August 31, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DIERICA WOODS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 50-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2010
Before Judges Grall and LeWinn.
Defendant appeals from the order of the Law Division entered on September 9, 2008, on de novo review, finding her guilty of resisting arrest in violation of N.J.S.A. 2C:29-2(a)(1). We affirm.
On November 1, 2005, Lindenwold Police Officer Dan LaFontaine, while on duty, observed defendant's vehicle make a left turn without stopping at a stop sign. LaFontaine "pulled behind her in [his] patrol vehicle and turned [his] lights on." Defendant pulled her car into a parking lot with LaFontaine behind her. He asked defendant for her credentials and "[a]t that time she started arguing with [him], saying that there was no stop sign . . . ." The officer testified that "[t]he whole time when she gave [him] her credentials she was screaming and yelling at [him]."
The officer returned to his patrol vehicle and started writing out summonses. Defendant continued "screaming at [him] stating that [he] only pulled her over because . . . [he] recognized her car from a previous incident . . . ." As the officer handed the summonses to defendant, "she stated she wanted to speak to a supervisor." Officer LaFontaine called Sergeant Eutsler, who arrived on the scene shortly thereafter. Defendant was still "screaming and yelling" when "Sergeant Eutsler went over and talked to her."
Eutsler testified that he spoke to defendant upon arriving at the scene and "tried to explain to her that she had to tell [him] what had happened." Defendant "started yelling, arguing," saying that she wanted to "sign a complaint." Eutsler testified that defendant would not calm down, she was "loud, just obnoxious and yelling the whole time. She finally said, I didn't go through the stop sign." Eutsler told her, "if this is all about a motor vehicle stop, plead not guilty, go to court, explain it in front of the judge and debate it there."
Defendant kept "demanding" that she wanted to sign a complaint, but she "wouldn't give any details as to anything that happened," and Eutsler tried to explain to her what was happening. When defendant would not calm down, Eutsler testified that he told her, "I strongly suggest you calm down or I'm going to end up locking you up." Defendant "still wouldn't calm down." Eutsler again asked her to calm down, and defendant started to walk away.
Defendant entered her car and continued "yelling from inside the car that . . . she doesn't care, she can do whatever she wants at this point." Eutsler said, "that's it, enough." As he walked towards her car, defendant put the car into reverse. LaFontaine's police vehicle was parked immediately behind defendant's car, and Eutsler opened the door of her car, "reach[ed] across [and] put it into park." He again told defendant to get out of the car. When she refused, he had to "physically remove her from the car." Defendant then refused to get into the police car. Eutsler "ask[ed] her several times to get in the police car. As [he went] to put her in the police car she actually got down onto the seat, s[a]t back and kick[ed] [him] in the chest."
Defendant testified that LaFontaine pulled his vehicle behind her but "never flashed anything, no sirens, no nothing." LaFontaine told defendant that she had run a stop sign, and she denied it. She stated that, when asked, she went to her car and retrieved her credentials and gave them to LaFontaine who was sitting in his police vehicle. Defendant informed LaFontaine that she wanted another officer to be called to the scene because she felt "as though he was harassing [her], because when [she] gave him [her] information [she] recognized him as being the office[r] who [she] had a prior incident with several months back . . . ."
When LaFontaine tried to give her the summonses, defendant stated that she did not want to speak to him and "had nothing to say to him and that he could put the tickets inside the car[,]" which he did. Defendant stated that "[n]o incident happened" in the interval until Eutsler arrived.
Defendant testified that she was "cooperative" while waiting for Eutsler to arrive. She denied "disput[ing] the tickets with him[.]" Defendant described her interaction as "just like two people w[ere] having a conversation."
Defendant spoke to Eutsler about her desire to file a complaint and Eutsler told her he could "arrest [her] right here, right now for being disorderly." Defendant asked Eutsler "how was [she] being disorderly." Eutsler told her that she "could be arrested for the patrons [in the nearby store] wondering what's going on. You're creating a scene by us just being here and we can arrest you for being disorderly just for that reason."
Defendant got into her car and told Eutsler that she was "going to the station to sign a complaint against him and the other officer, and at that point that is when . . . Eutsler tried to rip [her] out of [her] car." Defendant acknowledged that she put her car in reverse, but said it was her intention to go immediately to the police station and sign a complaint against Eutsler.
