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Waffle House Verdicts Inconsistent? Can Conviction Stand?

Last night a Mobile County jury found Chikesia Clemons NOT GUILTY of Disorderly Conduct, but GUILTY of Resisting Arrest. On it face, the verdicts appear to be inconsistent. After all, how can an accused be found to be resisting an arrest for an offense (disorderly conduct) that a jury said she was NOT GUILTY of? Further in Alabama, a citizen has a right to resist an unlawful arrest. ‘The law in Alabama is clear that, to a limited degree, a party is justified in attempting to resist an unlawful arrest. A party may use reasonable force to extricate himself from an unlawful arrest.’ ” Telfare v. City of Huntsville, 841 So.2d 1222, 1229 (Ala.2002)(quoting Ex parte Wallace, 497 So.2d 96, 97 (Ala.1986)). Hunter v. State, 867 So. 2d 361, 363 (Ala. Crim. App. 2003). However a close reading of the resisting arrest statute provides only that the arrest must be lawful.

Ala.Code 1975 § 13A-10-41 defines Resisting Arrest as:

(a) A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person.

In this context the arrest for disorderly conduct charge would be lawful if it was supported by probable cause. In other words the touchstone of the analysis here is not whether a jury or judge finds the person guilty of the underlying disorderly offense, but only if there was probable cause to believe the offense was committed. After all, a jury must acquit if they do not find an accused guilty beyond a reasonable doubt, a much lower threshold than mere probable cause.

The closest I have come in my research of Alabama case law is Graham v. City of Mobile, 686 So. 2d 541 (1996), an Alabama Court of Criminal Appeals case where the defendant was charged and convicted of both Assault, 3rd Degree and Resisting Arrest. On appeal, the Alabama Court of Criminal Appeals held there was insufficient evidence of the assault and reversed the assault conviction, but sustained the resisting arrest conviction:

Contrary to Graham, Sr.’s [the accused] argument, there was substantial testimony supporting the jury’s verdict that the appellant was guilty of resisting arrest. The City presented evidence that Graham, Sr., was originally approached by police officers on a menacing charge. There was also evidence that as Graham, Sr., made an overt motion with his hand, Officer Byrts attempted to place him in custody by handcuffing him. Testimony was presented that Graham, Sr., physically resisted after which a struggle ensued between him and Officer Byrts. This testimony is sufficient to support the jury’s verdict.

In the final analysis, I believe the Court must only find the arrest for disorderly conduct was lawful- that is supported by probable cause (a much lower standard than beyond a reasonable doubt) to sustain the resisting arrest conviction. The fact that a jury does not find an accused guilty of a criminal charge beyond a reasonable doubt, does not by itself make the arrest unlawful. Courts in other jurisdictions have held this. Although the arrest must be "lawful," it is not necessary for the state to prove that the defendant was in fact guilty of the offense for which the arrest was made to uphold a conviction for resisting arrest. State v. Hurst (Nov. 22, 1989), Hamilton App. No. C-880706, unreported, 1989 WL 140010. An arrest is "lawful" if the surrounding circumstances would give a reasonable police officer cause to believe that an offense has been or is being committed. Id.; Parma Heights v. Kaplan (Mar. 30, 1989), Cuyahoga App. No. 55108, unreported, 1989 WL 30584.

If the Court finds that the arrest for disorderly conduct was supported by probable cause, the arrest is lawful, and any resistance to a lawful arrest is a violation of Alabama's Resisting Arrest statute and the jury verdict in this regard is due to least as to this issue of inconsistent verdicts.


News Stories

AL.COM story this morning on the verdicts


Matt Green represents persons in a wide variety of criminal and constitutional matters. He represents personal injury victims as well. Matt served as a municipal court traffic court judge in the City of Mobile and the City of Saraland for nearly a decade. Before that Matt prosecuted major felonies, traffic homicides, and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel. Matt also advocates for free speech, economic liberty, and due process. He may be reached at 251.434.8500 or by e-mail at or by Twitter @greenlawoffice


The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyer

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