Opinion
DOCKET NO. A-1751-10T2
02-05-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LOUIS A. CLARK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and St. John.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-09-1565.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief). PER CURIAM
After a jury trial, defendant Louis Clark was convicted of third-degree eluding, N.J.S.A. 2C:29-2(b). Defendant was sentenced to three years probation conditioned upon 180 days incarceration, a six-month suspension of driving privileges, and mandatory fines. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm defendant's conviction.
I.
The trial record reveals that on March 3, 2007, defendant failed to abide by law enforcement orders and led police on an hour-and-a-half car chase through New Jersey, finally ending in Pennsylvania. The offense was precipitated when defendant stopped his Toyota Camry in the left lane and approached Officer Erik Larsen of the Seaside Park Police Department's patrol car screaming. Larsen then ordered defendant to move his car to the center median, which he did, and then he exited his vehicle screaming again. Larsen asked defendant to identify himself and also the owner of the Camry after defendant admitted the vehicle was not his. Defendant refused to answer.
Defendant ran back to and got in the driver's seat of his car after being advised he was under arrest, and then reached into the backseat. Larsen ordered defendant to show his hands. Defendant ignored his orders and reached for something under his jacket in the backseat. In response, Larsen drew his weapon and ordered defendant to show his hands a second time. Defendant then removed his hands and it became clear he was holding a cell phone.
Thereafter, Larsen holstered his weapon, ordered defendant out of the vehicle, and advised him he was under arrest. Defendant instead drove away. Defendant claims he left because he was "scared." He stated:
I didn't know what they were going to do to me. I knew that they were going to do something to me, whether they wanted to kill me, whether they wanted to beat me up real bad, I just tried to do the best thing that I thought was good for me . . . , and I called 911 and 911 they told me that they don't handle police disputes. I called my mother because I didn't know what was going to happen to me.
Larsen called dispatch and began following defendant in his patrol car with his lights and sirens activated. He observed defendant commit numerous moving violations including running several red lights, passing cars on the right and in the roadway shoulder, and failing to signal. The chase continued through many municipalities including Seaside Park, Berkley, Toms River, Lakewood, Howell, Freehold, and Manalapan. Defendant was ultimately stopped in Bucks County, Pennsylvania by several officers including Larsen, New Jersey State troopers, and Pennsylvania State troopers.
On July 30, 2007, defendant pleaded guilty in Bucks County to fleeing or attempting to elude an officer, reckless endangerment of another person, unlawful restraint, false imprisonment, resisting arrest, reckless driving, and careless driving. Defendant was sentenced to imprisonment for a minimum of five days and maximum of twenty-three months.
On September 11, 2007, an Ocean County grand jury returned Indictment No. 07-09-1565 charging defendant with eluding in the second degree, N.J.S.A. 2C:29-2(b). On November 7, 2008, defendant appeared with counsel in Howell Township municipal court and pleaded guilty to several traffic violations including reckless driving and failure to stop. He was fined $599.
On April 9, 2009, defendant moved to dismiss his eluding indictment on the basis that it was barred under double jeopardy. The motion was denied, and, after a four day jury trial, defendant was convicted of third-degree eluding. N.J.S.A. 2C: 29-2(b). This appeal ensued.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE TRIAL IN THIS MATTER WAS BARRED BY THE DOUBLE JEOPARDY CLAUSES OF THE FEDERAL AND STATE CONSTITUTIONS.
POINT II
THE TRIAL AND RESULTING CONVICTION VIOLATED THE STATE'S DOCTRINE OF FUNDAMENTAL FAIRNESS.
POINT III
THE TRIAL COURT IMPROPERLY DID NOT DISMISS THE INDICTMENT IN NEW JERSEY PURSUANT TO N.J.S.A. 2C:1-3f.
POINT IV
THE TRIAL COURT ERRONEOUSLY FAILED TO GRANT DEFENDANT'S REQUEST TO CHARGE DURESS AS AN AFFIRMATIVE DEFENSE.
POINT V
THE JURY INSTRUCTIONS WERE DEFICIENT REGARDING THE ELEMENTS OF THE ELUDING OFFENSE.
POINT VI
THE TRIAL COURT ERRED BY NOT CHARGING RESISTING ARREST AS A LESSER-INCLUDED OFFENSE OF THIRD DEGREE ELUDING.
POINT VII
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
II.
We start our analysis with defendant's principal argument, that his trial for eluding was barred under double jeopardy. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. "The parallel provision in the State Constitution is article I, paragraph 11, which provides: '[n]o person shall, after acquittal, be tried for the same offense.'" State v. DeLuca, 108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed 2d 358 (1987).
