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State v. Graham


February 11, 2009


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 06-05-0431, 06-02-0181; DP No. W-2007-243315-0802.

Per curiam.


Submitted: October 22, 2008

Before Judges Cuff and Baxter.

Following a jury trial on Indictment No. 06-05-0431, defendant Emanuel L. Graham was found guilty of third degree resisting arrest, N.J.S.A. 2C:29-2a(3). After trial, but prior to sentencing, defendant pled guilty to fourth degree resisting arrest, N.J.S.A. 2C:29-2a(2), under Indictment No. 06-02-0181; and the disorderly persons offense of shoplifting, N.J.S.A. 2C:20-11, under W-2007-243315-0802. After denying the State's motion for an extended term, the judge sentenced defendant to a five-year term of imprisonment with a thirty-month period of parole ineligibility on the tried charge of resisting arrest. On the charges to which defendant pled guilty, the judge sentenced defendant to an eighteen-month term for resisting arrest and a six-month term of imprisonment for shoplifting. All sentences are concurrent. The appropriate fines, penalties and assessments were also imposed.

On appeal, defendant raises the following arguments:





We affirm.

On the afternoon of February 15, 2006, at approximately 5:00 p.m., Officers Bish and Marino of the Paulsboro Police Department were on patrol in a black unmarked police cruiser when Bish spotted defendant on the street. Bish recognized defendant and knew there were outstanding warrants for defendant's arrest. Bish, dressed in plain clothes, exited the car and approached defendant. What happened next was hotly contested.

Bish testified that he informed defendant he was a police officer, showed defendant his badge, and told defendant he was under arrest. According to Bish, defendant continued to walk away from him and rounded a corner. Bish heard a door shut and believed defendant had entered a nearby duplex. Bish and Marino set up a perimeter surveillance around the house and called for backup.

Shortly thereafter, Sergeant Menitti and Patrolmen Suter and Kanauss arrived at the scene. All were in police uniforms. Kanauss heard a noise on the side of the house and found defendant opening a window. Kanauss ordered defendant to stop, told him he was under arrest, and asked him to show his hands. Defendant ignored the commands and Kanauss drew his weapon but attempted to re-holster the gun when he noticed defendant was unarmed. Defendant jumped from the window, ran towards Kanauss, and hit the officer's lip as he made his escape. A chase ensued. Moments later, Bish encountered defendant in a yard. Defendant took an "aggressive stance" towards the officer, ignored a repeated command to stop, and continued on foot. Defendant then headed back in the direction of Kanauss, who managed to tackle him.

Once defendant was on the ground, Bish and Kanauss attempted to gain control of his arms. Kanauss was on the right side of defendant, Bish was on the left, and defendant "was trying to push himself back up and pull his arms away from [the officers]." They were "prying his arms," trying to get "arm bars or some type of lock to be able to control his arms." Defendant continually tried to push himself away and stand up. After a brief struggle, the officers were able to subdue and handcuff defendant.

Defendant offered a decidedly different version. According to defendant, as he was walking, a black car "rolled up" beside him. Bish exited the car and said "Hey you, come here." Bish was wearing a sweat suit, "had a gun out," and threatened to shoot defendant if he did not stop. Bish never told defendant he was under arrest and never showed his badge. Defendant fled because he thought Bish might be trying to rob or harm him. As he walked along a path near the duplex, defendant saw Bish with his gun drawn; Bish "was trying to hit [defendant] with the gun" when defendant ran by, so defendant "just kept it moving." Defendant ran "straight through the path" and tried to climb a fence; he got caught in the barbed wire and Bish pulled him from the fence.

Defendant's testimony conflicts as to when he realized he was being pursued by the Paulsboro Police. Initially, he testified that he did not realize the men were police officers until after he was apprehended, when a uniformed officer climbed over the fence. Later, he testified that he thought the police were involved as soon as he saw Bish exit the unmarked car. Defendant "knew it had something to do with Paulsboro Police because it was an unmarked vehicle, a black unmarked car." Defendant believed he was a "target"*fn1 because he had filed a complaint against the police department; his reaction was to run towards his friend's house so witnesses "[could] all see what they going to do."

At the charge conference, the prosecutor requested the judge charge fourth degree resisting arrest by flight as a lesser included offense. Defense counsel conceded "that I am not factually surprised by the allegations of flight. It's all over the discovery." He resisted the charge because the grand jury had not made a finding of flight. Defense counsel noted that flight enhances a simple assault, a disorderly persons charge, to a fourth degree offense and should be incorporated in the jury instructions only if the grand jury found such a charge was appropriate. The trial judge concluded that he would not charge the fourth degree offense because defendant would receive the benefit of a simple assault charge as a lesser included offense of third degree resisting arrest by use of force. The judge also reasoned that flight is an enhancing factor, the grand jury had not found that factor and he did not want to give the jury "a shopping list to pick from."

Correct jury instructions are critical to guide the jury's consideration of issues in criminal matters. State v. Jenkins, 178 N.J. 347, 361 (2004). It is also essential to a fair trial that the judge present all appropriate charges against defendant to the jury for its consideration "when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Ibid.

