September 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
B.J.P.,  Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-10-0360.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Sabatino.
Tried by a jury, defendant B.J.P. appeals his conviction of fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1b, and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2. Defendant argues that the jury instructions were flawed in two respects. For the reasons that follow, we affirm defendant's conviction of the obstruction offense, but reverse his conviction on the resisting arrest count and remand for a new trial on that charge.
Defendant was charged in a three-count indictment with fourth-degree manufacturing marijuana, N.J.S.A. 2C:35-5a(1) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count two); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1b (count three). Count one was dismissed because the marijuana that defendant apparently was growing at his residence had been seized by the police without a warrant or an exception to the warrant requirement, and was therefore suppressed.
The jury acquitted defendant of third-degree resisting arrest, but convicted him instead on count two of the lesser-included disorderly persons offense for resisting arrest, N.J.S.A. 2C:29-2. Defendant was found guilty on the third count for obstruction.
The trial judge sentenced defendant on count three to three years of probation, subject to sixty-five days in the county jail. The judge also imposed a concurrent two-day sentence in the county jail on count two for the disorderly persons offense.
The charges against defendant stemmed from events that occurred at his home on June 24, 2010. At approximately 12:45 p.m. that afternoon, State Trooper Brent Hawkswell was dispatched to the residence in response to a telephone report of domestic violence by defendant's sixteen-year-old daughter "Krista, " who was living there. Krista testified that she had told the police dispatcher that her father was "going psycho." It appears that defendant had become agitated after Krista had noticed a marijuana plant on the deck and smashed it.
Trooper Hawkswell joined another State Trooper, Anthony Valvano, before they arrived at defendant's home. Krista greeted the troopers at the end of the driveway. She told them that she had a "verbal argument" with her father, and that he had been growing marijuana plants on the property. Krista was leading the troopers towards the back of the house when her mother (defendant's wife) emerged. Trooper Valvano went to speak with the mother while Trooper Hawkswell continued to the back of the house with Krista.
At this point, according to Trooper Hawkswell, defendant "came out of the house yelling and using obscenities" like "[g]et the fuck of my property, get a search warrant. I'm going to sue [or shoot] all you fucking troopers." Due to defendant's missing teeth and severe lisp, both troopers were unsure if defendant was saying that he was going to "sue" or instead "shoot" them.
Krista testified that defendant was "irate" and wanted the troopers off his property. However, she maintained that "[h]e was completely still" and did not approach the troopers or "get into their face[s]."
Trooper Hawkswell acknowledged hearing defendant's demand that the troopers obtain a search warrant. Nevertheless, Trooper Hawkswell's "main concern" at that point "was the safety of [Krista] and everybody else there due to the domestic violence issue."
Trooper Valvano testified that when he saw defendant come out of the house, he was investigating "[b]oth the growing of the marijuana and the domestic violence call." Trooper Valvano stated that the domestic violence report was the main reason for their initial presence at defendant's house. He did not see nor was he specifically looking for a marijuana plant on the premises.
According to Trooper Hawkswell, defendant was "hostile, agitated, [and] aggressive, " as he emerged from his house. Defendant moved around a lot, and threw his arms in the air while screaming obscenities at the troopers. Both troopers tried to calm defendant down and explain to him that they were at his home in response to Krista's 9-1-1 call.
Trooper Hawkswell testified that defendant, still "agitated, upset, yelling, [and] cursing, " began to walk towards the end of the driveway with him. When defendant got "too close" to Trooper Hawkswell, the trooper pushed defendant "back with open hands to the chest area." Defendant slapped Trooper Hawkswell's arm down.
Trooper Hawkswell told defendant he was under arrest. According to Trooper Hawkswell, defendant then began "moving his shoulders, " "turning his body, " and "flailing his arms around." The trooper testified that he "struck [defendant] in the back to knock him down, " got control over defendant, and put his arm underneath the man's arm and up around his neck. Trooper Hawkswell testified that he repeatedly told defendant to "stop resisting."
Trooper Valvano similarly testified that defendant was "flailing the entire time" until the troopers were able to gain control of the defendant and handcuff him. Trooper Valvano stated that defendant was "still yelling and screaming" when he was placed in a patrol car.