When reviewing double jeopardy claims, the issue is "'whether the second prosecution is for the same offense involved in the first.'" State v. Yoskowitz, 116 N.J. 679, 689 (1989) (quoting DeLuca, supra, 108 N.J. at 102). In State v. Salter, 425 N.J. Super. 504, 518-19 (App. Div. 2012), we explained:
The longstanding rule for determining whether a second prosecution is for the "same offense" was expressed in Blockburger v. United States, 284 U.S. 299, 52 S. Ct 180, 76 L. Ed. 306 (1932). In that case, [t]he Court stated that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. . . .
[O]ur Supreme Court slightly expanded the analysis, noting that the question is whether the evidence actually used to establish guilt in the first prosecution is identical to that that will be used in the second prosecution. . . . the Court established that a second prosecution will be barred if either the "elements" test or the "evidence" test is satisfied. If the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred.
[Internal citations and quotations omitted.]
Here, defendant's municipal convictions do not bar his eluding prosecution under double jeopardy. We acknowledge that the evidence in municipal court was sparse since he pleaded guilty, while the evidence used to convict defendant at trial was largely based on Larsen's testimony. As to the offenses themselves, there is another element to be proven for eluding, N.J.S.A. 2C: 29-2(b), that is not needed for a reckless driving conviction, N.J.S.A. 39:4-96, and that element is the refusal to adhere to commands of law enforcement personnel. This case is similar to State v. Colon, 374 N.J. Super. 199 (App. Div. 2005), where the defendant stole a car and hit a bicyclist while attempting to elude police. There we held that the defendant's convictions in Superior Court for eluding, aggravated assault, and theft, were not barred under double jeopardy because of the defendant's plea of guilty in municipal court to charges which included reckless driving. Id. at 218. In Colon, supra, 374 N.J. Super. at 219, we noted:
[T]he motor vehicle statue prohibiting reckless driving, albeit quasi-criminal in nature, and the criminal statute making eluding a crime of either the second or third degree were intended to prevent substantially different harms or evils. To be sure, both focus on reckless driving and the dangers posed by such conduct. However, the eluding statute has the additional purpose of requiring adherence to the commands of law enforcement personnel,
thereby enhancing their investigatory, crime prevention and other functions.
Nor does defendant's convictions in municipal court for his failure to stop, N.J.S.A. 39-4:144, and unsafe lane change, N.J.S.A. 39:4-88(b), prohibit his eluding conviction. The offenses are distinct in that eluding punishes a defendant who drove away from an officer who signaled him to stop, while failure to stop punishes a defendant who fails to stop at a stop sign and unsafe lane change punishes a defendant who changes lanes without first ascertaining that the movement can be made with safety.
Defendant next argues that his eluding conviction violates the doctrine of fundamental fairness. "The doctrine of fundamental fairness 'serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily.'" State v. Maisonet, 166 N.J. 9, 20 (2001) (quoting Doe v. Poritz, 142 N.J. 1, 108 (1995)). Given that the eluding indictment preceded defendant's municipal court appearance and the Ocean County prosecutor's office was not notified about the municipal proceeding, the eluding prosecution does not violate fundamental fairness. Moreover, we have been presented with no evidence that would support the contention that defendant, by pleading guilty to the municipal charges, reasonably expected that he would have resolved liability for eluding the police.
Defendant argues, for the first time on appeal, that the trial court improperly failed to dismiss his indictment pursuant to N.J.S.A. 2C:1-3(f). We conclude that it did not.
"[F]or dismissal of an indictment to be sanctioned under [N.J.S.A. 2C:1-3(f)], the court must determine both that: (1) the defendant is being prosecuted for an offense based on the same conduct in another jurisdiction; and (2) this State's interest will be adequately served by that prosecution." State v. Gruber, 362 N.J. Super. 519, 527 (App. Div.), certif. denied, 178 N.J. 251 (2003).
At defendant's trial, the court informed the jury that they were not to take into account any of defendant's actions in Pennsylvania. Proof of eluding in New Jersey therefore did not require proof of any conduct committed in Pennsylvania and was not based on the same conduct. While the Pennsylvania and New Jersey offenses were committed on the same day, there were separate elements and separate jurisdictions pertaining to each charge.
As to prong two, the range of the potential sentences in New Jersey and Pennsylvania differed. New Jersey's interest would not have been adequately served by dismissal of defendant's New Jersey indictment. In Pennsylvania, defendant served five days before being released on parole. In New Jersey, defendant faced ten years imprisonment for second-degree eluding and was sentenced for third-degree eluding to three years probation conditioned upon 180 days incarceration.
