NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1690-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KWAKU DUA, a/k/a KWAKU A. DUA, KWAKU AGYEMANG-DUA, KWAKU AGYEMANG-DUAN,
Defendant-Appellant.
Argued December 18, 2024 – Decided March 5, 2025
Before Judges Marczyk and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Bergen County, Indictment No. 20-02-0199.
Nadine Kronis, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Nadine Kronis, of counsel and on the briefs).
K. Charles Deutsch, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; K. Charles Deutsch, of counsel and on the brief).
PER CURIAM
Defendant Kwaku Dua appeals from the December 22, 2022 judgment of
conviction for third- and fourth-degree aggravated assault respectively of two
police officers. Following our review of the record and the applicable legal
principles, we affirm in part, reverse in part, and remand for a new trial.
I.
In November 2019, defendant was dining at a buffet restaurant with his
mother, wife, ex-partner, and children. Defendant's wife, Sara, 1 testified
defendant asked a waitress for a new straw and lid after one of their children
dropped theirs on the floor. She testified a waitress provided a new straw and
lid but placed them on an unclean area of the table. When defendant asked for
another straw, the waitress purportedly told him no. A verbal dispute ensued
between defendant and employees of the restaurant at the counter near the
vestibule at the entrance and exit to the restaurant. Defendant eventually called
the police and told the dispatcher he was "being disrespected."
1 Because defendant and his wife share the same last name, we refer to her by her first name. We intend no disrespect.
A-1690-22 2 Officers Andres Enriquez and John Hwang of the Bergenfield Police
Department were dispatched to the restaurant. Officer Enriquez testified that
when he arrived, he heard people yelling from inside the restaurant and saw a
crowd of people standing inside near the entrance. As he entered the restaurant
through the vestibule, he saw numerous customers and employees screaming at
each other. He described the environment inside the restaurant as "chaotic."
Three videos of the events were played for the jury: Officer Enriquez's mobile
video recording (MVR) from his police vehicle, the restaurant manager's
cellphone video, and footage from the cameras inside the restaurant.
According to Officer Enriquez, defendant approached him and they began
speaking near the front counter of the restaurant. Officer Enriquez indicated
that he recognized defendant's voice from the 9-1-1 call. He described
defendant's demeanor as "very angry," "agitated," and "upset" and that
defendant told him that he had been disrespected by the restaurant staff and was
willing to fight for his family.
Officer Enriquez testified he attempted to deescalate the situation. He
kept trying to get defendant to lower his voice and communicate properly, but
defendant continued "yelling really loudly." Defendant was "screaming
obscenities" and "cursing" at the restaurant's employees and staff. Officer
A-1690-22 3 Enriquez testified he advised defendant that he would be "placed under arrest
for disorderly conduct" if he did not calm down. Sara also could not calm
defendant and have him lower his voice.
Officer Hwang recounted that after being warned, defendant began
screaming obscenities at Officer Enriquez. Around that time, Officer Hwang
testified he walked toward defendant and Officer Enriquez from defendant's
rear, seeking to de-escalate the situation. The officers planned to escort
defendant outside because they wanted to speak with him in a quieter
environment and did not want to continue disturbing the customers inside the
restaurant. Officer Hwang indicated he attempted to "guide [defendant] outside
of the restaurant" by pointing in that direction. Officer Enriquez stated Officer
Hwang gestured with his left hand "to gain [defendant]'s attention" and to direct
him outside to talk.
Both officers testified that before Officer Hwang could say anything,
defendant punched him in the chest with a closed fist. Officer Enriquez stated
Officer Hwang "stepped back from the recoil of the punch." Officer Enriquez
noted that after defendant punched Officer Hwang, "[defendant] was going to
be placed under arrest for disorderly conduct and agg[ravated] assault on a
police officer." Likewise, Officer Hwang told the jury he "wanted to arrest
A-1690-22 4 [defendant] at that point because . . . it's aggravated assault on a law enforcement
officer."
As the officers attempted to grab defendant to arrest him, defendant
walked backwards through the first set of doors in the vestibule, and turned to
exit the last set of doors leading to the parking lot outside. 2 Officer Hwang
stated that before defendant exited the restaurant, the officers again tried to grab
him, at which point he shoved Officer Hwang "with two open palms," causing
him to bounce off the vestibule door behind him.
