On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 01-02-0214.
Before Judges Pressler, Ciancia and Alley.
The opinion of the court was delivered by: Pressler, P.J.A.D. (retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a jury trial, defendant Raymond Simms was convicted of the third-degree crime of resisting arrest by use of physical force or violence against the law enforcement officer attempting the arrest. N.J.S.A. 2C:29-2a(3). He was acquitted of the companion third-degree charge of assault upon a law enforcement officer. N.J.S.A. 2C:12-1b(5). He was sentenced to a four-year prison term on the resisting arrest charge. Defendant appeals, and we reverse and remand. We are satisfied that he was entitled to a self-defense charge and, moreover, that the instruction to the jury had the capacity to have confused it.
In challenging the judgment of conviction, defendant raises the following issues:
I. THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON THE USE OF FORCE IN SELF-PROTECTION REQUIRES REVERSAL OF SIMMS' CONVICTION WHERE THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH THE JURY COULD HAVE CONCLUDED THAT THE FORCE SIMMS USED AGAINST OFFICER WOODHEAD WAS IN DIRECT RESPONSE TO OFFICER WOODHEAD'S USE OF UNLAWFUL FORCE AGAINST HIM.
II. THE TRIAL COURT'S INADEQUATE RESPONSE TO
THE JURY'S REQUEST FOR CLARIFICATION REQUIRES REVERSAL OF SIMMS' CONVICTION.
We reject defendant's second point. The judge's admonition to the jury to refer to the original charge, which it already had in hand, was reasonable, particularly in view of his assurance that if the jury then had any further question, he would attempt to answer it more specifically. Our review of the record persuades us, however, that there is merit in defendant's first point.
The State's sole witness at trial was Camden Officer Woodhead who effected the arrest. Defendant was the sole witness on his behalf. The import of Woodhead's testimony was that while on uniformed patrol in a marked police vehicle, he noticed a group of African-American men on the sidewalk, two of whom, including defendant, he recognized. Across the street from this group were two white men. Woodhead observed defendant reach towards his pocket with one hand and wave to the white men with the other. As he then drove past, he saw defendant cross the street towards the white men. Woodhead drove around the corner and approached the scene on foot. He heard one of the men in defendant's group yell out a coded warning that the police were in the area and saw defendant run into a delicatessen Believing defendant was engaging in narcotics trafficking, Woodhead followed defendant into the store, grabbed him, escorted him outside, and placed him against a wall, leaning his body into defendant's to keep him pinned. Defendant then put his hand into his pocket, leading Woodhead to believe that he might be reaching for a weapon. Woodhead then grabbed defendant's arm and told him he was under arrest. At that point, according to Woodhead, defendant broke free, punched Woodhead in the chest and started to run away. Defendant fled to his own house, which was on the same street. Woodhead followed him, and then effected the arrest.
Defendant told a different story. According to him, he was essentially minding his own business, was not engaging in any narcotics trafficking and had gone into the delicatessen to buy a soda, where he was suddenly and without cause accosted by Woodhead. Woodhead, he said, took physical hold of him, walked him out of the store, and put him up against the wall. The import of that testimony was that up to that point there was no resistance. But defendant further testified that Woodhead ...