Lamb v. State

DAVIS, J. Appellant Gary Edward Lamb was charged with disorderly conduct, second degree assault, intentionally and knowingly ⁶¹⁴ obstructing and hindering a police officer in the lawful performance of his duties, willfully failing to obey the reasonable and lawful order of a law enforcement officer, and resisting arrest. Appellant was tried in the Circuit Court for Prince George’s County on December 11-12, 2000 by a jury. After the trial court granted the motion for judgment of acquittal by appellant’s counsel as to the disorderly conduct count, appellant was convicted by the jury on the remaining four charges. On February 2, 2001, appellant was sentenced to five years’ incarceration, with all but two years suspended, for intentionally and knowingly obstructing and hindering a police officer in the lawful performance of his duties, ninety days’ incarceration for willfully failing to obey the reasonable and lawful order of a law enforcement officer, and five years’ incarceration, with all but two years suspended, for resisting arrest.

All of the sentences were ordered to be served concurrently and the court merged the second degree assault conviction into the resisting arrest conviction. Appellant files this timely appeal and presents three questions for our review, which we restate as follows: I. Does the fact that a law enforcement officer attempted to effect an unlawful arrest preclude appellant’s conviction for hindering and obstructing the officer in the performance of his duties and were appellant’s responses to the officer’s actions legally cognizable as proper defenses and to related charges?

II

Did the trial court err in refusing to either permit cross-examination of the arresting officer or instruct the jury as to the legality of the juvenile arrests that appellant was alleged to have hindered?

III

Did the prosecutor deprive appellant of a fair trial by making inflammatory comments during the closing argument in violation of an order in limine? We conclude that the record is insufficient to answer appellant’s first question and we answer his second question in the affirmative. We hold that he failed to preserve the third issue for our review, but address the issue for guidance of the lower ⁶¹⁵ court on remand. We therefore reverse the judgments of the trial court and remand the case for further proceedings consistent with this opinion.

FACTUAL BACKGROUND On the evening of December 31, 1999, Officer Paul Corride-an stopped his police cruiser in front of 3702 Otis Street in Mount Rainier, Maryland, the home of Ralph and Rhea Ques-enberry, parents of appellant, and confronted two juveniles sitting on the curb in front of the house. At trial, the two juveniles were identified as appellant’s half-brother and another juvenile (“T.F.”); the two testified on behalf of appellant at trial. According to Officer Corridean, the two juveniles had open containers of alcohol between their feet as they sat on the curb. “T.F.,” however, denied that he and appellant’s brother were drinking anything. Officer Cor-ridean then ordered the two juveniles to his police cruiser and proceeded to take the two into custody when appellant arrived at the scene.

The facts as gleaned from the testimony of each party, from this point forward, differ sharply. According to Officer Corridean, he attempted to handcuff the juveniles when appellant came from behind and pushed the officer hard on the right shoulder and asked, “What the fuck are you doing to my brother?” The officer then turned and ordered appellant to back up because the juveniles were under arrest at which point appellant stepped back in his stepfather’s yard. Once in the yard, appellant “drew a line right at [sic] where the grass and the sidewalk meet” and said, “now I’m in my yard, motherfucker, or something to that effect.” When appellant first stepped back, Officer Corridean had not yet decided to arrest appellant. After appellant drew the imaginary line, Officer Corridean “instructed him a second time” to back away and appellant then made “some obscene gesture.” Officer Corridean then told appellant that he was under arrest and then reached out to grab appellant.

Appellant then “assaulted [Officer Corridean] a second time” by ⁶¹⁶ “pushing off [Officer Corridean’s] left hand.” At that point, Officer Corridean “deployed [his] department pepper spray,” at which time appellant began running through the yard. After spraying appellant with the pepper spray, Officer Corridean called for back-up and pursued appellant to the front steps of the house, where a “second struggle” ensued, during which appellant punched him “three or four times.” Officer Corridean responded to appellant’s punches with a second shot of pepper spray. By this time, both juveniles had fled from the police cruiser. After deploying pepper spray a second time, one of the juveniles appeared and grabbed appellant and guided him around the left side of the house to the back entrance.

Shortly thereafter, when back-up forces had arrived on the scene, the officers saw appellant inside the house through the windows. The officers stood outside the house and yelled for appellant to come outside and turn himself in. After Officer Corridean removed his canine from the cruiser and gave two warnings for appellant to come out of the house, appellant “came down the stairs and surrendered, and ... was taken into custody.” Testimony by appellant and his witnesses — juvenile “T.F.,” Sally Ann Quesenberry, and Ralph Lee Quesenberry — -differed sharply from that of Officer Corridean. According to appellant, on New Year’s Eve 1999, he was visiting his parents’ home to attend Midnight Mass with his family.

