July 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT C. GRIGLAK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-01-87.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2007
Before Judges R. B. Coleman and Gilroy.
On January 15, 2005, defendant Robert C. Griglak was charged by a Bergen County Grand Jury with third degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count one), and third degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (count two). The indictment arose out of events occurring outside of Fatso Fogarty's bar in North Arlington on August 20, 2004.
That night at approximately 12:52 a.m., the police were called to the bar for an unrelated incident and were questioning two individuals outside when defendant walked in between Officer Sean MacDonald and the individual he was interviewing. Defendant stated, "Hi, Officer, what's up?", or words to that effect, to Officer McDonald. Defendant also allegedly gave one of the suspects a "high five" with his knuckles. Officer Robert Evans, Officer MacDonald, and Sergeant Sean Carroll all told defendant to leave the area multiple times. Defendant responded that he "was not doing anything" and that "all I did was say hi." Sergeant Carroll instructed the bouncer at the bar not to allow defendant and his friends back into the bar.
Defendant and his friends briefly left the area, retrieved an audio tape recorder from their car, and returned. Defendant proceeded to tape some of his exchanges with the police officers. These audio tapes, as well as video tapes made from cameras in police cars at the scene, were played for the jury at trial. In them, defendant is heard protesting to the bouncer that he had not done anything wrong and should be allowed to go into the bar. Sergeant Carroll again instructed defendant to leave.
After further conversation, Sergeant Carroll decided to arrest defendant. He testified that he told defendant he was under arrest, and that defendant responded by striking Sergeant Carroll with his right hand in the neck and throat. Sergeant Carroll attempted to place defendant in a "compliance hold" in order to handcuff him. However, while attempting to secure defendant's arms, both individuals fell to the ground, with Sergeant Carroll believing that defendant deliberately caused the fall. Thereafter, Officer Evans successfully placed the handcuffs on both of defendant's hands and he was transported to police headquarters.
After the incident, Sergeant Carroll was examined at the hospital that day and was released to return to duty. The following day, Sergeant Carroll was examined by his private physician and diagnosed as having suffered a torn cartilage and tendon in his right wrist, torn cartilage in his right knee, and a torn rotator cup. He was not certified to return to duty for eight weeks.
Following a trial before a jury, defendant was found not guilty of count two, third degree aggravated assault on a police officer. Defendant was found guilty of a lesser-included disorderly persons offense of resisting arrest on count one. The court initially imposed a one year probationary term, subject to thirty days in the county jail, but subsequently reduced the custodial term to six days, crediting defendant with time served.
On appeal, defendant argues:
POINT I: THE TRIAL COURT IMPROPERLY BARRED CROSS-EXAMINATION OF THE COMPLAINANT RELATING TO HIS SICK TIME CLAIM AND WORKER'S COMPENSATION CLAIM AS A RESULT OF DEFENDANT'S ARREST.
POINT II: THE TRIAL COURT IMPROPERLY BARRED CROSS-EXAMINATION OF THE COMPLAINANT'S IMPROPER EXPERT TESTIMONY THAT THE MANNER IN WHICH DEFENDANT FELL TO THE GROUND WHILE IN A POLICE COMPLIANCE HOLD WAS A JUDO MOVE.
POINT III: THE JURY WAS IMPROPERLY CHARGED ON RESISTING ARREST AS IT RELATED TO OTHER POLICE OFFICERS.
After carefully considering defendant's arguments in light of the record and the applicable law, we affirm.
Defendant claims that the trial court improperly barred cross-examination of Sergeant Carroll concerning his sick time claim and workers' compensation claim as a result of defendant's arrest. Defendant contends that examining Sergeant Carroll about his claim that his injuries were work-related would have furthered defendant's theory that the officer embellished his injuries and that it was reversible error for the trial court to bar cross-examination on those issues. We disagree.
While the Sixth Amendment generally guarantees the accused the opportunity to cross-examine witnesses, Point v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 923 (1965), this right is not without restriction. See N.J.R.E. 403 (allowing for the exclusion of relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence"). Trial courts have broad discretion to determine the proper limitation of cross-examination of witnesses on issues of credibility. State v. Rose, 120 N.J. 523, 577-78 (1990); State v. Pontry, 19 N.J. 457, 473 (1955); State v. Zwillman, 112 N.J. Super. 6, 17-18 (App. Div.), certif. denied, 57 N.J. 603 (1971).