Officer Enriquez testified defendant exited the restaurant flailing his arms
away from the officers as they tried to arrest him. The officers eventually ended
up outside the vestibule where the altercation continued onto the sidewalk.
Unable to grab defendant's arms, Officer Enriquez recounted that he shoved
defendant toward his patrol car parked along the curb in front of the restaurant's
entrance. Officer Hwang testified defendant landed on the car's hood, with both
officers landing on top of him, and then the three rolled into the parking lot
between the two patrol cars. Defendant's wife, mother, and children also made
2 Patrons enter the restaurant from the parking lot through a front door. The front door connects to the vestibule, which has a second door leading into the restaurant itself. A-1690-22 5 their way out to the sidewalk, along with customers and employees from the
restaurant.
Officer Enriquez testified that while on the ground, they tried controlling
defendant to place him under arrest, "giving him orders to stop resisting" and to
"put [his] hands behind [his] back." Officer Hwang also stated he advised
defendant he was under arrest. However, defendant would not give the officers
his hands, kept trying to fight while lying on his back, and "swung at Officer
Hwang" with a closed fist, which did not make contact. Officer Hwang stated
defendant then used his hand to grab Officer Hwang's upper thigh area,
"reaching in the area of [his] firearm." At that point, Officer Hwang stated he
punched defendant in the face. The officers were then able to turn defendant
over. Officer Enriquez stated Officer Hwang used his baton "not to [strike
defendant], but just to separate his body from his hand." The officers were
eventually able to gain control of defendant's arms and arrest him.
Officer Hwang testified that he had neck pain shortly after the incident
and injured his middle finger from punching defendant. Officer Enriquez stated
he suffered a fracture in his right wrist when he fell on the ground in the parking
lot while rolling with defendant and trying to control his arms.
A-1690-22 6 Sara's testimony provided a different version of the events inside and
outside the restaurant. She testified when Officer Hwang approached Officer
Enriquez and defendant inside the restaurant, he grabbed defendant's wrists and
told him he was under arrest. She did not observe defendant punch Officer
Hwang in the stomach. She also stated defendant never threw a punch at any
officer. After Officer Hwang grabbed defendant's arm, she stated defendant
"kind of pulled away" and said "what do you mean I'm under arrest." Sara claims
at that point Officer Hwang grabbed defendant's arm and started pushing him
towards the front door, and defendant put his hands up in "a self-defense
motion." Sara then gathered her children and ran outside after them.
Sara testified that while outside, one officer had his arm around
defendant's neck,3 and the other officer had his hand in defendant's face. She
further stated that she observed Officer Hwang step back, draw his gun from his
holster, point the gun at defendant, and say, "I'm going to kill [defendant] —I'm
going to shoot him." Sara indicated that Officer Hwang then looked around and
3 On cross-examination, Sara indicated that an officer grabbed her husband by the neck but did not place his arm around his neck.
A-1690-22 7 holstered his gun, at which point both officers continued struggling to get
defendant onto the ground. 4
Sara testified she was inches away from the altercation and told the
officers "[y]ou're not telling [defendant] why he's arrested." She testified that
while defendant did not throw a punch, she observed him "defend himself." Sara
claimed that once defendant was on the ground, one officer had his knee on
defendant's rib and "punched him twice" in the eye, and "[t]he other officer took
out his [baton] and hit [defendant] twice." She indicated defendant was taken
to the hospital several hours after the altercation where he learned he had an
"orbital fracture" because of the punches to his eye.
In February 2020, defendant was indicted and charged with third-degree
aggravated assault on Officer Hwang, N.J.S.A. 2C:12-1(b)(5)(a); third-degree
resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree aggravated assault on
Officer Enriquez, N.J.S.A. 2C:12-1(b)(5)(a). Defendant was tried before a jury
in October 2022. A jury convicted defendant of third-degree aggravated assault
4 There is no video evidence depicting Officer Hwang drawing his weapon. However, the cameras only showed the interior portion of the restaurant and the perspective from the front of Officer Enriquez's police vehicle. There is no video of the officers struggling with defendant as they exit the vestibule until the officers and defendant come into contact with the hood of Officer Enriquez's vehicle. The restaurant manager did not begin filming until defendant and the officers were already in the parking lot between the police vehicles. A-1690-22 8 on Officer Enriquez and the lesser-included offense of fourth-degree aggravated
assault on Officer Hwang. He was acquitted of third-degree resisting arrest. In
December 2022, the court imposed an aggregate sentence of three years of
probation.
