Opinion
DOCKET NO. A-5485-11T2
07-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHALEKE A. FISHER a/k/a AMIR GINYARD, SALADEEN GINYARD and AMIR JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stacey E. Zyriek, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Maven and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-07-00742.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stacey E. Zyriek, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried before a jury, defendant Shaleke A. Fisher appeals following his conviction for second-degree eluding, N.J.S.A. 2C:29-2(b). Defendant was sentenced to seven years imprisonment. For the reasons that follow, we affirm.
I.
The following evidence was introduced at trial. On March 16, 2011, at approximately 2:30 a.m., Officer Stanley Pearson of the Scotch Plains Police Department was parked in his patrol car at a gas station at the intersection of Tower Road and Front Street. Officer Pearson testified he observed a vehicle traveling at a high rate of speed, which he clocked on his radar as traveling eighty miles an hour in a thirty-five-mile-per-hour zone. After Officer Pearson witnessed the vehicle drive through a red light, he pulled up behind the vehicle and activated his overhead lights. At this point, the vehicle turned onto a residential street and began to pull over. Rather than coming to a stop, the vehicle sped away at a high rate of speed.
Officer Pearson next witnessed the vehicle run a stop sign, and then another red light, before striking a utility pole. The driver regained control of the vehicle and continued driving. Officer Pearson continued his pursuit down several residential streets with his lights and sirens activated, reaching speeds of seventy miles per hour. During this continued pursuit, the vehicle continued to drive recklessly as it ran another stop sign, drove on the wrong side of the road, and sped through other residential areas. Eventually, the vehicle pulled into the driveway of a house on South Avenue.
Near the conclusion of direct examination, the video of the pursuit, as recorded on the video camera mounted in Officer Pearson's patrol car, was played for the jury, with the officer narrating.
Officer Pearson observed defendant drive the car behind the house, then run around the house to the front door. He ordered defendant to show him his hands several times, but defendant did not comply and instead proceeded to unlock the house door. Defendant looked in his direction and appeared to understand the order, but ignored it, and entered the house. At this time, Officer Pearson was seven feet away from defendant, and got a clear look at him at the door. Although it was dark outside, the officer's view was illuminated by the headlights of his patrol car. In court, Officer Pearson identified defendant as the person who ran to the front door and entered the house.
Once defendant entered the house, Officer Pearson radioed in the license plate of the subject vehicle, and received a photo of the registered owner of the vehicle, defendant, on the computer in his patrol car. Officer Pearson remained at the house for forty-five minutes and observed defendant looking out the window several times.
Officer Pearson then left the house to obtain an arrest warrant, and returned with several officers. Defendant was arrested at the house without incident and transported to the police station. Detective Mark Hampton testified he read defendant his Miranda rights, which defendant waived; defendant then gave a statement admitting he was the driver in question, and that he knew the officer was trying to pull him over. Detective Hampton testified defendant stated he was very intoxicated at the time, and had panicked after Officer Pearson activated his lights and siren. He further stated defendant gave a detailed account of the entire incident, substantially confirming the details of Officer Pearson's account. Defendant was not informed he could be charged with second-degree eluding.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the end of the State's case, defendant moved for entry of a judgment of acquittal, arguing the State did not prove beyond a reasonable doubt that he was the actual driver of the vehicle and that he committed the charged crimes. The judge denied the motion, concluding a jury could reasonably find defendant guilty of the charges beyond a reasonable doubt, giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom.
Before defendant testified, the judge conducted a Sands hearing to determine whether evidence of defendant's prior criminal convictions would be admissible for impeachment purposes pursuant to N.J.R.E. 609. Defendant argued his 1998, 1999, and 2001 convictions for assault and drug offenses should not be admitted because they were too remote in time. Defendant also requested that his 2002 and 2008 convictions for drug offenses be sanitized to only include the year and degree of crime. The court agreed the 1998 and 1999 charges would not be admissible, but ruled the 2001, 2002, and 2008 convictions for drug offenses would be admissible and declined to sanitize them.
State v. Sands, 76 N.J. 127, 144 (1978)
Defendant then testified, stating it was his wife's nephew, who drove the car with his friend during the incident in question. Defendant stated he lived with his wife and children, her father and her nephew. Defendant explained he gave a false confession to the police, accepting the blame because the nephew and friend were in a gang, and he feared gang retaliation on his life and the lives of his family.
Defendant asked for a cross-racial identification charge under State v. Cromedy, 158 N.J. 112 (1999), which the judge denied because the officer's identification was corroborated by defendant's self-incriminating statement to the police. The jury found defendant guilty of the eluding charge.
Defendant is African-American and Officer Pearson is Caucasian.
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This appeal ensued with defendant raising the following points for our consideration:
POINT 1: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT 2: THE TRIAL COURT ERRED BY PERMITTING DEFENDANT'S PRETRIAL STATEMENT TO BE USED AGAINST HIM AT TRIAL IN VIOLATION OF HIS MIRANDA AND FIFTH AMENDMENT RIGHTS [NOT RAISED BELOW].
