Opinion
DOCKET NO. A-2124-10T1
03-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CORINTHIN L. MCDONALD, a/k/a CORINTHINAS MCDONALD, CORINTHIAS MCDONALD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0060. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). The opinion of the court was delivered by MAVEN, J.A.D.
An Essex County Grand Jury returned a six-count indictment against defendant Corinthin L. McDonald. Following a five-day trial in June 2009, a jury acquitted defendant of counts one through four, but found defendant guilty of third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five); and second-degree eluding an officer, N.J.S.A. 2C:29-2(b) (count six).
On August 28, 2009, the trial court judge sentenced defendant to five years in prison on count six and a consecutive three-year term on count five. In addition, the judge imposed all appropriate fines and penalties.
Defendant raises the following points on appeal:
POINT I
THE STATE ELICITED UNSUBSTANTIATED AND HIGHLY PREJUDICIAL TESTIMONY THAT THE DEFENDANT COMMITTED "CARJACKING," AND THAT AN "S.B.I. NUMBER" WAS ASSOCIATED WITH THE DEFENDANT, NECESSITATING REVERSAL. (Partially Raised Below).
A. Testimony Alleging That Defendant Committed a "Carjacking."
B. Testimony Associating Defendant With An S.B.I. Number.
POINT II
THE TRIAL COURT ERRED, TO DEFENDANT'S PREJUDICE, IN DELIVERING AN ELECTION CHARGE WITHOUT OBTAINING, OR EVEN SEEKING, THE DEFENDANT'S CONSENT. (Not Raised Below).
POINT III
THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE FOR RECEIVING STOLEN PROPERTY, RESULTING IN AN EXCESSIVE SENTENCE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
I.
We derive the relevant facts from the trial record. Defendant's arrest and subsequent convictions arose out of an incident occurring on June 14, 2008. Detectives Reginald Hudson and Philip Davis of the East Orange Police Department were conducting separate patrols in marked police vehicles. At approximately 5:00 p.m., the detectives received a radio dispatch to respond to the intersection of First Avenue and Warwick Street, where the occupants of a stolen black Dodge Ram truck were in the process of stealing a blue Jeep Liberty. The detectives responded to the location, along with other officers, who traveled separately in an unmarked vehicle.
According to Detective Hudson, when the police arrived, the suspects in the blue Jeep Liberty drove away and were pursued by the unmarked police vehicle. Next, the black Dodge Ram truck slowly began to drive away. Rather than pursue the Jeep, Detective Hudson remained at the scene and spoke with a police dispatcher about the truck. The truck then accelerated away at a high rate of speed. As another police car blocked the intersection, the truck rammed that police vehicle and drove over its hood. Detectives Hudson and Davis then activated their lights and siren, and pursued the truck.
During the pursuit, the truck drove erratically, swerved in and out of traffic, disregarded traffic signals and signs, and increased its speed, as it sped down a pedestrian-lined street. Detective Hudson testified that eventually the truck started smoking, the tires began to deflate, and the truck began to slow down. Detective Hudson veered to the left to avoid hitting the truck, at which point the truck also veered to the left and struck Detective Hudson's police car. As the police car and truck slowed, the passengers in the truck jumped out and fled on foot. The driver of the truck attempted to jump out as well, but his foot became stuck between the two vehicles. When the driver eventually jumped out, he rested his hands on the hood of Detective Hudson's vehicle where he remained for several seconds. When the vehicles came to a complete stop, the driver re-entered the truck and fled through the passenger door.
Detective Hudson exited his vehicle, drew his weapon, and pursued the suspect on foot. As he gave chase, he saw something in the suspect's hand that he "knew to be a gun." Detective Davis also began to chase the suspect on foot. The suspect looked back and pointed the gun at Detective Hudson, who responded by firing one round at the suspect.
Detective Davis testified he heard Detective Hudson say "put down the gun" just before firing a round. The suspect then entered his view, at which point he saw a handgun in the suspect's right hand. He told the suspect to drop the weapon. Instead, the suspect raised the weapon to him, and he fired one round at the suspect. Neither he nor Detective Hudson struck the suspect with their rounds, and the suspect continued to run away.