When appellant arrived at his parents’ home, he observed his younger brother in the street, being kicked in the side by Officer Corridean. Appellant asked Officer Corridean why he was kicking his brother, which caused Officer Corridean to make a gesture or say something indicating that appellant should back away. Appellant complied, stepping back into his parents’ yard, after which time he repeated his question to the officer. Angered, Officer Corridean attacked appellant with his pepper spray, spraying him repeatedly in the face.

Appellant then proceeded up the back stairs to his parents’ house into an upstairs bathroom, where he attempted to ⁶¹⁷ ameliorate the effect of the pepper spray. As soon as he heard the police officers tell him he was under arrest, he came down the stairs to the front of the house and surrendered peacefully. All of appellant’s witnesses watched Officer Corri-dean spray him with the pepper spray, but none of those witnesses observed appellant threaten or strike the officer or disobey his commands. Also, none of them heard Officer Corridean tell appellant that he was under arrest until appellant was upstairs in the home.

Prior to trial, appellant filed a motion in limine seeking an order prohibiting the State from referring to appellant’s criminal history in opening statement, closing argument, or in its questions to witnesses, without prior approval from the trial court. The order sought also would require the State to instruct its police witnesses that they may not refer in any fashion to appellant’s prior record, either on direct examination or under cross-examination, absent prior approval from the trial court, subject to the penalty of having their testimony stricken in its entirety. Should the State believe that appellant’s criminal record, or any part thereof, has become relevant to some issue at trial, under the proposed order, the State must so inform the court and counsel for appellant in order to give appellant a fair opportunity to contest the admission of such evidence at a hearing to be held out of the presence of the jury. The court granted the in limine motion.

During cross-examination of Officer Corridean by appellant’s counsel, the trial judge refused to allow appellant’s counsel to inquire into the officer’s belief as to the lawfulness of arresting the two juveniles. Following subsequent redirect examination of Officer Corridean, appellant’s counsel made a proffer to the court regarding the questions he sought to ask the officer during cross-examination. During that proffer, appellant’s counsel stated that he “was attempting to ask [Officer Corridean] about the lawfulness of the underlying arrest[s] of the juvenile[s].” The trial judge responded that “[t]hat’s not a decision for [Officer Corridean].... We’re not here on the arrest[s] of the juveniles.

We’re here on the other part.” ⁶¹⁸ At the conclusion of the State’s case, appellant moved for judgment of acquittal on all counts and the trial judge denied the motion. After appellant presented his case, he renewed his motion for judgment of acquittal. In response, the trial judge granted the motion with respect to the disorderly conduct charge but gave no reason for his ruling. Appellant’s counsel submitted a proposed jury instruction on obstruction of justice and hindering a police officer.

The trial court, however, refused to propound the proposed instruction in its charge to the jury and, instead, read a different version. Appellant’s counsel excepted to the trial court’s refusal prior to the reading of the jury instructions. With regard to the charge of second degree assault, the trial judge instructed the jury as follows: The [appellant] is charged with the crime of assault. Assault is causing offensive, physical contact to another person.

In order to convict the [appellant] of assault, the State must prove the following: that the [appellant] caused offensive, physical contact with or physical harm to Officer Corridean, that the contact was the result of an intentional or reckless act of the [appellant] and not accidental, and that the contact was not consented to by Officer Corridean or not legally justified. During his closing argument, appellant’s counsel stated: Officer Corridean put the dog in his face and said if he didn’t shut up, he was going to have the dog attack him. That fits the same pattern with my client that Officer Corridean doesn’t think people should have the first amendment right to- express their opinions about dubious police conduct, and he will use force to repel that. Why does he do that?

Why does he have to do that? Because he’s a bully; because he’s abusing his power, that is why.... During the State’s rebuttal closing argument, the following colloquy occurred: ⁶¹⁹ [PROSECUTOR]: Want to know who the bully is? That is the bully right there.

That is the bully. The man who steals people’s cars with a deadly weapon, that is the bully, that [appellant], [APPELLANT’S COUNSEL]: Objection. THE COURT: Sustained. You are to strike that from your memory and not consider that comment in your deliberations in this case.

