On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 11-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Maven.
After a trial de novo in the Law Division, defendant Werner
M. Plunkett appeals from his conviction for resisting arrest in violation of N.J.S.A. 2C:29-2a(1). We affirm.
Officer Tommy Picou of the Cinnaminson Township Police Department was working on a special detail at the St. Charles Carnival, when he received a report of a man taking pictures of children in a curious manner. The officer observed defendant with a camera around his neck, taking pictures without lifting the camera to eye level. The officer approached defendant and asked him for identification. While presenting his driver's license and press pass, defendant explained that he was a photographer and taking pictures in an unusual fashion is a type of photography. The conversation between Picou and defendant was calm and orderly.
Two additional officers, Sergeant Ernest McGill and Officer William Obuchowski, responded to the scene and took over the contact with defendant. During their questioning, defendant tried to walk away from the officers, but, as McGill and Obuchowski grabbed his arms, defendant pulled away. Picou wrestled defendant to the ground, pinning his hands and camera under his body. As the police pulled defendant's arms behind his back to handcuff him, defendant suffered a dislocated shoulder and facial injuries. Defendant was charged with violating N.J.S.A. 2C:29-2a(1) (resisting arrest) and N.J.S.A 2C:33-2a(1)(disorderly conduct).
At the municipal court trial, Picou and McGill testified for the State, and defendant testified on his own behalf. Picou and McGill both stated that while defendant was speaking with McGill and Obuchowski, his voice became loud and agitated proclaiming that the police were harassing him, he was not a pedophile, and there was no reason for the police to stop him. Defendant began yelling obscenities at them, and according to McGill, defendant began flailing his arms, almost hitting him. At that point defendant was told by McGill that if he did not calm down, he would be placed under arrest for disorderly conduct and that he could not leave until they had finished with him. McGill further told defendant that he was not under arrest but was being detained until they got his information, then he would be released. According to Picou, Obuchowski told defendant he was under arrest right before Picou took defendant to the ground. Responding to the defense hearsay objection concerning Obuchowski's statement, the State argued that the statement was admissible under the state of mind exception to explain why Picou acted to take defendant to the ground. The judge admitted the statement.*fn1
Defendant testified that he was attending the carnival with his son and that he, as a newspaper photographer, takes pictures for the church and community. Because on other occasions he had been asked for his credentials, he claimed to be accustomed to responding to police officers. Defendant asserted that although initial contact with Picou was calm, when the two additional officers became involved, it was like a "dog fight." Both officers were aggressive towards him, but he claimed he remained calm during the entire interaction, and never swore or used obscenities. He further denied that he flailed his arms, heard the police tell him he was under arrest, pulled away from the officers or resisted arrest while pinned under the officer on the ground.
At the conclusion of the testimony, defense challenged the credibility of the State's witnesses. Defendant argued that the State's witnesses misrepresented the obscenity allegedly used by defendant. On direct examination, McGill testified that defendant called the officers "F-ing A-holes"; however, he acknowledged on cross-examination that his report mentioned only that defendant called them "a-holes" and that his testimony was wrong. Picou testified using the same wrong statement. Counsel argued that this material misstatement tainted the officers' credibility rendering their entire testimony unreliable. Over the argument of counsel, the municipal court judge found that the officers were credible and that the discrepancy between McGill's testimony and his report did not detract from his credibility.
Because of the unlikelihood of the events as described by defendant, the judge found that defendant was not credible. The judge focused on defendant's testimony and demeanor as critical indicia of credibility. Specifically, the judge noted that defendant did not deny that McGill warned him to calm down or risk being arrested, nor did defendant deny walking away from McGill. The judge ascribed no credibility to defendant's claim that he did not become agitated, even though he testified that it was like a "dog fight" and the officers were acting aggressively towards him. Lastly, the judge found defendant not credible since defendant had a clear recollection of minor matters, such as the position of his wallet, but could not remember being handcuffed. Upon his observation of defendant while the officers were testifying, the judge found that:
Mr. Plunkett was shaking his head in a negative [manner] in an attempt, in my mind, to suggest to me that their testimony was not accurate. This attempt to sell me with a negative shaking of the head was unsuccessful and detracts from Mr. Plunkett's credibility.
The municipal court judge ultimately found defendant not guilty of disorderly conduct, but found him ...