Defendant testified that Eutsler "never stated [she] was under arrest. He said [she] bought [her]self a free ride." After Eutsler pulled her from her car, defendant stated that she was "in fear, [and] . . . didn't know what they were going to do." She stated that Eutsler "was in a rage . . . and [she] was scared for [her] life . . . ." Defendant acknowledged that Eutsler at some point arrested her and put her in handcuffs and placed her in a police vehicle.
After reviewing the evidence, the judge found defendant guilty of careless driving, N.J.S.A. 39:4-97; simple assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a); and resisting arrest, N.J.S.A. 2C:29-2(a)(1). He found her not guilty of causing public inconvenience, N.J.S.A. 2C:33-2(a)(1). With respect to the simple assault charge, the judge found that Eutsler "was right on top of her and she wasn't kicking the car, she went to kick him . . . . He tried to defuse the situation several times and . . . defendant refused."
As to the resisting arrest charge, the judge found that defendant "prevent[ed] a law enforcement officer from effectuating a lawful arrest specifically by refusing to exit her vehicle by holding onto the steering wheel if [sic] she was advised that she was under arrest several times." The judge noted that "defendant herself testified that she put her feet between the car door and the seat so . . . they couldn't shut the door" of the police vehicle. The judge found "[t]hat in itself is resisting arrest."
The judge sentenced defendant to two concurrent thirty-day jail terms and the appropriate fines, penalties and costs.
A trial de novo was held in the Law Division on August 25, 2006, at which defendant was found guilty of resisting arrest, but not guilty of the simple assault charge. Defendant appealed and on May 20, 2008, we remanded this matter to the Law Division for a new trial de novo because defendant had not received notice of the August 25 hearing.
A second de novo review was held before another judge on September 5, 2008. Defendant was again found not guilty of simple assault but guilty of resisting arrest.*fn1 The judge made the following findings:
I'm not bound by the findings of the [c]court below. I am to give due deference to those findings. Basically from my analysis I think this lady turned a very mundane situation into a nightmare because she became totally out of control in the situation. She ends up being charged with not only the careless driving, and resisting arrest, and basically I don't find that she is credible at all. I think the officers were truthful in saying that she was yelling and screaming and was totally uncooperative. I have already indicated that by her own testimony she was uncooperative. I have already commented on the fact that somebody who is handcuffed and being placed in the back of a police car doesn't understand that they're under arrest. I find that argument totally ludicrous and I don't buy it for a second.
So when analyzing everything carefully, there isn't any reasonable doubt. I have already weighed in on the other matters, so I'm basically . . . upholding the decision of the [c]court below. In that regard, the lady was a raft of responsibility [sic], from what I understand.
On appeal, defendant presents one contention for our consideration, namely that she was "fearful for her life and is not guilty of resisting arrest." We find no merit to this claim.
N.J.S.A. 2C:29-2(a)(1) states that "a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." Moreover, "[i]t is not a defense to a prosecution . . . that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance." N.J.S.A. 2C:29-2.
The record clearly establishes that defendant physically resisted Sergeant Eutsler's efforts to place her in the police vehicle after arresting her for creating a disturbance. She attempted to prevent him from closing the car door and kicked him in the chest. On this record, we are satisfied that the State proved beyond a reasonable doubt "that it was defendant's conscious object to prevent h[er] arrest." State v. Ambroselli, 356 N.J. Super. 377, 385 (App. Div. 2003).
Defendant contends that she did not hear Eutsler tell her she was under arrest because her car engine was on at the time. However, even assuming the factfinder accepted this assertion as true, "[t]he failure to announce that defendant was under arrest would only be one factor to be considered in the overall sequence of events leading to the arrest." State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). Clearly, defendant knew she was under arrest when Eutsler handcuffed her and attempted to put her in the patrol car. Moreover, even if defendant "feared for her life" as she testified, she still had no right to resist arrest so long as "the arresting officers were clearly acting under color of their official authority in arresting [her]." State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997).
In any event, both judges below found the police officers' testimony credible and defendant's version incredible. We defer to those credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Where, as here, "[o]ur study of the record . . . convinces us that the trial courts carefully scrutinized the testimony and the record before making factual determinations[,]" it would be "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of the first instance." Id. at 471.
Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [Id. at 474.]
We find no such showing in this case.