In describing the situation in her own testimony, Krista testified that defendant was "verbally fighting" with the troopers when they "took [defendant] down." Krista stated that defendant "was thrown down onto the ground" and was "getting whacked with those black sticks" and only then did the troopers tell defendant that he was under arrest.
Trooper Hawkswell testified that defendant's agitated behavior interrupted their investigation into both the domestic violence call and the marijuana growing on the premises. He stated that the troopers had to stop their investigation in order to arrest defendant.
In this appeal, defendant solely raises the following points, both of which allege inadequacy in the jury charge:
THE JURY INSTRUCTION ON OBSTRUCTION OF JUSTICE WAS CONFUSING AND INCOMPLETE WHEN IT ADDRESSED THE ISSUE OF THE GRADING OF THE OFFENSE. (Not Raised Below)
THE JURY INSTRUCTION ON RESISTING SHOULD HAVE INCLUDED AN EXPLANATION OF DEFENDANT'S RIGHT TO USE FORCE TO RESIST THE UNLAWFUL USE OF FORCE DURING AN ARREST. (Not Raised Below)
Before addressing these arguments, we repeat well-settled principles that guide our appellate review of claims of flawed jury instructions.
An essential ingredient of a fair trial is that a jury receive adequate and understandable instruction. Correct instructions are "'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 325 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960).
Defense counsel did not object to the jury instructions at trial, and, as such, the standard of review is that of plain error. State v. Cofield, 127 N.J. 328, 341 (1992). "[P]lain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970)).
"[E]rroneous [jury] instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002). Moreover, jury charges providing "incorrect instruction of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J.Super. 272, 277 (App. Div. 1998) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)); see also State v. Fair, 45 N.J. 77, 93 (1965) (observing that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring a reversal").
That said, in evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those supposed defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged error must be "viewed in the totality of the entire charge, not in isolation." Chapland, supra, 187 N.J. at 289. Upon reviewing the charge as a whole, if the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J.Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Defendant's first contention is that the jury charge on obstruction of the administration of the law was flawed with respect to the legal significance of his exhortations to the troopers that they obtain a search warrant before further intruding on his property. In particular, defendant argues that the court failed to advise the jurors that they were prohibited from adversely treating his assertion of his constitutional rights of privacy when they considered how to "grade" his alleged acts of obstruction.
The grading analysis was important here under N.J.S.A. 2C:29-1b, because if the jury found that defendant had obstructed an investigation of a marijuana offense, then he would be guilty of a fourth-degree crime, but if, conversely, they found that defendant had obstructed an investigation into an act of domestic violence, then he would be guilty of only a disorderly persons offense. The troopers' testimony was not entirely consistent as to whether, at the time of defendant's obstructive acts, the primary focus of their investigation was the marijuana, the daughter's claim of domestic violence, or both.
Under the applicable statute,
[a] person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to perverts a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.
Furthermore, as to grading, obstruction "is a crime of the fourth degree if the actor obstructs the detection or investigation of a crime or the prosecution of a person for a crime, otherwise it is a disorderly persons offense." N.J.S.A. 2C:29-1b. As the growing of marijuana is considered a crime, while domestic violence without a prior restraining order is not, the main grading inquiries here are whether the troopers were investigating the marijuana or domestic violence matter, or both, and what exactly defendant supposedly obstructed.
We agree with defendant that he had a constitutionally protected right to request that the police secure a warrant before entering or searching his premises, unless, of course, an exception to the warrant requirement applies. Case law has repeatedly acknowledged the constitutional importance of the right of privacy in one's residence. See, e.g., Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013); State v. Vargas, 213 N.J. 301 (2013). Consequently, it should not be held against defendant that he invoked his constitutional rights when he was interacting with the troopers, provided that his actions did not otherwise interfere with their attempts to investigate the offenses that had been reported or observed.
The trial judge appropriately guided the jurors on these concepts near the outset of the charge on obstruction, which substantially tracked the model criminal charge. See Model Jury Charge (Criminal), "Obstructing Administration of Law or Other Governmental Function" (2000). The judge stated:
The first element is that the defendant committed an act of intimidation, force, violence, physical interference or obstacle.
Now, in this regard I just want to make one comment too. The mere fact that one requests that a police officer get a search warrant without more, is not a violation of this particular element. Just so you understand that.
The second element is that the act was committed for the purpose of preventing a public servant from lawfully performing an official function.
And the third element is that in committing the act the defendant did prevent a public servant from lawfully performing an official function
Defendant complains that the judge materially prejudiced him by failing to repeat the reference to his right to request a search warrant - despite the lack of any request by trial counsel - when instructing the jurors on the grading analysis a few moments later We reject this criticism The right to request a search warrant was adequately made clear to the jurors at the outset of the obstruction charge Although the judge unfortunately injected the qualifying phrase "of this particular [ie the first] element" that inadvertent comment did not materially dilute the court's reference to defendant's constitutional rights The judge was not obligated to repeat the search warrant point throughout the obstruction charge
Examining as we must the charge as a whole see Chapland supra 187 N.J. at 289 we discern no plain error Consequently defendant's conviction on the fourth-degree obstruction offense which is amply supported by the trial proofs is sustained
We turn to defendant's second point alleging that the court erred in not instructing the jury about his rights to engage in acts of self-protection, as a potential defense to the State's charge of resisting arrest in count three. We find this separate point does have merit.
As a general proposition, law enforcement officers are permitted to use force that is reasonably necessary when making an arrest. See N.J.S.A. 2C:3-7a. Reciprocally, our law also authorizes a civilian's use of force in self-protection. "[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a. Although a person may not use force to resist arrest simply because the arrest is unlawful, he or she may use force if the "peace officer employs unlawful force to effect such arrest." N.J.S.A. 2C:3-4b(1)(a).
A person resisting arrest may not use greater force than necessary to protect himself or herself. State v. Mulvihill, 57 N.J. 151, 157 (1970). Furthermore, if the individual "knows that if he desists from his physically defensive measures and submits to arrest the officer's unlawfully excessive force would cease, the arrestee must desist or lose his privilege of self-defense." Ibid.
Here the trial judge did not include these concepts in charging the jury on the resisting arrest count The State argues that it was unnecessary to do so given the troopers' testimony that defendant was behaving in an agitated and physically aggressive manner and needed to be subdued Defendant submits however that the testimony of his daughter Krista provided a reasonable basis for a jury to infer that at - least at some point in the encounter - the confrontation escalated in a fashion in which the troopers were deploying excessive force which defendant had a reasonable justification to resist
In particular Krista testified that although her father was irate and verbally argued with the troopers at no time did he approach the troopers or "get into their face[s]" According to her she witnessed her father get "thrown down" and hit with batons Furthermore Trooper Hawkswell acknowledged that after several attempts to calm defendant down he struck him in the back to knock him down and put his arm underneath defendant's arm and up around his neck in a hold before handcuffing him There also is evidence that the troopers struggled with defendant before getting a firm grip in order to handcuff him The reasonableness of these actions was an open question for the jurors as fact-finders
Given Krista's testimony and the legitimate credibility question here raised concerning whether the troopers used excessive force, the jury charge should have included an instruction on self-protection. We recognize that such a charge was not requested by defendant's trial attorney. Even so, the instruction was sufficiently indicated by a reasonable competing defense interpretation of the testimony, and its omission was plain error. A statutory defense such as self-protection must be charged, even if it is not specifically requested, if the evidence clearly indicates a rational basis for instructing it. State v. Walker, 203 N.J. 73, 86-87 (2010) (applying that principle in finding plain error in the omission of a charge on a statutory affirmative defense to felony murder); State v. Denofa, 187 N.J. 24, 41-42 (2006) (similarly requiring a charge on territorial jurisdiction if "reasonable doubt about the location of the crime is clearly indicated in the record").
Consequently, we reverse defendant's conviction of the disorderly persons offense on count two. We remand for a new trial on that specific count, should the State wish to prosecute it further.
Affirmed in part, reversed in part, and remanded for a new trial on count two. The trial court shall enter an amended judgment of conviction, vacating the conviction and sentence imposed on count two, within thirty days. We do not retain jurisdiction.