Following the trial judge’s curative instruction, appellant’s counsel made no further objection and did not request a mistrial, any further cautionary instruction, or any other relief. STANDARD OF REVIEW In determining whether sufficient evidence was presented at trial to support a conviction, we will consider whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); See Pendergast v. State, 99 Md.App. 141 , 636 A.2d 18 (1994). LEGAL ANALYSIS I Contending that the theory of the prosecution’s case is flawed and the evidence presented at trial was insufficient to support his convictions, appellant posits: This flaw comes from two undisputed facts: (l)[a]ll of the charges against [appellant] relate to his encounter with [Officer] Corridean in and around the property of [appellant’s] parents on December 31, 1999[;] (2)[s]aid encounter arose entirely out of [Officer] Corridean’s attempt to place [appellant’s] younger brother and another juvenile under arrest for alleged Article 27 alcohol beverage violations. ⁶²⁰ These undisputed facts undermine the government’s proof because [Officer] Corridean had no legal authority to arrest the juveniles in question for the possession of alcohol while being under the age of [twenty-one]. Appellant postulates that the charge of hindering and obstructing is the lynch pin upon which all of the remaining charges are predicated.

But for the hindering charge, he intimates, there would have been no impetus for the subsequent actions of the two antagonists. In other words, the alleged unlawful conduct with which appellant was charged was causally related to the initial actions of Officer Corridean, unlike an officer’s investigative role in the enforcement of laws which have already been violated. We begin by observing that it cannot be disputed that Officer Corridean’s attempt to arrest the juveniles was in violation of Maryland law. We decide this case by answering the questions, “What constitutes ‘lawful performance of a police officer’s duties’ and, where such performance is unlawful, what responses does the law recognize as justifiable?” A. Intentionally and Knowingly Hindering and Obstructing A Police Officer in the Lawful Performance of His Duties We are bound, in the present case tried to a jury, to take as true that version of the facts most favorable to the prevailing party in this case — the State.

State v. Funkhouser, 140 Md.App. 696 , 782 A.2d 387 (2001). Accordingly, we accept as true the following testimony of Officer Corridean: [WITNESS]: There were two juveniles, one black male, one white male. They were positioned on the public sidewalk with a 22-ounce bottle of Miller Genuine Draft positioned between their feet. [PROSECUTOR]: When you saw them with the beer, the 22-ounce Miller Genuine Draft— [WITNESS]: Yes, sir. ⁶²¹ [PROSECUTOR]: — what, if anything, did you do? [WITNESS]: I got out of my car, instructed them to come to my vehicle. [PROSECUTOR]: You pull[ed] up right on the curb, right next to them? [WITNESS]: Yeah, about three feet from them. [PROSECUTOR]: Okay. [WITNESS]: Instructed them to come to my vehicle; told them they were both under arrest. [PROSECUTOR]: Okay. And what happened next? [WITNESS]: I placed them on my vehicle in between the sidewalk and my driver’s side of the car, which is, I guess, about three feet between the curb and my vehicle. [PROSECUTOR]: Did you instruct either or both of them to kneel? [WITNESS]: One.

I placed the black male on rollerblades on his knees because he had rollerblades and his feet would have slipped from under him and he would have fell [sic]. So I placed him on his knees. [PROSECUTOR]: Okay. What about the other gentleman? [WITNESS]: I believe he stayed on his feet. [PROSECUTOR]: Okay. And did you talk to them before you made your decision to arrest them? [WITNESS]: Just told them they were under arrest. [PROSECUTOR]: Okay.

And what were you going to do at that point? [WITNESS]: I was going to handcuff them. [PROSECUTOR]: All right. And what happened next? [WITNESS]: Since I have a canine in my car I cannot transport, so I then called for another unit to come down to transport them so we could process them. As soon as I reached back to get my handcuffs, the [appellant], positioned to my right — I was unaware of him even approaching me — but then come back, pushed me in the back. I turned around. ⁶²² [PROSECUTOR]: ...

You obviously were shoved in the back. You didn’t see who shoved you? [WITNESS]: No, I did not. [PROSECUTOR]: Okay. Then what did you do? [WITNESS]: Turned around. That’s when he made the statement, [“W]hat the fuck’s up with my brother[?”].

