State v. BlantonState v. Blanton
These are consolidated appeals by defendant Elijah Blanton, Sr. (“Elijah“) and his son, John Blanton (“John“). Elijah was convicted of assault and battery upon a police officer and John of atrocious assault and battery and resisting arrest. The events giving rise to the charges resulting in these convictions occurred in the course of a disturbance on
The police were originally dispatched to the playground after Elijah‘s wife called to report an argument between another of her sons and a third person she thought to be in possеssion of a gun. No gun was found. However, Elijah was carrying on in a loud manner, yelling at and chasing children and arguing with the purported possessor of the gun. There was other testimony that Elijah was simply trying to restore peace to the area. The police soon withdrew from the scene.
Within a short time the police returned to the scene on the order of a superior officer to arrest Elijah if he was found to be causing trouble. The return of the police developed into a melee either witnessed or participated in by a large number of people, mostly juveniles. According to the State‘s evidence, Officers Wettermark and Brown accosted Elijah and informed him he was under arrest. He pulled away from them, and sticks and other objects were thrown at the officers, Officer Wettermark being struck by some of them. Officer Brown embraced Elijah in a full nelson and in return was bitten by Elijah on his arm. This action was the basis of the charge against Elijah of assault and battery against a police officer.
The charges against John arose out of the attempt of Officer DeFillipo to go to the aid of the officers seeking to arrest Elijah. DeFillipo testified that as he approached the officers and Elijah he noticed an individual wearing an orange tee shirt to his right at a distance of between six and ten feet and immediately thereafter sustained a blow to the top of his head. The man in the orange shirt was John. DeFillipo at once turned around and confronted John, the latter looking directly at him, about three feet away. John had a stick or pipe in his hand of a cylindrical shape and about 2 1/2 feet long. There were no other people in the immediate area. John turned and ran toward his apartment with DeFillipo and Officer Richards in pursuit, the former yelling, “I want
John‘s testimonial version of the events was that he wаs in the playground practicing for a state championship relay meet to be held the next day and that he was in possession of a relay baton about 12 inches long. When the police came upon the scene they began spraying mace. John saw his father surrounded by police officers and others and asked the officers to let his father alone. One of the officers аngrily reached for his gun and John ran away in fear, alleging, before an objection by the State was sustained, that he recalled a former local incident involving the shooting of a juvenile by police. He did not strike anyone but remembered bumping into someone while running away. No one told him he was under arrest at any time. He was assaulted by the police after he emerged from his home.
I — Elijah‘s Conviction
Elijah сomplains of the exclusion by the trial judge of Officer May‘s hospital record concerning the bruise allegedly inflicted upon him by John, offered by Elijah to impair May‘s credibility in respect of May‘s testimony concerning the bite Elijah inflicted on Officer Brown. We find no prejudicial error. In the first place, the hospital record was not sufficiently authenticated. See Mahoney v. Minsky, 39 N.J. 208, 218 (1963); Webber v. McCormick, 63 N.J. Super. 409, 416 (App. Div. 1960). Second, the exclusion was hаrmless as May was confronted with the record and
Elijah complains of that portion of the prоsecutor‘s summation which informed the jurors that if they found a guilty verdict on all counts, they would “fulfill [their] oath, discharge [their] function as jurors.” However, the trial judge subsequently called this incident to the attention of the jurors, implied that the prosecutor‘s remark may have been “a slip of the tongue,” and informed them that their duty was to make their own determination as to the guilt of the defendants and that guilt must be found beyond a reasonable doubt. We agree with defendant that the prosecutor‘s comment was inappropriate but in the light of the corrective charge we find no prejudicial error.
Elijah argues that his motions for acquittal at the end of the State‘s case and at the end of the trial should have been granted. We conclude to the contrary. There was ample evidence upon the basis of which the jury, if they chose to credit the testimony offered on behalf of the State, could have found Elijah guilty of assault and battery on Officer Brown beyond a reasonable doubt. State v. Reyes, 50 N.J. 454 (1967).
Elijah was sentenced to nine months in the Monmouth County Correctional Institution. He asserts that this sentence was harsher than was warranted by the circumstances. He specifically complains of references in the presentence report to his addiction to alcohol. However, Elijah‘s counsel made frequent and strong objection to the references to alcoholism at the time of sentencing, and there is no indication from the sentencing judge‘s remarks that he gave any consideration to defendant‘s involvement with alcohol. The judge alluded to the immense crowd in the arеa at the time
We do not find that the references to alcoholism in the presentence report had any effect on the sentence; nor can we find the sentence excessive in the light of all the attendant circumstances.
II — John‘s Conviction
John contends that the trial judge erred in refusing to grant his motions for acquittal at the end of the State‘s case and at the end of the entire case.
It is true that therе is no direct eyewitness testimony of John having struck DeFillipo. But the circumstantial evidence is substantial. On the basis of the State‘s proofs no one but John was in DeFillipo‘s immediate area at the time he felt the blow; he saw John looking at him only three feet away when he quickly turned after being struck, and he saw John holding a stick or pipe in his hand. John‘s immediate flight thereafter, although sought to be explainеd by John on a basis consistent with innocence of the assault on DeFillipo, could properly have been considered by the jury as corroborative of the other circumstantial evidence pointing to John as the assaulting agent. This included the fact that, as noted, there was no other person in the immediate area of the two except the officers who were dealing with Elijah at that moment. We are constrained to hold that there was sufficient evidence to justify John‘s conviction of atrocious assault and battery on DeFillipo.
Defendant argues that the trial judge‘s instructions to the jury with respect to the charge of resisting arrest were defective
Our examination of the relevant authorities satisfies us that there was no error in the charge even if the jurors could understand therefrom that flight from a police officer with knowledge by the fugitive that the officer was attempting to arrest him and with the purpose of avoiding or frustrating that arrest, constituted guilt of the common-law offense of resisting arrest.