II.
Defendant raises the following points on appeal:
POINT I
BOTH POLICE OFFICERS TESTIFIED THAT [DEFENDANT] COMMITTED THE CHARGED CRIME OF AGGRAVATED ASSAULT ON A POLICE OFFICER, DENYING [DEFENDANT] A FAIR TRIAL AND REQUIRING REVERSAL. (NOT RAISED BELOW)
POINT II
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON SELF-DEFENSE DEPRIVED [DEFENDANT] OF A FAIR TRIAL. (NOT RAISED BELOW)
POINT III
THE TRIAL COURT'S FAILURE TO ADEQUATELY INSTRUCT THE JURY ON CAUSATION WAS PLAIN ERROR WHERE THERE WAS A FACTUAL DISPUTE OVER WHETHER [DEFENDANT] ACTUALLY CAUSED OF[FICER] ENRIQUEZ'S WRIST FRACTURE. (NOT RAISED BELOW)
A-1690-22 9 POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL (NOT RAISED BELOW)
If a defendant, as here, does not object or otherwise preserve an issue for
appeal at trial, courts review the issue for plain error. R. 2:10-2; State v. Singh,
245 N.J. 1, 13 (2021). Courts must disregard any unchallenged errors or
omissions unless they are "clearly capable of producing an unjust result."
R. 2:10-2. Plain error is a high bar and constitutes "error not properly preserved
for appeal but of a magnitude dictating appellate consideration." State v. Bueso,
225 N.J. 193, 202 (2016) (quoting Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 2:10-2 (2016)).
In reviewing issues for plain error, "[t]he mere possibility of an unjust
result is not enough." State v. Funderburg, 225 N.J. 66, 79 (2016). "In the
context of a jury trial, the possibility must be 'sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it otherwise might not have
reached.'" State v. G.E.P., 243 N.J. 362, 389-90 (2020) (quoting State v. Jordan,
147 N.J. 409, 422 (1997)). Thus, plain error requires a determination of: "(1)
whether there was error; and (2) whether that error was 'clearly capable of
producing an unjust result,' R. 2:10-2; that is, whether there is 'a reasonable
A-1690-22 10 doubt . . . as to whether the error led the jury to a result it otherwise might not
have reached.'" State v. Dunbrack, 245 N.J. 531, 544 (2021) (quoting
Funderburg, 225 N.J. at 79).
A.
Defendant argues, for the first time on appeal, that Officers Enriquez and
Hwang improperly addressed the ultimate issue at trial and opined on
defendant's guilt because they testified defendant committed aggravated assault
on a police officer. Defendant contends the testimony was clearly capable of
producing an unjust result and thus constituted plain error. The State, in turn,
asserts the officers never testified on the ultimate issue, but even if they did, it
would not have produced an unjust result because the State presented additional
evidence that enabled the jury to draw its own conclusion about defendant's
guilt.
Under N.J.R.E. 701, "[i]f a witness is not testifying as an expert, the
witness' testimony in the form of opinions or inferences may be admitted if it:
(a) is rationally based on the witness' perception; and (b) will assist in
understanding the witness' testimony or determining a fact in issue." Police
officers may "testify as lay witnesses, based on their personal observations and
their long experience in areas where expert testimony might otherwise be
A-1690-22 11 deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989). Specifically,
law enforcement is permitted to give "an ordinary fact-based recitation" of "what
he or she perceived through one or more of the senses," but such testimony does
not include an opinion or convey information about "what the officer 'believed,'
'thought[,]' or 'suspected.'" State v. McLean, 205 N.J. 438, 460 (2011).
Consequently, an officer may not "give an opinion on matters that were
not beyond the understanding of the jury," id. at 463, or "opine directly on a
defendant's guilt in a criminal case." State v. Trinidad, 241 N.J. 425, 445 (2020).