I said, [“Y]ou need to back up. They’re under arrest^”] [PROSECUTOR]: When you turned around and saw the person, who did you see? Please describe him by an article of clothing and point to him. [WITNESS]: The [appellant] positioned to my right, in the tan suit, dark hair. [WITNESS]: I told him to back up; that they were under arrest. [PROSECUTOR]: The juveniles were under arrest? [WITNESS]: That’s correct. [PROSECUTOR]: Okay. [WITNESS]: He stated, [“F]uck you.[”] He drew a line with his foot. He said, [“N]ow I’m in my yard, motherfucker^”] or something to that effect. [PROSECUTOR]: All right.

And so when he — you say he drew a line in the sand? [WITNESS]: On the — like where the grass and the sidewalk meet. [PROSECUTOR]: All right. Now, when he did that did he back up into a yard, or did he just stay right there? [WITNESS]: He was on the sidewalk. I was on the street. We were about two feet from each other.

He took ⁶²³ about a foot step back and drew a line right at where the grass and the sidewalk meet. [PROSECUTOR]: So he stepped off the sidewalk into the grassy part of the yard? [WITNESS]: That’s correct. [PROSECUTOR]: All right. So then what happened next after he drew the line in the sand, on the grass? [WITNESS]: I instructed him a second time. Like I said, he made some obscene gesture; said he was under arrest. And when I reached for him, he assaulted me a second time.

He pushed off my left hand. I deployed my department pepper spray, at which time he took off running through the yard. I’ve already told him he was under arrest. So my attention was distracted from the two on my vehicle now.

I went after him. He [was] running through the yard. And the two that were on my car that were supposed to be taken into custody, they then ran from my car. Maryland Ann.Code (1996 Repl.Vol.), art. 27, § 400A prohibits the use and possession of alcohol by a person under the age of twenty-one, except under limited circumstances.

Maryland Ann.Code (2001 Supp.), art. 27, § 402 sets forth the punishment for violations of § 400A. Section 402 provides, in pertinent part: (a) Person under 18. — Any person under the age of 18 years who violates any provision of this subheading shall be issued a citation by a police officer authorized to make arrests and shall be subject to the procedures and dispositions provided in Title 3, Subtitle 8 of the Courts Article. In In Re Albert S., 106 Md.App. 376, 395-98 , 664 A.2d 476 (1995), we held that, in the absence of any breach of the peace, a police officer’s arrest of a minor for a violation of art. 27, § 400A was unlawful. In that case, the sole ground for the ⁶²⁴ arrest was the officer’s belief that the appellant was a minor in possession of alcohol, an act prohibited by art. 27, § 400A.

The suspect, a minor, resisted the officer’s arrest and was charged with assault. In the proceedings in juvenile court, the appellant was found to be delinquent in that he committed an assault on the officer. In reversing the conviction, we held that [a] violation of § 400A is deemed to be a civil offense, [pursuant to] art. 27, § 403(a), and the maximum fine for a first-time offender is $500. Art. 27, § 403(f)(1).

At the time of the arrest, [the arresting officer] did not have probable cause to believe that any other offense had been committed. Consequently, the officer could do nothing more than issue a citation, art. 27, § 408(b)(1), and the arrest at issue here was unlawful. Id. at 395-96, 664 A.2d 476 (citation omitted). In the case at hand, no evidence was presented that the two juveniles were breaching the peace when they were accosted by Officer Corridean.

Further, Officer Corridean had no reason to believe that the two had committed another offense. After observing the two juveniles in violation of § 400A, Officer Corridean testified that he “[instructed them to come to [his] vehicle [and] told them they were under arrest,” at which point he attempted to handcuff the two juveniles. It was then, according to Officer Corridean, that appellant forcibly intervened. In Barrios v. State, 118 Md.App. 384, 403 , 702 A.2d 961 (1997) (citing Cover v. State, 297 Md. 398, 413 , 466 A.2d 1276 (1983)), we set forth the elements of the crime of intentionally and knowingly obstructing and hindering a police officer in the performance of his or her duties — (1) a police officer engaged in the performance of a duty, (2) an act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of a duty, (3) knowledge by the accused of facts comprising element (1), and (4) intent to obstruct or hinder the officer by the act or omission constituting element (2). ⁶²⁵ Appellant was charged with obstructing and hindering an officer in the lawful performance of his duties.