Shortly thereafter, a silver car arrived at a nearby intersection. The fleeing suspect approached the vehicle, jumped into the driver's seat, moved the driver of the car over into the passenger seat, and sped away. The police were unable to stop the silver vehicle and apprehend the suspect.
The State played for the jury a redacted version of the dispatch tape containing radio transmissions made during this portion of the incident. The tape depicted the incident as it occurred, and was consistent with Detective Hudson's and Davis's testimony. The tape also contained a description by Detective Hudson of the fleeing suspect.
Following a Rule 104 hearing, the court ordered any reference to carjacking redacted from the tape.
In an effort to identify suspects from the June 14, 2008 incident, Detective Hudson went to the Newark Police Department to review a photo array. He identified an individual he believed was the driver of the black Dodge Ram truck. He later learned he had selected a photograph of defendant and that an arrest warrant had been issued.
Detective Davis also went to the Newark Police Department to review a photo array. He identified the suspect who pointed a gun at him, choosing the same picture identified by Detective Hudson. Detective Davis was also made aware that an arrest warrant was issued for defendant after the photo identifications were made by him and Detective Hudson.
Sergeant Ronald Watson of the East Orange Police Department testified regarding video recording technology in police vehicles. He explained that Detectives Hudson's and Davis's cars were equipped with the recording technology. However, on the day of the incident, no recordings from their cars were uploaded to the mainframe, and there was no evidence of tampering of the equipment. According to the sergeant, malfunctions were common and there had been a problem with the entire recording system on June 14, 2008.
Identification Officer Stephanie Nevels of the Newark Police Department testified she collected fingerprints from the hood of Detective Hudson's vehicle. She lifted numerous fingerprints, which she sent to the State Police for processing in the Automated Fingerprint Identification System (AFIS). One of the fingerprints yielded a potential hit. Based upon this hit, the State Police provided to her a "candidate list of suspects, S.B.I. numbers."
"S.B.I." refers to the State Bureau of Identification, which "functions as the central repository for the receiving, verifying, coding, processing, and dissemination of all criminal history record information utilized by criminal justice agencies for criminal justice purposes." IDENTIFICATION & INFORMATION TECHNOLOGY SECTION, http://www.njsp.org/divorg/admin/iits.html (last visited February 28, 2015).
At this point, the prosecutor asked permission to lead Officer Nevels through her testimony, as the prosecutor and the court did not want the jury to hear testimony about SBI numbers or where the fingerprint database came from. However, during cross-examination and redirect of Officer Nevels, SBI numbers were referenced four more times.
The State qualified Newark Police Officer Gary Robinson, over defendant's objection, as an expert in fingerprint comparison. He testified that he compared the candidate list that Officer Nevels received with a controlled print from defendant. Officer Robinson believed "within a reasonable degree of scientific certainty" that one of the fingerprints from the candidate list matched the fingerprint of defendant. After finding a match with defendant, he did not pursue any of the other fingerprints on the list of candidates.
Defendant has not challenged this ruling on appeal. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015) (issues not argued on appeal are deemed abandoned).
The owner of the Dodge Ram testified at trial. He stated he discovered his truck missing on June 13, 2008, at approximately 1:45 p.m. and reported the vehicle stolen from the area of Valley Street. He further indicated that he did not know defendant, and had not given him permission to use his truck.
After the State rested, the court questioned defendant as to whether he intended to testify. Defendant advised the court he did not intend to testify. Defendant presented no witnesses on his behalf.
II.
In his first point, defendant argues that references in the trial to a purported carjacking, and to an S.B.I. number associated with his name, were highly improper, and so prejudicial as to deprive him of his right to a fair trial. While we agree Detective Davis's second reference to "carjacking" was improper, we disagree that the reference was so prejudicial as to deprive defendant of his right to a fair trial. We conclude there was no error in permitting testimony related to an S.B.I. number associated with his name.
A.
Detective Hudson was the State's first witness. When he began to explain what he observed in relation to defendant's encounter with the silver vehicle, defense counsel immediately objected and requested a side bar conference. Counsel requested the court limit Detective Hudson's anticipated testimony to stating that "defendant entered the silver vehicle," without referencing "carjacking." The court acknowledged defense counsel's concerns and ruled that the police witnesses would be permitted to describe the underlying facts concerning the silver vehicle, and would be directed to avoid any reference to the word "carjacking." Detective Hudson completed his testimony without reference to the word "carjacking."