It is the jury's "traditional function of sorting through all of the evidence and
using their common sense to make simple logical deductions" in deciding the
ultimate issue in a case. State v. Cain, 224 N.J. 410, 427 (2016); State v. Simms,
224 N.J. 393, 405 (2016). Hence, "ultimate-issue testimony" usurps the jury's
role and can produce an unjust result under the plain error standard. Simms, 224
N.J. at 407.
Moreover, our courts "go to extraordinary lengths in ordinary criminal
cases to . . . avoid inadvertently encouraging a jury prematurely to think of a
defendant as guilty." State v. Hightower, 120 N.J. 378, 427 (1990) (Handler, J.,
concurring in part and dissenting in part). Accordingly, courts have not
permitted police officers to give a factual recitation and then subsequently
A-1690-22 12 testify about their beliefs because doing so would "transform[] testimony about
an individual's observation[s] . . . into an opportunity for police officers to offer
opinions on defendants' guilt." McLean, 205 N.J. at 461.
For example, our Supreme Court views ultimate-issue testimony on a
defendant's state of mind as a "quasi-pronouncement of guilt that intrudes on the
exclusive domain of the jury as factfinder." Cain, 224 N.J. at 427. Thus, in
Cain, after explaining to the jury the significance of the quantity and packaging
of the drugs, scale, and cutting agents found in a defendant's home, the expert
could not then opine on the defendant's intent to distribute those drugs because
the jury already had the necessary information to draw its own conclusions on
that ultimate issue of fact. Id. at 432.
Similarly, a prosecutor may not pose a hypothetical question that causes
an expert to inappropriately opine on a defendant's intent to distribute drugs
because the opinion would be "tantamount to a legal conclusion, resulting in a
veritable pronouncement of guilt on the two possession crimes for which [the]
defendant was charged." State v. Reeds, 197 N.J. 280, 295, 297 (2009).
Likewise, testimony that "mimick[s] the statutory elements of the offense" is not
necessary to assist the jury and thus improper. Simms, 224 N.J. at 396.
A-1690-22 13 In contrast, impermissible lay opinion about the ultimate issue of a
defendant's guilt will not always constitute plain error. Trinidad, 241 N.J. at
446-47. In Trinidad, the defendant was a former police officer tried for, among
other things, falsifying public records and official misconduct stemming from a
traffic stop gone awry. Id. at 433. An internal affairs investigator testified that
based on reviewing the dashcam footage of the defendant's patrol car, the
defendant's actions "appeared to have been criminal." Id. at 441-42. While the
trial judge should have instructed the jury to disregard that testimony, the Court
did not find its admission constituted plain error because the jury could compare
the dashcam footage of the defendant's egregious misconduct with the
defendant's police report to conclude that the report had been falsified. Id. at
446-48. In another case, the Court found an officer's testimony that "[the
defendant] was the person responsible for the murder" to be harmless error in
light of the strength of the State's case, the length of trial, and number of
witnesses called. Hightower, 120 N.J. at 410.
Defendant argues that Officers Hwang and Enriquez opined on
defendant's guilt throughout the trial. To convict defendant of third-degree
aggravated assault on a police officer, the State must prove:
A-1690-22 14 1. that the defendant purposely attempted to cause or purposely, knowingly or recklessly caused bodily injury [to the victim];
2. that [the victim] was a law-enforcement officer; and
3[]. that the defendant knew that [the victim] was a law- enforcement officer [] acting in the performance of [their] duties or while in uniform or exhibiting evidence of [their] authority[.]
[Model Jury Charges (Criminal), "Aggravated Assault - Upon Law Enforcement Officer (Attempting to Cause or Purposely, Knowing or Recklessly Causing Bodily Injury) (N.J.S.A. 2C:12-1b(5)(a), (b), (c), (d), (e), (f), (g))" at 1 (rev. Dec. 3, 2001) [hereinafter Model Jury Charges for Aggravated Assault Upon an Officer].]
Defendant contends portions of the officers' testimony were "tantamount to a
legal conclusion" and openly pronounced defendant guilty of aggravated assault
on a police officer.
Defendant first cites three statements from Officer Enriquez's testimony:
(1) after stepping back from the recoil of defendant's punch, Officer Hwang
"attempted to . . . grab [defendant] to arrest him for agg[ravated] assault on a
police officer"; (2) "At that point, [defendant] was going to be placed under
arrest for . . . agg[ravated] assault on a police officer"; and (3) defendant was
placed under arrest for "agg[ravated] assault, and resisting arrest."
