Green v. State, A99A1145.

• Decision Date: 12 November 1999
• Docket Number: No. A99A1145.,A99A1145.
• Citation: 240 Ga. App. 774,525 S.E.2d 154
• Parties: GREEN v. The STATE.
• Court: Georgia Court of Appeals

525 S.E.2d 154

240 Ga. App. 774

GREEN v. The STATE.

No. A99A1145.

Court of Appeals of Georgia.

November 12, 1999.

Certiorari Denied March 3, 2000.

Robert L. Mack, Jr., Lithonia, for appellant.

Keith C. Martin, Solicitor, Michael L. Tripp, Assistant Solicitor, for appellee.

RUFFIN, Judge.

Addie L. Green was charged with family violence battery and obstruction of a police officer. Following a jury trial, she was convicted of obstruction but acquitted of battery. She appeals, contending that the trial court committed several errors, primarily with respect to jury charges. Because each of these contentions is without merit, we affirm.

On September 4, 1998, Officer Brian Palmer was sent to investigate a domestic disturbance at a residence in Clayton County where Green and her brother lived. As he approached the house, Palmer noticed Green lying in a nearby driveway. Palmer testified that she had no visible injuries but appeared "very agitated." Palmer stayed with her until other officers arrived, at which time he went to Green's house, where he spoke with her brother and their mother. At some point, Green was placed in Officer Vest's patrol car and brought back to the house. She was told that she was not under arrest at this time.

While Green was seated in the back of Officer Vest's vehicle, Officer Palmer interviewed Green's brother and their mother. Both of these individuals told Palmer that Green had struck her brother with an iron pole during an argument. After interviewing these witnesses and while they were preparing their written statements, Officer Palmer went outside to place Green under arrest for battery. It was at this time that Green committed the acts forming the basis for the obstruction charge. According to Officer Palmer, when the officers attempted to put handcuffs on Green, she became combative and "tossed us around for a few minutes ... [and] kicked me one time." Palmer testified that it took three officers to bring Green to the ground and place handcuffs on her. Green admitted that she was aware Officer Palmer was a police officer; that it took three officers to take her into custody; that she physically resisted their efforts to take her into custody; and that she might have kicked Officer Palmer. However, she testified that the officers did not tell her she was under arrest until after the handcuffs had been placed on her.

1. Green contends the trial court erred in failing to charge that "[ e]very person has the right to resist an illegal arrest, and may use, in resisting that arrest, such force as is necessary for the purpose of resisting such an arrest."¹ She contends that such a charge was required because her "sole defense" was that she was justified in resisting an unlawful arrest. The State, on the other hand, argues that a challenge to the legality of the arrest "is not a `defense,' but is a contention that the State failed to prove an essential element of the crime."² Because the trial court properly instructed the jury on the essential elements of the crime, the State contends that an additional charge on the right to resist an unlawful arrest was not required. For the reasons discussed below, we agree that the trial court did not err in refusing to give Green's charge.

Under OCGA § 16-10-24(a), a person commits the offense of obstruction of a law enforcement officer when she "knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties." Consequently, as an essential element of a prosecution for this offense, the State must prove that the officer was in the lawful discharge of his official duties at the time of the obstruction.³

An officer may be engaged in the lawful discharge of his official duties even if he does not have probable cause to arrest an individual. Thus, for example, an individual who obstructs an officer during the investigation of a crime may be guilty of obstruction notwithstanding the lack of probable cause to arrest that individual. In the present case, however, the acts of obstruction committed by Green consisted of her attempts to resist arrest. If the arrest itself was unlawful, then the officers would not have been acting in the lawful discharge of their official duties by attempting to arrest Green, and her resistance to the arrest would not constitute obstruction.⁴ Consequently, under the facts of this case, the State was required to prove the lawfulness of the arrest in order to prove an essential element of the offense.

The trial court correctly instructed the jury on the essential elements of the offense, charging that "a person commits the offense of obstruction of an officer when that person knowingly and willfully obstructs or hinders a law enforcement officer in the lawful discharge of his official duties." The trial court also instructed the jury that the State has the burden of proving every essential element of the crime charged beyond a reasonable doubt. Furthermore, the trial court correctly charged that a law enforcement officer may arrest an individual without a warrant if the officer has probable cause to believe that an act of family violence has been committed.

Green's characterization of her challenge to the legality of the arrest as an affirmative defense is erroneous. We have previously held that

[w]ith a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet [these] criteria[,] i.e., justification, self-defense or defense of others, rendering assistance to law enforcement officers, defense of habitation, defense of property other than habitation, entrapment, and coercion. See OCGA §§ 16-3-20 through 16-3-28. Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense. In fact, even under the more general provision of OCGA § 16-3-20(6), the defense of justification can only be claimed "(i)n all other instances which stand upon the same footing of reason and justice as those enumerated in this article (Article 2 of Chapter 3 of Title 16)."⁵

In raising the "defense" that the arrest was unlawful, Green is not admitting the essential elements of the crime of obstruction, but is asserting that the State failed to prove an essential element—that the officers were acting in the lawful discharge of their official duties by attempting to arrest her. If the arrest was unlawful, then Green's resistance would not constitute obstruction, and there would be no need for her to rely on a "defense" of justification. Thus, under the facts of this case, the alleged unlawfulness of the arrest is not an affirmative defense to the charge as suggested by Green.⁶

Jury instructions must be viewed as a whole, and it is not error to refuse to give a requested charge "when the same principles are fairly given to the jury in the general charge of the court."⁷ In this case, the jury was instructed, among other things, that the State must prove beyond a reasonable doubt that the officer was acting in the lawful discharge of his official duties. If the jury determined that the arrest was unlawful, it would have been required to acquit Green because of the State's failure to prove an essential element of the crime, not because her resistance was "justified." Thus, a charge on the right to resist an unlawful arrest would have added little, if anything, to the court's charge and would certainly not have aided the jury in determining what constitutes an unlawful arrest. Because the principle of Green's suggested charge was fairly covered by the remainder of the court's charge, the trial court did not err in refusing to give the charge.

2. In a separate enumeration, Green contends that the trial court erred in finding as a matter of law that her arrest was legal. It is true that, as discussed above, the legality of the arrest was a matter for the jury to decide in determining whether the State had proven the essential elements of the crime beyond a reasonable doubt. Unlike in a civil case, the trial court in a criminal case may not direct a verdict for the State on an essential element, no matter how compelling the evidence.⁸ This is because "[a]lthough a jury has a duty to convict when the evidence proves guilt beyond a reasonable doubt, its duty is distinct from its power, and a jury has the power to acquit the defendant even if its verdict is contrary to the law and the evidence."⁹ However, although the trial court stated outside the presence of the jury that it believed there was probable cause for the arrest, the legality of the arrest was in fact submitted to the jury, which was instructed on the State's burden to prove all essential elements of the offense. Accordingly, this enumeration presents no basis for reversal.

3. Green contends that the trial court erred in failing to charge on an arresting officer's duty to identify himself and to inform the accused of the nature of the charge against her. The written request to charge is not contained in the record. However, the State admits the language of the request in its brief, stating that the charge read as follows: "It is the duty of the officer to disclose his official character to the person whom he is arresting and the officer must inform the accused of the nature of the charge." Pretermitting whether Green waived this enumeration by failing to include the written request in the record, the trial court did not err in failing to give the charge because it is not a complete and accurate statement of the law. The correct principle, as set forth by the Supreme Court in Morton v. State,¹⁰ is as follows: "It is the duty of an officer, when authorized to arrest, but where the circumstances afford reason to...