N.J.S.A. 2C:1-8d governs included offenses. It provides that a defendant may be convicted of an offense included in a charged offense when the included offense is established by proof of the same or less than all of the facts required to establish the charged offense. N.J.S.A. 2C:1-8d(1). Here, in requesting that the trial judge charge fourth degree resisting arrest by flight, the State requested an instruction on a related rather than an included charge. A related charge shares a common factual nucleus, N.J.S.A. 2C:1-8a, whereas an included offense shares some or all of the elements of the greater offense. N.J.S.A. 2C:1-8d(1). The included offense analysis focuses on a comparison of statutory elements; the related offense analysis focuses on the conduct and whether the conduct of defendant may establish the commission of more than one offense. State v. Thomas, 187 N.J. 119, 129-30 (2006).

In this case, proof of fourth degree resisting arrest by flight requires evidence of some of the elements of third degree resisting arrest plus evidence of the additional element of flight. Compare N.J.S.A. 2C:29-2a(2) (resisting arrest by flight), with N.J.S.A. 2C:29-2a(3)(a) (urging or threatening to use physical force against a police officer), and N.J.S.A. 2C:29-2a(3)(b) (using any means to create a substantial risk of physical harm to a public servant). As such, it cannot be considered an included offense. On the other hand, the factual circumstances demonstrate that fourth degree resisting arrest by flight should be considered a related offense.

The status of the offense as an included or related offense and which party requests the lesser included or related offense charge bears on the standard applied by the trial judge considering the request. A judge must charge a lesser included offense that is not requested by a defendant only when the facts in evidence "clearly indicate" that the charge is appropriate. State v. Savage, 172 N.J. 374, 396-97 (2002).

When, however, the prosecutor requests a charge on an offense that is related to, but not included in the charged offense, the judge must refuse to do so absent waiver by the defendant. Thomas, supra, 187 N.J. at 132-33. The Court explained:

A different analysis obtains when the claim is made that the trial court should instruct the jury in respect of an offense that is related to, but not included within, the offenses charged in the grand jury indictment, that is, offenses that share a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment. State v. Brent makes clear that, absent a waiver by the defendant, our constitutional guarantee of prosecution only by grand jury indictment precludes any prosecutorial request for a jury instruction in respect of a related offense. Supra, 137 N.J. at 116 (citing State v. Battle, 256 N.J. Super. 268, 281 (App. Div.), certif. denied, 130 N.J. 393 (1992) ("In the absence of a valid waiver, the submission to the jury of an offense which is not a lesser included offense violates a defendant's state constitutional right not to be tried except upon the presentment or indictment of a grand jury.") (citations and internal quotation marks omitted)). Thus, if, in response to the State's request for a related offense charge, the defendant knowingly and intelligently waives his constitutional rights, there is no constitutional impediment to the State's requested related offense charge. Therefore, whether requested by the defendant or the State, because a defendant can waive his constitutional grand jury protections, we allow a trial court to instruct the jury on a related charge when two factors coalesce: the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense.


As presented, the trial judge properly declined to charge fourth degree resisting arrest by flight. As a related offense not included in the indictment, defendant had the constitutional right to object to the charge and the judge was required to respect that choice.

Of course, having been convicted of third degree resisting arrest, defendant has had a change of heart. His contention in this appeal must be evaluated in accordance with the plain error standard. R. 2:10-2. That is, we must determine whether a manifest injustice occurred when the judge declined to charge fourth degree resisting arrest following the assertion of defendant's constitutional right to be prosecuted only in accordance with the indictment returned by the grand jury. State v. Macon, 57 N.J. 325, 337 (1971). Defendant has not established plain error.

For strategic reasons, a defendant may fail to request a lesser included or related offense charge or may object to a request by the prosecutor for a lesser included or related offense charge even when the record is replete with evidence to support the charge. A trial judge must construct a charge that gives some deference to strategic decisions by defense counsel. State v. Perry, 124 N.J. 128, 163 (1991). Strategic decisions by defense counsel, however, cannot override the public interest or defendant's right to a fair trial. State v. Garron, 177 N.J. 147, 180-81 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004). In Garron, the defendant was charged with aggravated sexual assault and he resisted the lesser included charges of sexual assault and criminal sexual contact. Id. at 179. For strategic reasons, the defendant hoped to avoid conviction of any charge if he successfully defended the most serious sexual assault charge. Ibid.

We hesitate to override a strategic decision by trial counsel to assert defendant's constitutional right to be tried only on charges included in a grand jury indictment, even when the record is replete with evidence to support a conviction of the fourth degree offense. Stated differently, we hesitate to find plain error when defendant asserted a constitutional right, the trial judge recognized and honored the asserted right, and the evidence fully supports conviction of the third degree offense.

We do not address the remainder of the issues presented by defendant as they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note, however, that the trial judge properly denied defendant's motion for a new trial. There was sufficient evidence to support the conviction of third degree resisting arrest. Furthermore, defendant's fear of police may have been relevant to fourth degree resisting arrest to explain why he fled, but had no relevance to the third degree offense for which he was convicted.


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