A-1690-22 15 Contrary to defendant's contentions, none of these statements constitutes
an impermissible opinion on the ultimate issue of fact. In the three statements,
Officer Enriquez merely recited that the officers were attempting to place
defendant under arrest for aggravated assault because he punched Officer
Hwang. Notably, Officer Enriquez explained the reasons for his actions
following his firsthand experience of the incident. Thus, Officer Enriquez
testified about the events he perceived rather than about what he believed,
thought, or suspected. McLean, 205 N.J. at 460. He did not offer a
contemporaneous opinion at trial regarding defendant's guilt. He did not opine
on defendant's state of mind or that defendant acted purposefully, knowingly, or
recklessly. Therefore, contrary to defendant's assertion, a statement that
defendant was placed under arrest for aggravated assault is not a declaration that
"[defendant] committed an aggravated assault on [Officer] Hwang."
Officer Hwang testified that after defendant punched him, he "wanted to
arrest [defendant] . . . because . . . it's aggravated assault on a law enforcement
officer." Officer Hwang's statement could be construed as his opinion at the
time of the arrest as to the ultimate issue before the jury. That is, that defendant's
conduct constituted aggravated assault on a law enforcement officer—the crime
for which defendant was charged. Although the testimony should have been
A-1690-22 16 excluded, the mere admission of this fleeting statement is not plain error denying
defendant's right to a fair trial.
In line with the reasoning in Trinidad, the jury was presented with a
plethora of evidence upon which it could find defendant guilty of aggravated
assault. Specifically, the jury saw videos of the altercation inside and outside
the restaurant, listened to Officer Enriquez's MVR audio, and heard both officers
testify that defendant punched Officer Hwang in the chest. That is, Officer
Hwang's single statement was not central to the State's case. The jury also
considered a vastly different version of events from Sara. Officer Hwang's stray
comment does not rise to the level of a plain error under the totality of the
circumstances in this matter. We are satisfied the limited testimony would not
have "led the jury to a result it otherwise might not have reached." Trinidad,
241 N.J. at 447 (quoting State v. Macon, 57 N.J. 325, 336 (1971)); see, e.g.,
Hightower, 120 N.J. at 410 (holding an officer's testimony that the defendant
"was the person responsible for the murder" was harmless error because of "the
strength of the State's case, the length of the trial, and the number of witnesses
called").
Notably, the jury acquitted defendant of third-degree aggravated assault
on Officer Hwang, instead convicting him of the lesser offense of fourth-degree
A-1690-22 17 aggravated assault on a police officer, which requires an attempt to cause bodily
injury as opposed to purposely, knowingly, or recklessly causing such an injury.5
Hence, Officer Hwang's single statement that "it's aggravated assault on a law
enforcement officer" was not dispositive of the State proving third-degree
aggravated assault, because even with that testimony, the jury only found
defendant guilty of the lesser-included crime. Accordingly, even if the
testimony was improperly admitted, the error did not affect the outcome of the
case and therefore was not "clearly capable of producing an unjust result."
R. 2:10-2.
Nevertheless, because we are reversing and remanding for the issues
discussed below regarding the court's failure to provide a self-defense charge,
on remand the State should avoid questions that would elicit opinion testimony
regarding defendant's guilt that would usurp the jury's role.
B.
Defendant contends the court was required to instruct the jury on two
different self-defense charges because there was sufficient evidence in the
record to show defendant used force in self-defense during his altercation with
5 Fourth-degree aggravated assault requires a person to attempt to cause bodily injury to a police officer acting in performance of their duties while in uniform or exhibiting evidence of authority. N.J.S.A. 2C:12-1(b)(5)(a). A-1690-22 18 the officers. Defendant reasons that if the judge gave instructions on self -
defense, the jury could have found the defense to be a complete justification to
all charges. Defendant disputes that he was the initial aggressor based on his
wife's testimony. Defendant principally relies on State v. Mulvihill 6 and State
v. Montague7 in asserting the court erred in failing to give the appropriate self-
defense charges.
The State contends defendant cannot claim self-defense in the context of
an arrest by police officers when defendant was the initial aggressor and knew
submitting to the officers would terminate their use of force. It asserts that
because defendant was the initial aggressor, he cannot raise self-defense.