POINT 3: THE TRIAL COURT ERRED IN RULING DEFENDANT'S PRIOR CONVICTIONS
ADMISSIBLE AGAINST HIM AT TRIAL.
POINT 4: IMPROPER COMMENT BY THE PROSECUTOR CAUSED AN UNFAIR TRIAL [NOT RAISED BELOW].
POINT 5: THE TRIAL COURT ERRED IN DENYING THE DEFENSE REQUEST FOR A CROSS-RACIAL CHARGE.
POINT 6: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
II
Defendant first argues that the trial court erred in denying his motion for acquittal. We disagree. When a motion is made at the close of the State's case, the trial court must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).
We have stated that "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case." Ibid. (citing Reyes, supra, 50 N.J. at 459).
N.J.S.A. 2C:29-2(b), in relevant part, provides:
Any person, while operating a motor vehicle on any street or highway in 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 . . . to a full stop commits a crime of the third degree; except that, a person"A person acts knowingly with respect to the nature of his [or her] conduct . . . if he [or she] is aware that his [or her] conduct is of that nature, or that such circumstances exist, or [she] is aware of a high probability of their existence." N.J.S.A. 2C:2-2b(2).
is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
Thus, a person may be found guilty of second-degree eluding only if the jury finds that his or her flight, or attempt to elude, created a risk of death or injury to any person. State v. Wallace, 158 N.J. 552, 560 (1999) (finding that "the statute was designed to punish those who elude the police and . . . whose unlawful conduct creates a possibility of injury to others[]"). Our Supreme Court has held a permissive inference may be established through evidence that defendant "violated one or more motor vehicle statutes" during the chase. Id. at 558-559.
Here, there was more than sufficient evidence to find that defendant was the driver of a car who eluded the police. Defendant admitted he was the driver and did not stop when signaled by the police. Also, Officer Pearson identified defendant as the individual he saw entering the house after the car chase came to an end. Officer Pearson had a clear look at defendant, illuminated by his car lights, as he stood a mere seven feet away from defendant at the front door of the house. Officer Pearson confirmed defendant's identity when he received a photo of the registered owner of the subject vehicle on the computer in his patrol car and recognized defendant as the person he saw run to the front door and enter the house.
There was also sufficient evidence to find defendant created a risk of death or injury. Here, the video tape retrieved from the patrol car's camera depicted defendant driving at speeds of over eighty miles per hour in a residential area. The video also showed the car running red lights and stop signs, swerving, driving in the wrong lane, and at one point hitting a pole. Given these facts, the trial court correctly found the jury could find defendant guilty of eluding and creating a risk of injury to others. Therefore, defendant's motion for judgment of acquittal was properly denied.
Defendant next argues the trial court erred by permitting his pretrial statement to be admitted at trial in violation of his Miranda and Fifth Amendment rights. Defendant further argues the waiver of his Miranda rights was involuntary because he was not informed of the charges he faced and because he feared gang retribution. We are not persuaded.
Waiver of the right to remain silent must be done "voluntarily, knowingly, and intelligently." Miranda, supra, 384 U.S. at 444, 88 S.Ct. at 1612, 16 L.Ed. 2d at 707. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). "A court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Galloway, supra, 183 N.J. at 654. "An involuntary confession can result from psychological as well as physical coercion." Ibid. Involuntary confessions require a showing of police conduct that put "very substantial psychological pressure on the defendant." Id. at 656; State v. Cook, 179 N.J. 533, 562-63 (2004).
Initially, the State notes the record does not reflect a request for a Miranda hearing, nor any objection to the introduction of defendant's statement. In fact, the Pretrial Memorandum, which defendant signed, states that no pretrial motions were requested. It is thus reasonable to infer that counsel saw no basis to object to the admission of defendant's statement.
As defendant failed to object to the admission of his statement to the police, we review the claimed error under the plain error standard, and may reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2. Regardless, we conclude defendant's Miranda rights were not violated. Defendant relies on State v. A.G.D., 178 N.J. 56 (2003), to support his claim that the waiver of his Miranda rights was not knowing and voluntary. In A.G.D., the Court found the defendant had been misled by the police because the police did not tell him there was an arrest warrant issued against him and, thus, was unaware he was a suspect before waiving his Miranda rights. Id. at 68. The Court held police are required to inform "a suspect that a criminal complaint or arrest warrant has been filed or issued." Id. at 68-69. Here, defendant was aware an arrest warrant had been issued against him since the police had already entered his home and arrested him. Additionally, defendant was arrested within hours after he committed the offense, not days or months later. The facts demonstrate defendant was aware of the reason for his arrest and that he was a suspect. While the record does not reflect that defendant was advised of the specific charges he faced, he certainly was not misled. Accordingly, defendant's reliance upon A.G.D. is misplaced.
Defendant next argues he felt the need to give dishonest testimony and incriminate himself because he feared gang retribution, and was thus subjected to coercion, overbearing his will. However, the "overborne will" standard refers to police conduct during interrogation, not outside factors. Even were defendant truly threatened by gang activity, this does not affect the admissibility of the evidence because it does not relate to police conduct during the interrogation. The record clearly shows defendant received and understood his Miranda rights. Thus, defendant was neither improperly coerced nor misinformed, and his statement was properly admitted at trial.