The next day, however, when Detective Davis took the stand, he referenced the word "carjacking" two times. The first reference occurred with regard to the initial dispatch report. Defendant did not initially object to this testimony. Nor does defendant challenge this reference on appeal. The second reference occurred when the prosecutor inquired whether the round he fired from his weapon struck defendant. Detective Davis responded, "I do not believe it did. I saw no traces of such and [defendant] continued running down Roseville Avenue until he got to the corner where he carjacked a vehicle." Defense counsel immediately objected to this testimony. At side bar, counsel noted that this was the second reference by Detective Davis to a "carjacking." The court agreed the use of the term "carjacking" was objectionable, but denied defense counsel's request for a mistrial. Instead, the court issued a curative instruction to the jury:
All right, ladies and gentlemen, you just heard Detective Davis testify that in his opinion a carjacking took place at the corner. There is no evidence in this case whatsoever that a carjacking took place. I don't have any problem with the detective testifying as to the facts, but now he's inserting into his testimony legal conclusions, issues about whether some other crime has been committed. None of which is before you, all right, ladies and gentlemen.Defendant did not object to the curative instruction.
So it's very important that you completely disregard the testimony that has just been given to you concerning some alleged carjacking which I am saying to you quite clearly is not before you. There is no issue whatsoever in this case concerning a carjacking and as a matter of fact, the Detective is making a legal conclusion [about a crime] this defendant has not been charged with . . . , there is no evidence in this case of such a crime, there is nothing for you to consider in this case with regard to a carjacking.
So although the statement was made, I'm going to ask you on your oath as jurors in the State of New Jersey to accept my instructions to you to completely disregard any testimony with regard to this alleged carjacking, all right, ladies and gentlemen? Thank you very much.
And Detective, again, please, I'm asking you to have no further testimony with regard to a quote carjacking.
Detective Davis resumed his testimony and, albeit without using the word "carjacking," on recross-examination described defendant entering the silver vehicle "in a fashion that appeared to be forceful." He repeated this description to the jury because defense counsel did not hear the response. Defendant did not object to this testimony.
In its final charge to the jury, the court reminded jurors that it had given a curative instruction, stating:
And ladies and gentlemen, I have given you a curative instruction on certain information that you heard in testimony and you are not to consider that. It is not evidence in this case and it must be disregarded by you.Once again, defendant failed to object to the court's final charge to the jury in this regard.
This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations.
Defendant now argues that references to carjacking during Detective Davis's testimony violated N.J.R.E. 404(b) and was so highly prejudicial that the judge's curative instruction and jury instruction were insufficient to redress the prejudice to defendant. The State contends the court properly cured any alleged errors in Detective Davis's testimony by immediately issuing a curative instruction and a final instruction to the jury. Because defendant failed to object to the language of the curative instruction and final jury charge, "we review the [instructions] for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126-27 (2011) (quoting R. 2:10-2).
Rule 404(b) states that evidence of other crimes is inadmissible:
to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b).]
In the case of improperly admitted evidence, the effect can generally be eradicated by an immediate and strong curative instruction to the jury to disregard the evidence. State v. Winter, 96 N.J. 640, 648 (1984).
The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.Similarly, "when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647.
[Id. at 646-47.]
In this case, the court had earlier ruled that there would be no reference to the word "carjacking" during the testimony of the State's witnesses in relation to defendant's conduct in entering the silver vehicle. When Detective Davis referred to "carjacking" in describing defendant entering the silver vehicle, defense counsel objected and the court immediately gave a curative instruction to the jury. The curative instruction was clear, in that it identified the offending statement and why it was improper, and firm. The instruction emphasized the importance of disregarding the improper testimony, and reminded the jurors that it was their duty to follow the judge's instructions. The instruction specifically directed the jury to only consider evidence about the offense in question.
Moreover, juries are presumed to understand and follow instructions. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom., Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). A party's failure to object to a jury instruction is presumed to reflect an assessment of the charge as unlikely to prejudice his or her case. See Macon, supra, 57 N.J. at 333-34. Accordingly, courts are generally reluctant "to reverse on the grounds of plain error when no objection to a charge has been made." State v. Weeks, 107 N.J. 396, 410 (1987).