"An essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions." State v. McKinney, 223 N.J. 475, 495 (2015)
(quoting State v. Afanador, 151 N.J. 41, 54 (1997)). "At the heart of the
guarantee of a fair trial is the 'jury's impartial deliberations upon the guilt of a
criminal defendant based solely upon the evidence in accordance with proper
and adequate instructions . . . .'" State v. Collier, 90 N.J. 117, 122 (1982)
(quoting State v. Simon, 79 N.J. 191, 206 (1979)).
6 57 N.J. 151 (1970). 7 55 N.J. 387 (1970). A-1690-22 19 The trial court must give "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Thus, the court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party."
[State v. Baum, 224 N.J. 147, 159 (2016) (citations omitted) (first quoting State v. Green, 86 N.J. 281, 287- 88 (1981); then quoting State v. Reddish, 181 N.J. 553, 613 (2004)).]
"Jury instructions have been described as 'a road map to guide the jury[;]
without an appropriate charge, a jury can take a wrong turn in its deliberations.'"
McKinney, 223 N.J. at 495 (alteration in original) (quoting State v. Martin, 119
N.J. 2, 15 (1990)). "Because proper jury instructions are essential to a fair trial,
'erroneous instructions on material points are presumed to' possess the capacity
to unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J.
534, 541-42 (2004)); see also State v. Jordan, 147 N.J. 409, 422 (1997) (finding
that some jury instructions are "so crucial to the jury's deliberations on the guilt
of a criminal defendant that errors in those instructions are presumed to be
reversible"). "Therefore, '[e]rroneous instructions are poor candidates for
rehabilitation as harmless, and are ordinarily presumed to be reversible error.'"
McKinney, 223 N.J. at 495-96 (alteration in original) (quoting Afanador, 151
A-1690-22 20 N.J. at 54); see also Baum, 224 N.J. at 159 (erroneous instructions on material
points are presumed to possess the capacity to unfairly prejudice the defendant).
The plain error analysis of an erroneous jury charge mandates that the reviewing
court examine the charge as a whole to determine its overall effect. McKinney,
223 N.J. at 494.
"The standard for assessing the soundness of a jury instruction is 'how and
in what sense, under the evidence before them, and the circumstances of the
trial, would ordinary . . . jurors understand the instructions as a whole.'" State
v. Savage, 172 N.J. 374, 387 (2002) (quoting Crego v. Carp, 295 N.J. Super.
565, 573 (App. Div. 1996)).
A law enforcement officer may use force when making an arrest if they
"reasonably believe[] that such force is immediately necessary to effect a lawful
arrest." N.J.S.A. 2C:3-7(a). "If the citizen resists the arrest, the officer is not
only justified in but has the duty of employing such force as is reasonably
necessary to overcome the resistance and accomplish the arrest." Mulvihill, 57
N.J. at 156. "Accordingly, in our State when an officer makes an arrest, legal
or illegal, it is the duty of the citizen to submit and, in the event the seizure is
illegal, to seek recourse in the courts for the invasion of his right of freedom. "
Id. at 155-56.
A-1690-22 21 However, our law also authorizes a civilian's use of force in self-
protection while being placed under arrest in certain limited circumstances. "If,
in effectuating the arrest or the temporary detention, the officer employs
excessive and unnecessary force, the citizen may respond or counter with the
use of reasonable force to protect himself, and if in so doing the officer is injured
no criminal offense has been committed." Id. at 156; see also N.J.S.A. 2C:3-
4(b)(1)(a) (although a person may not use force to resist arrest simply because
the arrest is unlawful, he or she may use force if the officer employs unlawful
force to effect such arrest).
The citizen cannot use greater force in protecting himself from the
officer's unlawful force than appears necessary under the circumstances, and he
loses his privilege of self-defense if he knows that if he submits to the officer,
the officer's excessive use of force will cease. Mulvihill, 57 N.J. at 157. The
rule is designed to protect a person's bodily integrity and health as "the law
recognizes that liberty can be restored through legal processes but life or limb
cannot be repaired in a courtroom." Id. at 156.
A self-defense charge is required when "any evidence raising the issue of
self-defense is adduced, either in the State's or the defendant's case." State v.