Resisting arrest is an integral part of the common-law сrime of “obstruction of or resistance to a public officer in the performance of his duties.” 3 Wharton‘s Criminal Law and Procedure (1957) § 1283 at 632; The New Jersey Penal Code, vol. II: Commentary (1971), dealing with § 2C:29-2 at 282. By the majority rule the use of actual force is not always necessary to constitute the offense so long as there is some overt act of obstruction. Wharton, op. cit., supra, § 1284 at 633. See, for example, State v. Hollman, 232 S.C. 489, 102 S.E.2d 873, 879 (Sup. Ct. 1958). In many jurisdictions this crime has been codified, and the statutes have generally been construed as permitting a determination of guilt without a finding of the use of force or violence against the officer. See Annotation 44 A.L.R.3d 1018, 1022-1023 (1972). The California cases hold that flight from an officer seeking to arrest is sufficient to constitute evidence of a violation of a statute punishing a person who willfully resists, delays or obstructs a public officer in the discharge of any duty of his office. People v. Wilson, 224 Cal. App.2d 738, 743-744, 37 Cal. Rptr. 42 (D. Ct. App. 1964); and see People v. Brooks, 131 Cal. 311, 63 P. 464, 466 (Sup. Ct. 1901).
In formulating § 2C:29-2 of The New Jersey Penal Code (enacted as L. 1978, c. 95,
The circumstances given in evidence clearly pеrmitted the jury to find that John knew the police were seeking to arrest him. Officer DeFillipo testified that while pursuing John he yelled out, “I want him. He hit me.” John admitted,
Defendant‘s argument concerning the necessity of use of physical force by the arrestee upon the officer is based upon language contained in such opinions as State v. Montague, 101 N.J. Super. 483 (App. Div. 1968), mod. 55 N.J. 387 (1970); State v. Bell, 102 N.J. Super. 70 (App. Div. 1968), certif. den. 52 N.J. 485 (1968), and State v. Owens, 102 N.J. Super. 187 (App. Div. 1968), mod. 54 N.J. 153 (1963). None of these cases, properly analyzed, rejects the concept that the crime of resisting arrest can be committed short of use by the accused of physical force or violence on the arresting officer. The Montague and Bell cases were prosecutions for assault upon an officer, not for resisting arrest. In Owens, while one of the charges involved was resisting arrest, there was plenary evidence of use by the defendant of force and violence on the arresting officers.
We consequently find no error in the trial judge‘s instructions to the jury in the respect complаined of.
John contends there was error in excluding proffered testimony by him that the reason for his flight from the officers was a prior shooting of a juvenile by police. It was the argument of defendant that such evidence would refute the inference that his flight was actuated by a desire to escape apprehension for his alleged assault on DeFillipo. We find that the exclusion of this testimony by the trial judge was within the permissible range of his discretion under
John also assigns error in the trial judge‘s refusal to admit the report of Patrolman Frabizio, who testified as to his observations of the encounter between John and the other police officers. John contends that some of the facts testified to by Frabizio are not reflected in the report. The report wаs admissible.
Although, as indicated in the foregoing discussion, we find no proper basis for reversal of either of John‘s convictions, we do conclude that there is merit in John‘s contention that his sentence to concurrent indeterminate terms to the Youth Correction Center at Yardville was a clearly mistaken exercise of discretion.
It is strongly emphasized in our cases in respect of sentencing that the courts have regard for the “whole man.” State v. Green, 62 N.J. 547, 566 (1973). In the present case the reasons for sentence set forth by the trial judge were confined to the considerаtion that John‘s offense constituted an assault upon a police officer doing his duty in the prevention of a potentially serious breach of the peace. The judge stated that the imprisonment of this defendant was “necessary to achieve socially justified deterrent purposes, and the punishment of this defendant is an appropriate vehicle to that end” and that “any lеsser punishment would deprecate the seriousness of the crime committed.” It appears to us, however, that the judge totally ignored the character of the defendant, his age, his background, the
At the time of the offense defendant was 19 years of age and a senior at Long Branch High School. He had no prior criminal or juvenile record whatever. At the time of his sentencing he was a sophomore at Lincoln College in Pennsylvania, where he had been admitted on an athletic scholarship. His ambition is to become a lawyer. The defendant is the product of a disadvantaged black family, all of whose members, except himself and his mother, had apparently been involved in prior brushes with the law. As attested by letters to the trial judge from responsible people in the community and at Lincoln College, this young man was on the verge of breaking the family pattern of chronic failure and of starting on the rоad to success in life.
The conduct for which the defendant was convicted was unquestionably reprehensible and to be condemned, but sentencing discretion needs to be exercised in the context of all the attendant circumstances and relevant considerations. This defendant had not gone out of his way to assault a police officer. He was involuntarily placed at thе center of a violent and emotional confrontation between the police and his father, who was about to be arrested. In the light of his demonstrated character and previous freedom from criminal involvement of any nature whatever, his reaction to the situation can be understood as an emotional reflex to what he perceived as an imminent threat to his father. What he did under the stimulus of these circumstances does not stamp him as of a criminal mentality nor as one apt to repeat such an offense if not deterred by the punishment of incarceration. Our present information is that defendant is now a college junior and that he has acquitted himself satisfactorily in his academic endeavors and with distinction in exracurricular activities. Incarceration of defendant for
The sentence is herewith modified by suspension of the custodial direction, with probation for a period of two years. The terms of the probation are to be fixed in such manner as not to interfere with the completion of defendant‘s education.
Judgment is affirmed as to Elijah Blanton, Sr. Judgment is modified as to defendant John Blanton, in respect of sentencing, conformably with this opinion.