STATE OF NEW JERSEY v. JOSEPH BOUSA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2559-04T52559-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH BOUSA,

Defendant-Appellant.

_____________________________________________________

 

Argued May 30, 2006 - Decided June 19, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-03-307-I.

George T. Daggett argued the cause for ap-pellant (Daggett, Kraemer, Eliades, Vander-Wiele & Ursin, attorneys; Mr. Daggett, on the brief).

Bradley Seadury, Assistant Morris County Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Pros-ecutor, attorney; Joseph Connor, Jr., Assistant prosecutor, on the letter brief).

PER CURIAM

Defendant was charged with third-degree resisting arrest and third-degree aggravated assault as a result of his physical response to the uninvited entry into his home late one night of black-clad persons wearing masks who, defendant eventually learned, were police officers executing a "no-knock" search warrant. In this appeal, defendant contends that the trial judge's jury instructions were inadequate to deal with these peculiar circumstances. We agree, and reverse and remand for a new trial.

I

During the trial of this matter, defendant testified that he and his wife were watching television in their home in Lake Hopatcong at 11:30 p.m. on July 7, 2000, when defendant heard what he perceived to be a car driving rapidly up their 60-foot long driveway. Defendant got off his couch and walked to the front screen door, prepared to yell at one of his teenage sons for driving too fast in the driveway. According to defendant's testimony, he opened the screen door and found himself face-to-face with a person dressed all in black wearing a black mask that exposed only the person's eyes through slits in the mask. Defendant testified that he instinctively reached out and grabbed this masked person by the throat in an attempt to protect himself and his family.

A second person, similarly attired, attempted to enter through the front door. Defendant attempted to block his entry by extending his arm to the side of the door frame, but this second person pushed through and defendant was subdued with some additional struggle, the duration and extent of which was somewhat disputed. According to defendant, the entire struggle ended as quickly as it began, and that he ceased his physical response once he heard someone yell: "police, back off."

The State's witnesses -- Detectives Carmen Ferrante and Scott Smith of the Morris County Prosecutor's Office, and Detective James Caruso of the Jefferson Township Police Department -- testified that they and thirteen other law enforcement officers went to defendant's home to execute a "no-knock" search warrant. The officers acknowledged during their testimony that they were then all dressed in plain clothes or in black uniforms that did not reveal they were law enforcement officials except for a patch on their sleeves and their police badges hanging around their necks. Larger print on the front of their jackets, which would have more clearly signified that they were police officers, was covered by their bulletproof vests.

The vehicle that transported Detectives Ferrante, Smith and Caruso, and five others, to defendant's home was a large van which, according to Detective Ferrante, had "no police markings on it whatsoever." At the time the van arrived at defendant's home, its headlights were on, but neither the police overhead lights nor the siren had been activated. Once the officers exited this van, they approached defendant's home, as Detective Smith testified, "in a stealthy, tactical manner." There being no proof in the record that defendant anticipated a visit of a group of police officers to his home for any reason that night, the arrival of the officers at defendant's front door was presumably unexpected. The State appears not to have attempted to prove otherwise.

The procedure in executing a "no-knock" search warrant, according to Detective Smith, is for the officers, as the door is pushed or broken open, to rush in and yell: "police, search warrant." Although the testimony of the witnesses varied as to precisely what occurred, it would appear that at the moment entry was made defendant grabbed by the throat the first officer who came through the door. Defendant testified that after this initial physical encounter, the intruders identified themselves as police and that he immediately followed their orders. The officers, however, testified that defendant continued to resist and strike out after their identification as police officers was made known. Regardless of this dispute, it seems conceded that the event began and ended very quickly. Detective Scott Smith testified that the entire encounter took place over an extremely brief period of time, the duration of which he symbolized by snapping his fingers.

Defendant was indicted and charged with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). The matter was tried over the course of two days during which the jury heard the testimony of the three aforementioned police officers, and defendant and his wife. The jury convicted defendant of disorderly persons simple assault, N.J.S.A. 2C:12-1(a), and acquitted defendant of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). The jury also convicted defendant of third-degree resisting arrest; unlike the assault charge, the judge's instructions did not authorize the jury to convict defendant of a lesser included offense.

Defendant was sentenced on the third-degree resisting arrest conviction to a three-year probationary term, with the condition that he be incarcerated in the Morris County Correctional Facility for a period of 45 days; this 45-day period of incarceration was ordered to consist of time served (one day), with the remainder to be satisfied by defendant's participation in the Sheriff's Labor Assistance Program. A similar term was imposed on the disorderly persons assault conviction, which was ordered to run concurrently with the other term of probation. Mandatory fees and assessments were imposed.