In Cover v. State, supra, the Court of Appeals addressed the question of whether one is guilty of hindering when he or she alerts the target of an investigation or surveillance that a continued course of conduct may result in apprehension and prosecution. After discussing the quandary in attempting to draw a distinction between a warning given in order that the commission of a crime may be suspended while there is danger of detection and one which may be given in order that the commission of a crime may be postponed until after the danger of detection has passed, the Court reiterated the elements of the offense: The court set forth three questions which must be affirmatively answered to establish the offense: “(1) Was there any obstruction of a constable?”; “(2) Was the constable acting lawfully in the execution of his duty?”; and “(3) Was the obstruction intended to obstruct the constables in the execution of their dut[ie sj?” Id. at 412, 466 A.2d 1276 . Moreover, in discussing what constitutes “duties,” the Court of Appeals, in Cover, 297 Md. at 413, n. 6 , 466 A.2d 1276 citing Gibbons, The Offense of Obstruction: (Obstructing a Constable — The Emergence of a New Duty to Co-Operate With the Police (1983) Crim. Law Rev. 21, 25, penned the view expressed in said treatise that [a]ll these duties [of an officer] are stated at a rather abstract level and do not stipulate particular courses of action so, provided that the means adopted do not in themselves break the law, it will be difficult to establish that any action taken by a constable is outside his [or her] duty.

Indeed, because the constable’s function is defined in terns of these general duties, doing what constables (usually police officers) lawfully do will be in the execution of his [or her] duty and this will encompass the practical lessons of effective policing drawn from experience and accumulated wisdom. ⁶²⁶ (Emphasis added.) Based on the excerpt of Officer Corridean’s testimony, his actions in arresting the two juveniles were unlawful. Our decision in Glover v. State, 88 Md.App. 393 , 594 A.2d 1224 (1991), is instructive as to intervention by a third party. In that case, we considered the right of a third party to intervene prior to the illegal arrest of a suspect. Answering Glover’s claim that the officer’s conduct was not within the scope of his duties, we said: Nor was appellant’s hindering of the officer justified even if the underlying arrest was illegal.

The crux of appellant’s claim to the contrary is the argument that the officer, if making an illegal arrest, was not performing a duty. There is no Maryland law directly on point. It is clear, however, that a police “duty” sufficient to trigger a hindering charge need not be an arrest. Moreover, in Sibiga v. State, 65 Md.App. 69, 76 , 499 A.2d 484 (1985)[,] we upheld a hindering conviction even though the defendant claimed that he had not hindered the police in the performance of any lawful duty.

Sibiga obstructed and hindered police officers who, acting pursuant to a writ of possession, sought to evict him from his home. Because the effect of the writ had been stayed by the circuit court, Sibiga claimed it gave the officers “no legal right to move him from his house” and thus his resistance could not be hindering. Although we did not elaborate on the extent of police officers’ “duty[J” we concluded that there was “ample evidence” that the police were “engaged in the performance of a duty” in executing this writ. (Citations omitted.) Citing United States v. Heliczer, 373 F.2d 241 (2nd Cir.), cert. denied, 388 U.S. 917 , 87 S.Ct. 2133 , 18 L.Ed.2d 1359 (1967), which considered a violation of 18 U.S.C. §§ 11 prohibiting resistance, opposition, or interference with federal agents while an agent is “engaging in ... the performance of his [or her] official duties,” we observed in Glover : ⁶²⁷ [Ajppellant assumes that the scope of the agents’ official duties is co-extensive with their power to arrest.

But this is not so.... “Engaged in performance of official duties” is simply acting within the scope of what the agent is employed to do. The test is whether the agent is acting within that compass ,pr is engaging in a personal frolic of his [or her] own. It cannot be said that an agent who had made an arrest loses his [or her] official capacity if the arrest is subsequently adjudged to be unlawful. Glover, 88 Md.App. at 405 , 594 A.2d 1224 (citation omitted).