Judge John A. Conte properly exercised his discretion in limiting cross-examination concerning Sergeant Carroll's use of sick time and any workers' compensation claim. Defendant brought out on cross-examination that Sergeant Carroll was released by the hospital on August 20, 2004, with a document indicating that he could return to work the following day and that he later went to the doctor who had performed his prior knee surgeries, whose diagnosis was that the officer had been seriously injured and could not return to duty for eight weeks. Sergeant Carroll also testified that he used sick time while on leave and that no workers' compensation claim had ever been filed as a result of the incident.
An appellate court "will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div.), certif. denied, 189 N.J. 297 (2005) (quoting State v. Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002). Since defendant was able to elicit all of this information from Sergeant Carroll, he was not denied his right to a fair trial. The jurors were able to evaluate Sergeant Carroll's credibility and to make their own determination as to the validity of his injuries. Moreover, while defendant's arguments relate to injuries allegedly suffered by the officer, the jury acquitted defendant of aggravated assault, obviously rejecting the allegation that defendant caused Sergeant Carroll's injuries. Under such circumstances, the limitation on defendant's cross-examination, if error, was harmless.
Defendant also contends that the trial court should have permitted cross-examination of Sergeant Carroll's testimony that the manner in which defendant fell to the ground while in a police compliance hold was a "judo" move. Defendant was convicted of resisting arrest contrary to N.J.S.A. 2C:29-2a(1).
That offense involves purposely preventing or attempting to prevent a law enforcement officer from effectuating an arrest. Force is not an indispensable element of the offense, however, the disorderly persons offense of resisting arrest is upgraded to a crime of the third degree if the person uses or threatens to use force or violence against the law enforcement officer or another. N.J.S.A. 2C:29-2a(2)(a). Therefore, there is no error in the judge's exercise of discretion to limit cross-examination on whether or not defendant's resistance in falling to the ground was a judo move.
We recognize that Sergeant Carroll testified that he was a Marine with training in judo and that, in light of his training and experience, any offer of an opinion by him as to the nature of the move performed by defendant might have assisted the jurors in their analysis of the facts. However, other officers testified that defendant and Sergeant Carroll simply fell to the ground. We are satisfied the jury had the opportunity to weigh their testimony against that of Sergeant Carroll. Furthermore, whether defendant performed a "judo" move or not, the evidence indicates that he did not submit to the arrest. In a recent case, State v. Crawley, 187 N.J. 440 (2006), the Supreme Court held that a suspect must submit to an arrest, even if illegal. Id. at 453. "[C]courts are the proper forum for challenges to the misuse of official power and for the vindication of rights." Id. at 454. Based on defendant's obligation to submit to the arrest and, without a showing of clear error and prejudice to defendant, we "will not interfere with the trial judge's authority to control the scope of cross-examination[.]" Messino, supra, 378 N.J. Super. at 583.
Finally, defendant alleges that the court erred in its charge to the jury because it was not sufficiently molded to give the jurors clear guidance in their deliberations. It is noted that defendant did not object at trial to the resisting arrest instruction given to the jury. Therefore his objection now must rise to the level of plain error, i.e., that which "'possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (App. Div. 2006) (quoting State v. Hock, 54 N.J. 526, 538, cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)).
The trial judge has an obligation to instruct the jury on the law governing the facts of the case. State v. Afanador, 151 N.J. 41, 56 (1997); State v. Alexander, 136 N.J. 563, 571 (1994). Judge Conte gave the model jury charge for resisting arrest. Defendant now contends that the jury could have been confused as to whether the State was alleging that defendant's initial conduct of walking in between Officer MacDonald and his interviewees amounted to an "attempt to prevent a law enforcement officer from effectuating an arrest" or whether it was defendant's conduct, in physically resisting Sergeant Carroll's efforts to handcuff him, that the State alleged amounted to resisting arrest.
The prosecutor's summation made it clear that the charge of resisting arrest was predicated upon defendant's refusal to put his hands behind his back after the officer stated he was under arrest. The jury had to decide whether it believed that Sergeant Carroll did announce that defendant was under arrest or whether he merely stated his intention to arrest defendant if defendant did not leave the area. Even if the charge on resisting arrest might have been tailored more clearly, the failure to have so tailored it did not, in our view, rise to the level of plain error. The charge did not have a clear capacity to bring about an unjust result.
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