Kelly, 97 N.J. 178, 200 (1984). If such evidence is present, "then the jury must
A-1690-22 22 be instructed that the State is required to prove beyond a reasonable doubt that
the self-defense claim does not accord with the facts; [and] acquittal is required
if there remains a reasonable doubt whether the defendant acted in self-defense."
Ibid.; see also State v. Gentry, 439 N.J. Super. 57, 63 (App. Div. 2015) (holding
that a self-defense instruction is required, even when not requested, where the
evidence indicates a rational basis for instructing it).
"[B]ecause self-defense must be charged if the evidence, viewed most
favorably to the defendant, would support that justification, we focus on 'the
evidence that provides a rational basis for a self-defense charge.'" Gentry, 439
N.J. Super. at 63 (quoting State v. Rodriguez, 195 N.J. 165, 170 (2008)).
"Where there is sufficient evidence to warrant a self-defense charge, failure to
instruct the jury . . . constitutes plain error." Id. at 67.
Here, defendant asserts the jury should have been instructed on two
different self-defense charges, both of which are based on N.J.S.A. 2C:3-4.
Under the first charge, a defendant may use nondeadly force if they reasonably
believe the use of force was necessary to defend against an unlawful force.
Model Jury Charges (Criminal), "Justification – Self Defense in Self Protection
(N.J.S.A. 2C:3-4)" at 4 (Rev. Nov. 13, 2023) [hereinafter General Self Defense].
A-1690-22 23 The right of defendant against the use of unlawful force exists "[w]hen a person
is in imminent danger of bodily harm." Id. at 1.
A different charge on self-defense applies when a defendant claims they
had the right to resist an arrest because the arresting officer used unlawful and
excessive force. Model Jury Charges (Criminal), "Justification - Self Defense
Resisting Arrest (N.J.S.A. 2C:3-4)" at 1 (Approved Oct. 17, 1988) [hereinafter
Resisting Arrest Self Defense]. It provides, "[a]n officer may use, to effect an
arrest, the amount of force necessary to accomplish the arrest." Ibid. As such,
the jury "must determine whether the officer used substantially more force than
was necessary to effect the arrest of the defendant." Ibid. The charge, in part,
provides:
A person may use force to protect himself . . . if four conditions exist:
1. The person reasonably believes that he . . . is protecting himself . . . against unlawful force.
2. The person reasonably believes that he . . . has the right to use force.
3. The person reasonably believes that the use of force is immediately necessary.
A-1690-22 24 4. The person reasonably believes that he . . . is using the force to protect himself . . . .8
[Ibid.]
Defendant relies upon Mulvihill and Montague for the proposition that
courts must give the jury tailored instructions on both self-defense charges when
there is sufficient evidence of self-defense at trial and a factual dispute regarding
whether a defendant was under arrest at the time of the altercation with law
enforcement. In State v. Montague, the Court found the trial judge erred in
instructing the jury that the defendant could not claim he acted in defense of
another. 55 N.J. at 403-04. There, the defendant testified that during a traffic
stop, he heard a uniformed officer tell his niece to stop blowing the horn, saw
his niece leave the car, and then heard her yell a racial slur at the officers. Id.
at 391-92. The defendant stated the officer said, "I'll smack you," to which his
8 The charge further provides:
A person may not, however, resist any arrest he . . . knows is being made by an officer in the performance of the officer's duties, whether the arrest is legal or illegal, unless that officer uses unlawful force. Your first task, therefore, is to determine whether the officer used unlawful force to try to arrest the defendant.
A-1690-22 25 niece responded, "I'll smack you back," and the defendant then saw the officer
beating his niece. Ibid. Four witnesses corroborated the defendant's testimony.
Id. at 391-93. Thus, the Court found "there was something more" than an
intervenor's bare assertion that the officers committed an unlawful arrest. Id. at
405-06. "[T]here was enough affirmative testimony favorable to the defendant
from which a jury could properly have found that the circumstances reasonably
indicated to the defendant" that the officer was not trying to arrest his niece but
rather "administering a beating." Ibid.