Defendant further argues that his conviction must be reversed because the trial court's jury instructions were deficient in that the judge failed to charge duress as an affirmative defense, resisting arrest as a lesser-included offense, and improperly instructed on the charge of eluding. We disagree.
In order to avail himself of the affirmative defense of duress, a defendant must prove that he succumbed to criminal activity because of the "excusing condition," and that his "level of resistance to the particular threat [met] community standards of reasonableness." State v. B.H., 183 N.J. 171, 192-93 (2005). Defendant argues that the he was put under duress by Larsen when, after defendant reached in the back seat, the officer drew his gun. In this situation, it is clear that an appropriate excusing condition was not present and a person of reasonable firmness would be able to resist eluding the police when confronted with a reasonable order by the officer. The trial judge did not err in denying defendant's request to charge the jury with the affirmative defense of duress.
It was also not error when the trial judge failed to instruct the jury on resisting arrest. In State v. Goodman, 415 N.J. Super. 210, 235-36 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), we addressed a trial judge's obligations with respect to jury charges concerning a lesser-included offense, as follows:
When a defendant requests the trial judge to charge a lesser-included offense, "the court is obligated to examine the record and determine whether a rational basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense." State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003). See also N.J.S.A. 2C:1-8(e); State v. Denofa, 187 N.J. 24, 42 (2006) ("[C]ourts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted.")."In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002).
Here, defendant did not request the trial judge charge the lesser-included offense of resisting arrest. In the absence of this request, the issue becomes whether the record clearly indicated a resisting arrest charge was warranted. Denofa, supra, 187 N.J. at 42. It did not.
To satisfy the mens rea element of resisting arrest, the State would have to prove beyond a reasonable doubt that it was defendant's conscious object to prevent his own arrest. State v. Ambroselli, 356 N.J. Super. 377, 384-385 (App. Div. 2003). The mens rea element of eluding is satisfied by proof that the defendant "fle[d] by motor vehicle from a person who the perpetrator knows to be a law enforcement officer." State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). In light of Larsen's testimony, there was no rational basis for the jury to conclude that defendant had the conscious object to prevent his own arrest but was unaware that Larsen was a police officer. Further, defendant led police on an hour-and-a-half car chase before finally pulling his car over. We are therefore satisfied that the evidence here did not provide a rational basis for the jury to acquit on the eluding charge but convict on the lesser-included charge.
Moreover, the trial judge did not err when he instructed the jury on the eluding charge. Defendant argues that the court insufficiently defined the "knowingly flees or attempts to elude police" element. We find this argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments. The judge charged the jury as follows:
Any person, while operating a motor vehicle on any street or highway in this State, as defined pursuant to section 2 of 1995 Section 401 12:7-71, on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits the crime of eluding.The judge then discussed the six elements that the State must prove beyond a reasonable doubt to convict defendant of eluding. Finally, we emphasize that this jury charge was identical to the Model Jury Charge for eluding. See Model Jury Charge (Criminal), "Eluding an Officer [Second and Third Degree]" (2004).
Defendant finally argues that his sentence was manifestly excessive. When a trial court follows the sentencing guidelines, a reviewing court should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shocks the judicial conscience," State v. Roth, 95 N.J. 334, 364 (1984), an appellate court is bound to affirm. State v. O'Donnell, 117 N.J. 210, 215 (1989). N.J.S.A. 2C:43-6(a)(3) provides for a term of incarceration between three and five years for conviction of eluding in the third degree.
In this case, the trial judge did not impose an excessive sentence upon defendant. The trial court properly balanced the mitigating and aggravating factors, taking into consideration defendant's extensive criminal record, N.J.S.A. 2C:44-1(a)(3), and the temporal and spatial elements of defendant's car chase, N.J.S.A. 2C:44-1(a)(1). In light of the nature of defendant's crime and his criminal record, the sentence of three years probation conditioned upon 180 days incarceration does not shock the judicial conscience. O'Donnell, supra, 117 at 215.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.S.A. 2C:1-3(f) states:
Notwithstanding that territorial jurisdiction may be found under this section, the court may dismiss, hold in abeyance for up to six months, or, with the permission of the defendant, place on the inactive list a criminal prosecution under the law of this State where it appears that such action is in the interests of justice because the defendant is being prosecuted for an offense based on the same conduct in another jurisdiction and this State's interest will be adequately served by a prosecution in the other jurisdiction.