The Glover Court looked to decisions from several sister jurisdictions deemed to be instructive: In State v. Biller, 5 Conn.App. 616 , 501 A.2d 1218 (1985), certif. denied, 199 Conn. 808 , 506 A.2d 146 , cert. denied, 478 U.S. 1005 , 106 S.Ct. 3296 , 92 L.Ed.2d 711 (1986)[,] the court considered the precise question presented here, i.e., whether a police officer is performing an official duty, sufficient to support a hindering charge, when making an illegal arrest. The Biller court held that he was, reasoning that an officer is acting “in the performance of his [or her] duties” if he [or she] is “acting under a good faith belief that he [or she] is carrying out that duty, and if his [or her] actions are reasonably designed to that end.” Id. 501 A.2d at 1220 . “[T]he test is whether the officer is acting in good faith within the scope of his [or her] duties as an officer or is pursuing a personal intent or frolic pf his [or her] own.” Id. at 1221. See also State v. Pembaur, 9 Ohio St.3d 136 , 459 N.E.2d 217 , cert. denied, 467 U.S. 1219 , 104 S.Ct. 2668 , 81 L.Ed.2d 373 (1984) (“absent bad faith on the part of a law enforcement officer, an occupant of business premises cannot obstruct the officer in the discharge of his [or her] duty, whether or not the officer’s actions are lawful under the circumstances.”); State v. Mulvihill, 57 N.J. 151 , 270 A.2d 277, 280 (1970) (an officer is “acting in the course of his [or her] duty, even though the arrest is illegal.”). Glover, 88 Md.App. at 405-06 , 594 A.2d 1224 (footnote omitted). ⁶²⁸ In Glover , we held that a third party may not intervene to prevent the arrest of a suspect by a police officer, as long as the arresting officer is acting under a good faith belief that he or she has the authority to arrest the suspect and is not on his or her own “personal frolic”.

Id. at 406 , 594 A.2d 1224 (citations omitted). Writing that the police qfficer “act[ed] in the performance of an official duty” at the time of appellant’s intervention, we affirmed the trial court’s convictions of Glover as to battery and hindering a police officer in the performance of his or her duties. Id. at 395 , 594 A.2d 1224 . In Glover , we lifted from State v. Biller, supra, language of the Connecticut appellate court which provided guidance as to what constitutes “in the performance of [a police officer’s] duties” upon a charge of interference with the officer in the performance of those duties.

The interference charged had been the action of Biller in tearing up and secreting in his pockets a retainer for Biller’s services as a public adjuster which authorized him to perform services in connection with a house fire. Two arson control inspectors had approached Biller upon observing the owner sign the retainer agreement and, believing that he was no longer licensed to act as a public adjuster, arrested Biller for acting as a public adjuster without a license. Citing its holding in State v. Privitera, 1 Conn.App. 709 , 476 A.2d 605 (1984), the court concluded that “the legality of the police officer’s conduct is not an element of the crime defined by General Statutes § 53a-167a(a), and that, in a prosecution under that statute to the extent that the [S]tate’s case is based on the conduct of a police officer in making an arrest, by virtue of General Statutes § 53a-23 the illegality of that arrest is not a defense [to that charge].” Id., 719, 476 A.2d 605 . But even more so here, the defendant’s conviction pursuant to the same statute as in Privit-era bears no fundamental relationship to the legality of his initial arrest.

Rather, it is his conduct after arrest which supported this charge and is at issue. Biller, 5 Conn.App. at 620 , 501 A.2d 1218 . The appellate court of Connecticut ultimately recognized that whether the officer was acting in good faith was the ⁶²⁹ measure of whether he is acting “in the performance of his [or her] duties.” The court based its decision on the fact that the legality of the officer’s conduct is not an element of the crime under the relevant statute and that § 53a-23 of the Connecticut General Statutes provides that the illegality of the arrest is not a defense. In State v. Pembaur, supra, also cited by us as illustrative of what constitutes acting “in the performance of [an officer’s] duties,” the Supreme Court of Ohio considered the claims of appellee, a medical doctor, and his receptionist, who had closed and barred the door leading from the reception area of the medical center to prevent two deputy sheriffs and two Cincinnati police officers from serving capiases upon two employees of the medical center for failing to appear before a grand jury.

Citing its opinion in Columbus v. Fraley, 41 Ohio St.2d 173 , 324 N.E.2d 735 (1975), the court held that in the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by an authorized police officer engaged in the performance of his duties, whether the arrest is illegal under the circumstances. Pembaur, 9 Ohio St.3d at 138 , 459 N.E.2d 217 . Notably, the court’s holding regarding specifically prohibiting interference with a police officer ostensibly performing his or her duties, is based on policy considerations recognized in Fraley : In altering the common-law rule granting a person the right to resist an unlawful arrest, the Fraley court deemed it preferable, considering the crunch of modem society, to resolve questions concerning the legality of police conduct in the courts through peaceful means rather than on the street in potentially violent confrontation. Fraley is determinative in the present case.

Although defendant may well successfully challenge the use against him of any evidence obtained by the deputies in their search for defendant’s employees, defendant was not privileged to physically impede the deputies in their attempt to locate the subjects of the capiases. Pembaur, 9 Ohio St.3d at 138 , 459 N.E.2d 217 . Notably, the Pembaur court’s