Furthermore, in Mulvihill, the Court held that a defendant was entitled to
submit his self-defense claim to a jury. 57 N.J. at 159. There, an officer
approached the defendant suspecting he violated an ordinance against drinking
alcohol in public. Id. at 154-55. When the defendant failed to disclose what he
was drinking and refused to allow the officer to smell his breath, the officer
"shook him 'back and forth' by the shoulders" and said[,] "I should arrest you,
you punk." Ibid. The defendant tried to pull away, and an altercation ensued
on the ground, during which the officer struck the defendant on the head with
his gun causing lacerations. Id. at 155. The defendant grabbed the officer's
hand to point the gun away and avoid being shot, while the officer tried to direct
it toward him saying, "Stop or I'll shoot." Ibid.
A-1690-22 26 Given the parties disputed whether the defendant was under arrest prior to
the altercation, the Court provided two bases for allowing a self-defense charge.
Id. at 158-59. First, if a jury found the officer's words or conduct informed the
defendant that he was under arrest, it would then need to determine whether the
officer's use of force was reasonable or excessive, implicating the defendant's
ability to defend himself. Id. at 158. Alternatively, if the jury found the
defendant was not under arrest when the altercation occurred, the defendant may
have been entitled to defend himself because the altercation could have "t[aken]
on the character of combat between two private individuals." Id. at 159.
Here, defendant argues the jury should have been instructed on both self-
defense charges because there was a factual dispute regarding whether defendant
knew he was under arrest when the altercation occurred. First, he asserts the
court was required to instruct the jury that if it found defendant was not under
arrest or did not know he was being arrested, the jury should utilize the General
Self Defense charge for altercations between private individuals. Alternatively,
if the jury found defendant was under arrest or knew he was being arrested, the
jury should apply the Resisting Arrest Self Defense charge to determine whether
defendant used reasonable force in response to the officers' alleged excessive
force.
A-1690-22 27 Viewing the evidence most favorably to defendant, Sara testified
defendant never threw a punch at the officers. She stated Officer Hwang
grabbed defendant's arm and forcefully pushed him toward the door, and
defendant put his hands up in a "self-defense motion." Although Sara testified
the officers told defendant he was under arrest in the restaurant after grabbing
him and pushing him out of the vestibule, both officers testified they did not
intend to arrest defendant until defendant struck Officer Hwang. The court
should have given the general self-defense charge because the jury could have
concluded that defendant never struck either officer and that he did not know he
was under arrest in the restaurant, and he was holding his hands up in a "self-
defense motion."
We similarly conclude the resisting arrest self-defense charge should have
been given regarding the interaction between defendant and the officers outside
the restaurant. Again, Sara's testimony raises an issue that must be resolved by
the jury on the issue of self-defense. She claims Officer Hwang drew his gun
and allegedly stated he was going to shoot defendant. She further testified one
of the officers punched defendant in the face two times, and the other hit him
twice with his baton. Meanwhile, she recounted defendant never punched the
officers and was trying to defend himself. Accordingly, a jury could have
A-1690-22 28 concluded defendant knew he was under arrest and acted in self-defense to
counter the officers' alleged use of unlawful force.
Accordingly, the jury should have received both self-defense charges.
Absent an appropriate self-defense instruction, the jury was effectively
prevented from considering whether the officers employed unlawful force, and
whether defendant reasonably believed it was necessary to use force to protect
himself.
To be sure, Sara's testimony is strongly disputed by the State. The State
argues Sara's testimony was "blatantly false," she contradicted herself at trial,
and the video evidence conflicted with her testimony. Nevertheless, her
testimony creates a fact issue thereby providing a rational basis for both self-
defense charges. The failure to instruct the jury that self-defense is a
justification for resisting arrest where the facts reasonably could support that
defense constitutes plain error. Simms, 369 N.J. Super. at 473. On remand, the
trial court should provide both instructions. We are mindful defendant was
acquitted of resisting arrest. Accordingly, we leave it to the court's sound
discretion to modify the resisting arrest self-defense charge in the context of the
remaining aggravated assault charges.
A-1690-22 29 Considering our ruling, we need not reach defendant's argument that the
court erred in failing to adequately instruct the jury on causation regarding
Officer Enriquez's wrist injury. Defendant may raise this issue on remand for
the trial court to address in the first instance.
We vacate the convictions and remand for a new trial. We do not retain
jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
Clerk of the Appellate Division
A-1690-22 30