Measured under these standards, the trial court did not commit reversible error when it denied defendant's request for a mistrial but instead elected to give a curative instruction, followed by renewed instructions to disregard this evidence in its final charge to the jury. Winter, supra, 96 N.J. at 646-67. Defendant has made no showing that this instruction failed to adequately remedy any perceived prejudice caused by the errant testimony. Accordingly, the court did not abuse its discretion when it elected to give a curative instruction rather than grant defendant's mistrial motion. Ibid.
Finally, even if we were to determine that the instruction was inadequate to cure the reference to carjacking, the error was harmless, and not clearly capable of producing an unjust result in light of the overwhelming evidence in the record of defendant's guilt. See Winter, supra, 96 N.J. at 649. First, there was the detectives' detailed testimony regarding the truck chase, the foot pursuit, and defendant's ultimate escape in the silver vehicle. Second, there was the photo identification of defendant by both detectives. Third, there was positive fingerprint evidence taken from the hood of the police car.
We now turn to Detective Davis's testimony that he saw defendant enter a "Nissan [-] type vehicle, four [-] door silver," that had stopped at the traffic light, "in a fashion that appeared . . . to be forceful." Defendant contends this testimony violated N.J.R.E. 404(b), as unduly prejudicial. We reject this contention.
Detective Davis's testimony describing his observation of defendant entering the silver vehicle is evidence intrinsic to the crime charged, eluding. State v. Rose, 206 N.J. 141, 179 (2011). Evidence is intrinsic to the crime charged if it: (1) "directly proves the charged offense," or (2) was "performed contemporaneously with" and "facilitate[d] the commission of the charged crime." Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).
Under N.J.S.A. 2C:29-2(b), a person "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 the act of eluding. Detective Davis's description of defendant entering the silver vehicle was, therefore, direct evidence, relevant to proving the charged offense. Rose, supra, 206 N.J. at 179. The testimony was also relevant to further explain the reason the police continued to pursue defendant. Consequently, measured under the plain error standard, there was no error, let alone plain error. R. 2:10-2.
B.
Defendant next argues that the multiple references to an S.B.I. number associated with defendant raised an inference that defendant was previously involved with law enforcement. Because defendant did not object at trial to the testimony concerning S.B.I. numbers, we measure this contention under the plain error standard. R. 2:10-2. Examined under this standard, we determine there was no error.
Officer Robinson's testified that anyone who has ever been fingerprinted for any purpose in New Jersey is in the S.B.I. database. In addition, the court, in its final charge, instructed the jury that fingerprints could be in the database for numerous reasons. The court stated:
Ladies and Gentlemen, there was testimony that the Newark Police Department and the New Jersey State Police had fingerprints of the defendant on file. You are not to consider that fact as prejudicing the defendant . . . in any way. The fact, that fact is not evidence that the defendant has ever been convicted or even arrested for
any crime and is not to be considered as such by you.We presume the jury understood and followed that instruction. State v. Mays, 321 N.J. Super. 619, 629 (App. Div.), certif. denied, 162 N.J. 132 (1999). Accordingly, the jury's consideration of this evidence was not clearly capable of producing an unjust result. See R. 2:10-2.
The fact that the Newark Police Department and the New Jersey State Police are in possession of a person's fingerprints does not mean that the person has a criminal record. Fingerprints come into the hands of law enforcement agencies from many legitimate sources. These include but are not limited to birth certificates, grade school child identification programs, military service, many forms of employment including municipal, county, state, and federal jobs, casino license applications, private security guard applications, firearms and liquor license applications, passport applications as well as other sources totally unconnected with criminal activity.
III.
In Point II, defendant argues for the first time on appeal that he was prejudiced by the trial court's instruction to the jury of his decision not to testify, without first seeking his consent. As this objection was not raised at trial, we must consider whether the alleged error amounts to plain error. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of a '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
After defense counsel indicated that he would not be calling any witnesses, the court engaged in the following colloquy with defendant:
THE COURT: All right. Mr. McDonald, may I go over some things with you, sir? First of all, did you have an opportunity to discuss in detail with [your lawyer] your right to testify and your right not to testify?
DEFENDANT: Yes.
THE COURT: And did . . . [he] explain to you that I will give a charge to the jury about your right not to testify and that it cannot be considered in any way by the jury? There [is] a standard charge that [is] given.
