On appeal from Superior Court, Law Division, Monmouth County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D., Retired (temporarily assigned).
[166 NJSuper Page 65] These are consolidated appeals by defendant Elijah Blanton, Sr. ("Elijah") and his son, John Blanton ("John"). Elijah was convicted of assault and battery upon a police officer and John of atrocious assault and battery and resisting arrest. The events giving rise to the charges resulting in these convictions occurred in the course of a disturbance on
May 28, 1976 at a playground near a low-income housing project in Long Branch.
The police were originally dispatched to the playground after Elijah's wife called to report an argument between another of her sons and a third person she thought to be in possession of a gun. No gun was found. However, Elijah was carrying on in a loud manner, yelling at and chasing children and arguing with the purported possessor of the gun. There was other testimony that Elijah was simply trying to restore peace to the area. The police soon withdrew from the scene.
Within a short time the police returned to the scene on the order of a superior officer to arrest Elijah if he was found to be causing trouble. The return of the police developed into a melee either witnessed or participated in by a large number of people, mostly juveniles. According to the State's evidence, Officers Wettermark and Brown accosted Elijah and informed him he was under arrest. He pulled away from them, and sticks and other objects were thrown at the officers, Officer Wettermark being struck by some of them. Officer Brown embraced Elijah in a full nelson and in return was bitten by Elijah on his arm. This action was the basis of the charge against Elijah of assault and battery against a police officer.
The charges against John arose out of the attempt of Officer DeFillipo to go to the aid of the officers seeking to arrest Elijah. DeFillipo testified that as he approached the officers and Elijah he noticed an individual wearing an orange tee shirt to his right at a distance of between six and ten feet and immediately thereafter sustained a blow to the top of his head. The man in the orange shirt was John. DeFillipo at once turned around and confronted John, the latter looking directly at him, about three feet away. John had a stick or pipe in his hand of a cylindrical shape and about 2 I/2 feet long. There were no other people in the immediate area. John turned and ran toward his apartment with DeFillipo and Officer Richards in pursuit, the former yelling, "I want
him. He hit me." John ran into one door and out another, whereupon he was tackled by one of the officers. There was testimony that John was resisting the officers' efforts to subdue him, "moving his arms about" and attempting to arise from the ground. DeFillipo was bleeding profusely from his scalp. There was other testimony that prior to the assault on Officer DeFillipo John had run into Officer May and had struck him on the arm with a stick and then continued running. However, he was acquitted of a separate charge of assault on Officer May.
John's testimonial version of the events was that he was in the playground practicing for a state championship relay meet to be held the next day and that he was in possession of a relay baton about 12 inches long. When the police came upon the scene they began spraying mace. John saw his father surrounded by police officers and others and asked the officers to let his father alone. One of the officers angrily reached for his gun and John ran away in fear, alleging, before an objection by the State was sustained, that he recalled a former local incident involving the shooting of a juvenile by police. He did not strike anyone but remembered bumping into someone while running away. No one told him he was under arrest at any time. He was assaulted by the police after he emerged from his home.
Elijah complains of the exclusion by the trial judge of Officer May's hospital record concerning the bruise allegedly inflicted upon him by John, offered by Elijah to impair May's credibility in respect of May's testimony concerning the bite Elijah inflicted on Officer Brown. We find no prejudicial error. In the first place, the hospital record was not sufficiently authenticated. See Mahoney v. Minsky , 39 N.J. 208, 218 (1963); Webber v. McCormick , 63 N.J. Super. 409, 416 (App. Div. 1960). Second, the exclusion was harmless as May was confronted with the record and
the jury was undoubtedly made aware of the alleged deviance between the record and his testimony. Furthermore, the evidence was sufficiently remote in relation to the facts regarding the assault on Officer Brown as to have warranted its ...