June 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALLEN D. MORRIS, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 05-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2012
Before Judges Grall and Alvarez.
Defendant Allen D. Morris, Jr., appeals from his conviction for disorderly persons resisting arrest, N.J.S.A. 2C:29-2(a)(1), entered by the Law Division on his appeal from the municipal court.*fn1 See R. 3:23. We affirm.
The incident leading to the charge occurred around 9:00 a.m. on May 18, 2010. Several state troopers assigned to the United States Marshall Service Fugitive Task Force stopped defendant's now-wife, Angela Morris, as she was driving to work and told her that they were looking for her fugitive brother, Adam Bard. She called defendant and informed him that the officers had an arrest warrant for Bard, who was living with the Morris family, and were present outside the home.
Defendant on two separate dates earlier that month had refused to cooperate with law enforcement officers in their efforts to arrest Bard. Defendant complained to the Professional Standards Division of the State Police about the officers' conduct during the prior attempts to execute the warrant.
On that particular morning, after Morris called her husband, the officers knocked repeatedly before defendant spoke to them through an open second-floor window. They asked him to open the door, explaining they had an arrest warrant for Bard. Defendant refused them admission and disappeared from view.
Officers forced the door open, and eventually Bard came downstairs and was taken into custody.
At the municipal trial, Detective Sergeant Mark Rowe testified that he called up to defendant that he too was under arrest and was to come downstairs or else a K-9 service dog would be brought into the home. Once the dog came into the house and began to bark, Rowe said, defendant "yelled down 'I'm coming downstairs.'" Defendant walked down the stairs, holding a cell phone to his ear, which he was instructed to drop. He was also told to turn around, put his hands on his head, and walk down the stairs backwards. Defendant complied with those instructions.
Once he reached the bottom of the stairs, as Detective Richard Henderson testified, defendant was ordered to drop his arms so he could be handcuffed. Henderson said defendant then placed his arms "in a locked position." Henderson was able to pull at one arm while a second detective freed defendant's other arm so he could be cuffed. Defendant, who is approximately six feet three inches in height, had "locked onto the step area . . . [a]lmost as though he was trying to push up off the step."
Defendant testified to the contrary. His version of the incident was that his arms were in the front of his body as he reached the bottom of the stairs only in order to protect himself from falling after the officers "slammed [him] to the steps." He claimed that one of the officers deliberately "bounc[ed]" on top of him, while Henderson had explained that an officer fell on top of defendant as he struggled.
Defendant also said that the officers twisted his arms into an unnatural position in the process of cuffing him, making it impossible for him to comply with their directives. He alleged that during the struggle he fractured his orbital lobe, eventually requiring surgery. On the day of his arrest, however, defendant complained of neither pain nor injury, and according to the trial testimony, the arrest photographs did not depict any injury.
At the close of the evidence, when the municipal court judge found defendant guilty of resisting, he said:
He . . . refused to place his hands behind his back. Three or four of the other officers stated as he was coming down the steps he grabbed onto the steps and would not put his hands behind his back voluntarily.
Now, that's what four or five of the officers stated. The testimony by [defendant] was that he completely complied with everything. I have trouble finding that to be the facts. I find the fact is that he did not comply, especially in view of his testimony, his statements a week before and a few days before that . . . "It's up to you to get Mr. Bard, it's not up to me. I'm not [going] to cooperate with you." It's a lot of uncooperativeness with him, and I find that it continued on that day . . . .
[W]hen he knew he was under arrest he did not fully comply. He pulled out his hands, he would not voluntarily put his hands behind [his] back so that the arrest could be effectuated. . . .
I find that there was an announcement. I find the officers were acting under the power of official authority, and I find that he was not anywhere near as cooperative or as compliant as his testimony would have us believe.
The municipal court judge imposed a $400 fine, $33 in court costs, a $50 VCCB penalty, and a $75 Safe Neighborhoods assessment.
On de novo review, the Law Division judge noted that a citizen does not have the right to resist arrest. He observed "that there was probably great hostility built up between the police and the defendant." Indicating he had made a "thorough review of the transcript," he found defendant "did not make his arms available to be handcuffed[,]" and was therefore guilty of resisting arrest. He imposed the same fines and penalties previously levied against defendant.
On appeal, defendant argues that the Law Division's findings were not supported by sufficient credible evidence and that he had the right to defend himself from excessive force:
I. THE LAW DIVISION DETERMINED WITHOUT SUFFICIENT CREDIBLE EVIDENCETHAT THE DEFENDANT DID NOT MAKE HIS HANDS READILY AVAILABLE TO BE HANDCUFFED
A. Mr. Morris's hands were readily available to be handcuffed when he placed his hands behind his head as he walked down the steps backwards
B. The Law Division ignored the fact that there was reasonable doubt as to whether it was possible for Mr. Morris to make his hands readily available
C. Mr. Morris had the right to use self-defense to protect himself from the excessive force being employed against him by the Task Force The function of the Law Division on an appeal from the municipal court is not to search the record for error, or to decide if there was sufficient credible evidence to support the municipal court conviction. Rather, it must decide the case anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the Law Division judge in a trial de novo is required to make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
Our function as a reviewing court is governed by the "substantial evidence" rule. State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). We must determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete[,]" and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a "close one . . . ." Ibid.; see also Avena, supra, 281 N.J. Super. at 333.
Additionally, we "defer to [the] trial court['s] credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Indeed, the rule of deference is more compelling where . . . 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 fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [Ibid.]
So measured, we are satisfied that the evidence in this case established defendant's guilt beyond a reasonable doubt.
The disorderly persons offense of resisting arrest occurs when a person "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1). It requires the arresting officer to act under the color of official authority and announce his intention to arrest. State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997). The officers' uncontraverted testimony established those elements.
Both judges agreed that defendant's contention that he did not resist and made his hands readily available, except as necessary for him to balance himself against the stairs, was not credible. Both concluded that by locking his arms beneath him, he physically and purposely attempted to avoid arrest.
Under the two-court rule, this fact-finding is entitled to great deference. See State v. Oliver, 320 N.J. Super. 405, 421 (App. Div. 1999), certif. denied, 161 N.J. 332 (1999). We see nothing in the record that would cause us to disturb it, or to disturb the legal conclusion which followed. It is dispositive on the issue of whether defendant's compliance with the officers' instructions constituted behavior that fell within the ambit of resisting arrest.
Neither the municipal court judge nor the Law Division judge found the officers to have used excessive force in the course of arresting defendant, a prerequisite for him to establish the defense of self-defense. State v. Simms, 369 N.J. Super. 466, 472-73 (App. Div. 2004). Again, applying the two-court rule, that conclusion is entitled to highly deferential review. We see nothing in the record which causes us to disturb it.
Because defendant's testimony was not found to be credible, and the officers' testimony was believed, we concur that defendant did indeed resist arrest by his failure to make his arms available for cuffing. His failure to do so was not excused by the use of any excessive force. Defendant was properly found guilty of the disorderly persons offense of resisting arrest.