On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-3334.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Roe.
In a non-jury trial, defendant, Earl Whaley, was convicted of third degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5)(1); fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a); and third degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Defendant appeals his conviction and the denial of his motion for a new trial. We affirm.
On August 25, 2008, Collingswood Police Officer Brian Eidmann was patrolling the Borough of Woodlynne around 1:00 a.m. when he observed "[l]oud noise [and] beer bottles being thrown" on the screened in porch of a row home later identified as defendant's residence. Eidmann circled the block once or twice hoping the noisemakers would notice him and quiet down. When no change in the noise level occurred, he decided to approach the porch.
Upon approaching the porch, Eidmann saw four or five people and told them "collectively" to quiet down because he had heard complaints about noise in the area. He admitted at trial that while there had not actually been complaints, in his experience people are more likely to stop being noisy if they feel that they are bothering their neighbors than if they are ordered to cease by an officer.
According to Eidmann, the group on the porch "continue[d] doing what they were" doing and defendant "started to get aggravated and started his verbal abuse in regards to using profanity." Specifically, Eidmann stated that defendant told him to "go about [his] fucking business" three times, to which Eidmann reiterated his statement to keep it down and began to walk back to his patrol car. He continued to curse at Eidmann, who determined that it was necessary to arrest defendant for disorderly conduct.
Per standard protocol, Eidmann informed Central Communications that he would be making an arrest. He testified he was "[a]bsolutely" within earshot of defendant when he made that communication. He "calmly opened up the door" to the porch, moved behind defendant's chair and advised him that he would be placing him under arrest. Defendant continued to play cards, ignoring Eidmann's statement that he was under arrest so Eidmann pulled the chair out from under him to "execute the necessary amount of force to get his attention." Defendant did not fall to the ground but instead "stood up and took like an antagonistic stance."
When Eidmann asked defendant to turn around, defendant complied but when Eidmann grabbed defendant's right hand, defendant turned around and pushed Eidmann twice. Eidmann struck defendant "in the face with a closed fist[,]" at which point defendant "began flailing" and struck Eidmann in "the back of the head with a closed fist" multiple times. Defendant pushed Eidmann into the screen surrounding the porch, which tore. Eidmann regained his balance, and the two continued to struggle together until they fell down the stairs. Eidmann testified that defendant continued to strike and kick him while he was on the ground before fleeing the area. Eidmann tried to chase him but fell to the ground and blacked out. The officer was treated for lacerations to his right elbow and transported to Lady of Lourdes Hospital.
Eidmann stated that he was wearing an audio transmitter during the altercation. This audiotape was played for the court. On cross-examination, Eidmann admitted that the tape reflected that he did not immediately advise defendant he would be placed under arrest, but instead asked defendant to stand up twice before pulling the chair away and only then told defendant he was under arrest. At that point, defendant held out his hands and told Eidmann to handcuff him. Eidmann also admitted that though he testified before the grand jury that defendant hit him first, he hit defendant after defendant pushed him.
Frank A. Bethea, who was present on the porch that night, testified of his recollection of the events. He stated that Eidmann came up on the porch and "a few words went back and forth" before Eidmann entered through the door and "snatched the chair from under" defendant. He recalled Eidmann asking them to keep the noise level down and hearing defendant tell Eidmann to get off the porch.
Defendant testified on his own behalf. His version of the night differed substantially from Eidmann's. Defendant stated he was still on the sidewalk when Eidmann left the car and that he told Eidmann that he had "better not come up" to the porch. He denied there was any laughing, joking or "chitchat" going on between them. Defendant maintained that after Eidmann came onto the porch and ordered him to stand up, he leaned forward and began to comply when Eidmann grabbed the chair out from under him. Defendant denied pushing Eidmann but admitted that he held out his hands and invited Eidmann to handcuff him. He stated Eidmann grabbed him by the neck and tried to throw him toward the table. Defendant then told Eidmann to get his hands off of him and refused to turn his back on Eidmann because he wanted to be handcuffed in the front.
At that point, defendant stated Eidmann punched him in the face. Defendant conceded he "might have swung back with his right hand." They began to grapple with each other. At trial, defendant denied he ever heard Eidmann tell him he was under arrest, though he admitted hearing it on the tape. Defendant also stated that he and Eidmann fell down the porch stairs together, but denied that it was his intention to resist being arrested. He also denied kicking or punching Eidmann while he was on the ground. Defendant stated that after running away he returned to the police station roughly nineteen hours later after seeking legal advice because he didn't want to be arrested, he wanted to take care of some things before he turned himself in and he didn't feel safe.
Defendant waived his right to a jury trial and the case proceeded as a three day bench trial. In a written opinion issued June 22, 2009, the court found defendant guilty of one count of aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5)(a), and two counts of resisting arrest, contrary to N.J.S.A. 2C:29:2(a).
On August 21, 2009 the court denied defendant's motion for a new trial and sentenced defendant on each count to a term of one year non-custodial probation, to run concurrently. The court also imposed appropriate fines and penalties and ordered defendant to forfeit his employment at the Camden County Jail.
On appeal, defendant presents the following arguments for our consideration:
THE POLICE OFFICER'S CONDUCT DOES NOT SATISFY THE STANDARD OF "OBJECTIVE GOOD FAITH"
THE ABSENCE OF REASON TO DETAIN AND TO ENTER THE PORCH CLEARLY VIOLATED THE FOURTH AMENDMENT, AN ADDITIONAL REASON FOR ...