Defendant also argues the trial court improperly denied his request for exclusion and sanitization of his prior convictions. We disagree.
N.J.R.E. 609 provides that the conviction of a witness shall be admitted for the purpose of affecting credibility unless excluded by the judge as remote or for other causes. Whether criminal convictions of a testifying defendant are admissible to impeach his or her credibility is governed by the test set forth in Sands, supra, 76 N.J. 127. Under Sands, a court determining whether a prior conviction is admissible for impeachment purposes, "must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to the credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. A court's Sands ruling will not be reversed unless it is shown that the admission of the prior conviction constituted an abuse of discretion. State v. Jackson, 278 N.J. Super. 69, 79 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). There is a strong presumption in favor of admission and the defendant has the burden of proof to justify exclusion. Sands, supra, 79 N.J. at 144.
Here, the trial court did not abuse its discretion in determining the admissibility for impeachment purposes of defendant's prior convictions. There is no bright-line rule providing a length of time after which a prior conviction is automatically considered too remote. State v. Murphy, 412 N.J. Super. 553, 564 (App. Div. 2010). Generally, a conviction less than ten years old is admissible. See State v. Lagares, 247 N.J. Super. 392, 397 (App. Div. 1991), aff'd in part, rev'd in part, 127 N.J. 20 (1992). Where intervening convictions exist, convictions older than ten years may be admissible. Murphy, supra, 412 N.J. Super. at 564. Here, not only did the convictions occur within ten years of the subject offense, but there were also intervening convictions since the 2001 conviction. Therefore, we discern no mistaken exercise of the trial court's discretion in ruling the 2001, 2002, and 2008 convictions admissible.
Defendant's argument that the court was required to sanitize his convictions also lacks merit. When the defendant has "previously been convicted of a crime that is the same or similar to the offense" for which the defendant is on trial, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." State v. Brunson, 132 N.J. 377, 391 (1993). This process is called "sanitization." See State v. Hamilton, 193 N.J. 255, 267 (2008). Here, the court correctly found no need to sanitize the evidence since the nature of the crime of eluding is not similar to the drug offenses which resulted in defendants' 2001, 2002 and 2008 convictions.
Defendant next argues the prosecutor made an improper comment during his closing argument that caused trial error. In his summation, the assistant prosecutor asked the jury,
Do you think Stanley Pearson came in here with the motivation to lie to you, to deceive you, to frame Shaleke Fisher?Defendant argues this statement constitutes an impermissible expression of opinion by the prosecutor regarding the credibility of a witness, contrary to State v. Marshall, 123 N.J. 1, 154 (1991). We are not persuaded.
Because if you believe Officer Pearson got up and lied to you, find him not guilty, acquit him. However, if you believe the officer told the truth, and the officer
identified him, and if you take the defendant at his word at the police station, then you must convict him.
Egregious prosecutorial misconduct can be grounds for reversal when it deprives a defendant of a fair trial. State v. Smith, 212 N.J. 365, 404 (2012). An appellate court must consider whether defense counsel made "timely and proper objections to the improper remarks[,]" and "failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. Statements by the prosecutor about a police officer's credibility are "wholly inappropriate," especially statements that suggest police officers will not lie. Id. at 85; see, e.g., State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994)(holding misconduct where the prosecutor told the jury that police officers have no motive to lie); State v. Jones, 104 N.J. Super 57, 65 (App. Div. 1976) (instructing jury to accept police testimony just because the witness was a police officer was improper), certif. denied, 7 3 N.J. 67 (1977).
Defendant failed to raise an objection to the statement at trial, which suggests the remarks were not prejudicial. See Frost, supra, 158 N.J. at 83-84. As defendant failed to object to the statement, we review the claimed error under the plain error standard, and may reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2.
We note the prosecutor did not comment on whether Officer Pearson was credible. The remarks instead highlighted the decision before the jury, whether or not the person Officer Pearson saw run to the front door, and enter the house, following the high-speed chase, was defendant. The prosecutor did not give a personal or official opinion to bolster the officer's credibility or that of police officers in general. We are not persuaded this was prosecutorial misconduct.
Defendant also argues the court erred in denying the requested cross-racial identification charge, since defendant is African-American and Officer Pearson is Caucasian, relying on Cromedy, supra, 158 N.J. at 132. We disagree.
"A cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Ibid. Here, the trial court concluded that a cross-racial identification charge was not required because defendant's statement to the police provided independent corroboration that he was the driver. Moreover, courts have recognized that trained police officers are less likely than lay witnesses to misidentify suspects as they have "heightened awareness of the need for proper identification of persons . . . ." State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997 ) .
Defendant's statement to Detective Hampton meets the sufficient independent evidence requirement to deny a cross-racial identification charge. Additionally, the identifying witness was a trained police officer, who clearly observed defendant for several seconds. Under these circumstances, we conclude the judge did not err in failing to provide a cross-racial identification charge.
Finally, defendant argues that the seven-year term of imprisonment he received for second-degree eluding was excessive. In light of defendant's extensive prior criminal record, including six indictable convictions and his eligibility for an extended term, this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION