrest was not yet effected—denied directed verdict |
| Whether disorderly conduct element "in a public place" was met | Perdue: Conduct at/near mother’s house (and later in jail) was not a public place | Commonwealth: Conduct occurred on a residential street accessible to the public; jury instruction narrowed location to the street | Court: Street location satisfied "public place" and statute requires only that conduct be likely to affect a substantial group—denied directed verdict |
| Whether possession-of-paraphernalia instruction must include "knowingly" | Perdue: Jury should be instructed that possession must be knowing | Commonwealth: Statutory language requires possession with intent to use; adding "knowingly" would add an unlisted element | Court: Instruction tracked statute (possessed with intent to use); no error in omitting separate "knowingly" element |
Key Cases Cited
- Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (directed-verdict standard and appellate review)
- State v. Mitchell, 204 Ariz. 216, 62 P.3d 616 (Ariz. Ct. App. 2003) ("effecting an arrest" is an ongoing process; resisting arrest may occur after handcuffing)
- State v. Lindsey, 158 N.H. 703, 973 A.2d 314 (N.H. 2009) (arrest process viewed as continuum; question is fact-specific)
- Acosta v. Commonwealth, 391 S.W.3d 809 (Ky. 2013) (directed-verdict review governed by statutory elements and trial proof, not flawed jury instructions)
- Monumental Life Ins. Co. v. Dept. of Revenue, 294 S.W.3d 10 (Ky. App. 2008) (principles of statutory construction; plain meaning controls)