Matthews, Lora and Morgan.
Defendant was charged in a two-count indictment with assault and battery upon two municipal police officers, Richard Fennessy and Joseph DeMarco (Count One) and with resisting arrest (Count Two). The jury acquitted him on the first count and found him guilty of the second one. Defendant appeals.
During the evening of October 11, 1973 defendant and his wife, Patricia Lawrence, were drinking at the Ship Wheel Inn, Brielle, where they consumed approximately six drinks each. According to Eric Baranick, defendant's brother-in-law and the bartender at the Ship Wheel Inn, when defendant left the bar at approximately 2 A.M., October 12, he was not intoxicated.
Officers DeMarco and Jones of the Point Pleasant Borough Police Department were patrolling Highway 88 during the early hours of October 12 when they observed a Cadillac, proceeding in a westbound direction on Highway 88, swerve across the road to the shoulder of the eastbound lane and then return to the westbound lane. The erratic movement of the Cadillac forced a van-type vehicle proceeding in the eastbound lane to leave the road to avoid a possible collision.
Officers DeMarco and Jones stopped the Cadillac which was being driven by defendant. At this point, the testimony supports two versions of the ensuing events. According to the police, DeMarco approached the driver's window and asked the defendant for his license and registration. In attempting to open his window defendant was unable to find the appropriate electric switch, and windows began to go up and down all over the car. Eventually, defendant's wife handed his license and registration to DeMarco.
DeMarco asked defendant to get out of the car. Defendant did so, but once on his feet he had to lean against the car for support. DeMarco smelled alcohol on the defendant's breath and placed him under arrest for drunken driving, informing defendant that he was required to accompany them to the police station. Defendant responded, "you will have to take me by force." At this point DeMarco grasped defendant's left arm and Officer Fennessy, who had arrived on the scene during the interim, held defendant's right arm. The two officers brought defendant to DeMarco's police car with difficulty because defendant was kicking and pushing against them with his feet. At the police car defendant was handcuffed. However, the officers were unable to get him into the car.
Meanwhile, Sergeant Kling, a personal friend of defendants, arrived on the scene and was able to induce defendant to sit in the police car. DeMarco and Jones drove defendant to the police station. Fennessy took Mrs. Lawrence, also under arrest for assaulting Fennessy, to the police station.
At the police station further difficulties between the defendant and the police ensued. As defendant was being escorted toward the cell area a ring dropped from one of his fingers. When Officer Jones sought to retrieve it defendant tried to kick him, but missed. On first arriving at the cell defendant landed a kick to Officer Fennessy's thigh. At this point Fennessy stated that he placed defendant under arrest for assault and battery, and then he and DeMarco departed from the cell area after having removed the handcuffs.
A short time later DeMarco and Fennessy returned to defendant's cell for the purpose of searching him. Defendant punched Fennessy in the face and DeMarco in the left wrist, which was later found to be broken. Fennessy tackled defendant, and with the help of DeMarco managed to subdue and search him. The officers testified that they did not strike defendant during this incident.
According to defendant his car swerved into the wrong lane only because he dropped a cigarette down under his shirt. He denied being drunk. Hearing the siren behind him, he pulled to the shoulder of the road and stopped. The officer who approached the driver's side of the defendant's car stated, "Get out of the car, you goddam drunk. You almost killed somebody." As defendant opened the door, the officer pulled him violently, causing defendant to lose his balance and fall to the ground. Upon regaining his feet, the officers began to shove him from one to the other until one officer kicked him behind the knee, causing defendant to again fall to the ground. Back on his feet and handcuffed, defendant was taken to the police car where he was kneed in the stomach before falling into the car.
Upon entering the police station, defendant was brought into a room where bright lights were flashed into his eyes. Here, defendant was struck twice in the face knocking him to the floor where he was kicked twice. After refusing to take a breathalyzer test, defendant was ...