II

Defendant appealed, raising the following arguments for our consideration:

I. THE STATE FAILED TO PROVE AT LEAST TWO OF THE ELEMENTS OF RESISTING ARREST.

II. THE COURT BELOW FAILED TO CHARGE THE JURY AS TO (A) A LESSER INCLUDED OFFENSE OF RESISTING ARREST AS A DISORDERLY PERSONS OFFENSE AND (B) JUSTIFICATION AS TO THE ASSAULT CHARGE.

We agree that, in these unusual circumstances, the jury instructions were inadequate in that they failed to advise the jury that it could convict defendant of a lesser included offense of the third-degree resisting arrest charge or that they could have concluded that defendant's actions were justified. We also agree that the judge mistakenly failed to instruct the jury that it could find that defendant was justified in engaging in the actions for which he was charged with assaulting a police officer.

A

N.J.S.A. 2C:29-2, which defines what constitutes resisting arrest, does not comfortably fit the circumstances at hand. The statute initially commands that, except as provided elsewhere in the statute, "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." N.J.S.A. 2C:29-2(a)(1). It then states that, except as otherwise indicated, "a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). The statute thereafter indicates that it is an offense of the third-degree if a person does that which is proscribed in subsections (1) or (2), and "if the person: (a) [u]ses or threatens to use physical force or violence against the law enforcement officer or another; or (b) [u]ses any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2(a)(3).

Here, the judge instructed the jury as to the elements of third-degree resisting arrest, but refused defendant's request that he instruct the jury that it could consider whether defendant's actions only met the requirements of disorderly persons resisting arrest, as defined by N.J.S.A. 2C:29-2(a)(1). The judge also declined to instruct the jury that it could conclude, depending upon its findings of fact, that defendant's actions were justified.

We reverse and remand for a new trial on the resisting arrest charge because the jury instructions: (1) did not adequately describe for the jurors the fact that they could find that the initial physical encounter between defendant and the officers did not constitute resisting arrest in any form because the officers did not enter defendant's home for the purpose of effecting an arrest; (2) did not instruct the jurors that they could find defendant guilty of the lesser included offense of disorderly persons resisting arrest; and (3) did not instruct the jurors that, depending upon their factual findings, they could conclude that defendant was justified in physically responding to the officers' uninvited entry into his home.

First, because it is conceded that the officers did not enter defendant's home for the purpose of making an arrest, defendant could not have been convicted of violating N.J.S.A. 2C:29-2(a)(3) with regard to his initial physical contact with the officers. N.J.S.A. 2C:29-2(a)(3) -- and, for that matter, the lesser included offense set forth in N.J.S.A. 2C:29-2(a)(1) -- do not criminalize an actor's use of force when used to interfere with the execution of a search warrant. Although the judge accurately expressed in his instructions the elements of the offense of third-degree resisting arrest as delineated in the statute, the subtle distinction between the initial physical encounter, when the officers were not attempting to make an arrest, and the later alleged conduct of defendant -- much disputed by the parties -- as to whether defendant continued his physical response once the officers attempted to arrest him, was not clearly described in the judge's instructions. This particular case required that the judge explain this fine distinction and explain how it would apply depending on what factual findings the jury might make. That is, the judge should have thoroughly explained that if the jury were to credit the defense version -- i.e., that defendant engaged in no further act of resistance once he understood that the intruders were police officers -- then the jury would be required to acquit defendant of resisting arrest in any of its forms. The fact that the jury appears to have credited at least some parts of defendant's testimony by acquitting him of third-degree aggravated assault, see n.3, infra, demonstrates that the failure of the judge to emphasize the significance of this factual dispute, and its relationship to what the jury could or could not lawfully convict defendant for, could have led to an unjust result and requires our mandating of a new trial.

Second, the State recognizes the inapplicability of this statute to defendant's alleged initial actions, but asserts that as things changed during this very brief and chaotic circumstance, the police had the right to arrest defendant and were actually attempting to arrest defendant, which he resisted through force. There is some testimony to the effect that defendant was informed during the later stage of this brief encounter that he was being placed under arrest, and we acknowledge that if the jury accepted the State's version it could have concluded that, as the incident progressed, defendant engaged in the conduct proscribed by N.J.S.A. 2C:29-2(a)(3). That is, according to the State's version, after initially entering defendant's home and following defendant's immediate physical reaction to their entry, the officers made it clear that they were police officers, and, as defendant allegedly continued to respond with force, he acted in a way that fulfilled all the elements of N.J.S.A. 2C:29-2(a)(3). We agree that if the jury believed that that is what occurred it was entitled to convict defendant of third-degree resisting arrest.

But, it is also true, that if the jury believed defendant's version of what occurred, it could have concluded that defendant did not resist or at least did not resist with force and, thus, could have only committed the offense described in N.J.S.A. 2C:29-2(a)(1), a disorderly persons offense. The resisting arrest statute is based upon the fundamental premise that "[a] private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties." State v. Lawrence, 142 N.J. Super. 208, 214 (App. Div. 1976) (citing State v. Mulvihill, 57 N.J. 151, 155 (1970); State v. Koonce, 89 N.J. Super. 169, 184 (App. Div. 1965)). Defendant argued at trial that he did not know or have reason to believe that the persons entering his home that night were police officers. He testified that he acted as he did because he was "scared" and because: "I didn't know if I was being robbed, I didn't know what to think, I just like reached out on instinct, . . . and grabbed him." Indeed, it is fair to conclude from the evidence presented, and the results of the jury's determination of the aggravated assault charge, that the jury believed much of defendant's version and believed that defendant did not realize that it was the police who burst through his doorway instead of an unauthorized intruder. Accordingly, we agree with defendant that the jury should have been given the opportunity to consider whether defendant committed only the disorderly persons offense of resisting arrest set forth in N.J.S.A. 2C:29-2(a)(1). See, e.g., State v. Simms, 369 N.J. Super. 466, 471 (App. Div. 2004).

Third, we also conclude that defendant was entitled to have the jury instructed on his claim of justification and agree that the judge's decision not to so instruct the jury was mistaken. N.J.S.A. 2C:3-4(a) states that "the 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:3-4(b) sets forth the limitations on the use of force justified in N.J.S.A. 2C:3-4(a) by indicating that the "use of force is not justified under this section . . . [t]o resist an arrest which the actor knows is being made by a peace officer in the performance of his duties." N.J.S.A. 2C:3-4(b)(1)(a). Again, the question of justification turns on whether defendant knew or had reason to believe that the intruders were police officers. That question was very much in dispute and, thus, the jurors should have been instructed that if they believed the defense version of what occurred, then they would be permitted to find that defendant was justified in physically engaging those who had entered his home.

B

We also agree with defendant, for the reasons discussed immediately above, that the jury should have been instructed as to the defense of justification and its potential application to the assault charge. To reiterate, defendant asserted at trial that he believed that lawbreakers were entering his home at the time he physically reacted. There is no dispute that the officers were dressed in a manner that did not make it obvious to someone in defendant's position that they were law enforcement officials. In addition, even assuming the truth of the State's version as to what occurred, defendant had no reason to know or believe that these intruders were police officers until the physical encounter had actually begun. There was simply no interval between the officers' appearance at the door and defendant's reaction for contemplation of the circumstances. Again, as Detective Smith described it, the entire episode began and ended in the time it takes to snap one's fingers. The jury could have concluded from the officers' dress and their unexpected appearance in his home that they were not police officers and, thus, the jury could have determined that defendant's brief physical response was justified. Although the trial judge charged the jury on the elements of self-defense, we conclude that not only should that charge have been more closely woven to the factual contentions of the parties, but that the jury should have also been instructed that it was permitted to find that defendant's actions were justified.

The judgment of conviction is reversed and the matter remanded for a new trial.

 

The other eight officers on this team followed in another vehicle.

The term imposed on the disorderly persons assault conviction was identical to that imposed on the resisting arrest conviction except that the period of incarceration in the Morris County Correctional Facility required in this term was 30 days, with all except the one day credited for time served being satisfied by defendant's participation in the Sheriff's Labor Assistance Program.

As indicated, defendant was charged with third-degree aggravated assault. The State argued to the jury that defendant should be found guilty of aggravated assault because he committed a simple assault which, because it was committed against a police officer, was transmuted into an aggravated assault. N.J.S.A. 2C:12-1(b)(5). The jury acquitted defendant of aggravated assault, but found him guilty of committing a simple assault, thus demonstrating that the jury believed that when defendant used force he did not know or understand that the person against whom he was using force was a law enforcement officer. This finding illuminates the manner in which the jury viewed the resisting arrest charge and strongly suggests that, if given the opportunity, the jury may very well have convicted defendant only of disorderly persons resisting arrest.

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A-2559-04T5

June 19, 2006