DEFENDANT: Yes.
THE COURT: And he went over that with you as well, sir?
DEFENDANT: Yes.
THE COURT: Okay. And did [he] explain to you in his professional opinion what is in your best interest in this case, whether it [is] to testify or not to testify?
DEFENDANT: Yea, I don't want to.
THE COURT: Excuse me, sir?
DEFENDANT: Yeah, but I don't want to.
THE COURT: Okay. No, but I just want to make sure that he went over everything with you in detail, all right, sir?
DEFENDANT: Oh, yeah, yeah.
THE COURT: And the final thing that I wanted to say to you, Mr. McDonald, although obviously . . . your attorney . . . has only your best interest at heart, ultimately it [is] your decision to make whether you testify or do not testify in this case. And if you do testify, your right to remain silent . . . will be given up obviously if you take the witness stand and you're put under oath. And then you [will] be subject to not only direct examination by [your lawyer] but of course cross examination by the State. You understand that?
DEFENDANT: Yes.
THE COURT: And anything you say obviously will be used against you. You understand that as well?
DEFENDANT: Yes.
THE COURT: All right, sir. And is it your decision, then, Mr. McDonald, that you would not like to testify in this case?
DEFENDANT: Yes.
THE COURT: All right, sir. I [will] be guided by your decision and that's what we [will] do. Thank you very much.
DEFENDANT: Okay.
Later, during its final jury charge, the court gave the no-adverse-inference instruction. Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241, (1981). The instruction closely tracked the Model Jury charge. Defendant did not object to the charge.
Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (revised May 4, 2009), available at http://www.judiciary.state.nj.us/criminal/charges/non2c006.pdf.
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Defendant contends that a defendant must consent before a judge may give this charge to a jury. He first points to State v. Smith, 100 N.J. Super. 420, 424-25 (App. Div. 1968), in which the defendant explicitly requested that the jury be given a no adverse inference charge with respect to the defendant's decision not to testify. Id. at 422. The trial court refused the defendant's request as improper. Ibid. We reversed, holding that when a defendant requests that the jury be instructed that his failure to testify creates no presumption of guilt, he is entitled to that instruction. Id. at 425.
Defendant's reliance upon Smith is misplaced. Here, unlike in Smith, defendant did not request that the jury be given an adverse inference charge with respect to his decision not to testify. The court did not affirmatively inquire of defendant whether he wanted the court to instruct the jury to draw no adverse inference from his exercise of his constitutional right not to testify. Nor, however, did defendant affirmatively request the court to refrain from giving such an instruction, after the court expressly advised defendant that it would give such a charge. Although it is preferable that a defendant decide whether the jury charge should be given, a defendant does not have a "constitutional right to resist the instruction." State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978), certif. denied, 79 N.J. 497 (1979).
Further, pursuant to Rule 1:7-2, a defendant is required to challenge instructions at the time of trial. "Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2." State v. Adams, 194 N.J. 186, 206-07 (2008). "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003) (citing State v. Macon, 57 N.J. 325, 333 (1971)). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised [] was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
In short, defendant has failed to show that the court's jury instruction on his decision not to testify constituted legal impropriety, which prejudiced substantial rights. Burns, supra, 192 N.J. at 341. Consequently, there was no error, let alone plain error, capable of producing an unjust result. Adams, supra, 194 N.J. at 207 (citing R. 2:10-2).
IV.
Lastly, defendant contends his sentence of a five-year term of imprisonment for second-degree eluding, and a consecutive three-year term for third-degree receiving stolen property violated the standard governing consecutive sentencing set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and was excessive. This argument is clearly without merit and does not warrant extensive discussion. R. 2:11-3(e)(2).
The record indicates that defendant received the stolen property, the black Dodge Ram, before he began eluding law enforcement. Clearly, the crimes were committed "at different times" and "in separate places." Both offenses had different victims, and defendant's objectives in committing these offenses were predominantly independent of each other, which provided a sufficient factual foundation for imposition of consecutive sentences. Yarbough, supra, 100 N.J. at 643-44. Therefore, the trial court did not abuse its discretion in imposing consecutive sentences for each of the convictions.
Accordingly, we affirm defendant's convictions and sentences for the eluding and receiving stolen property offenses.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION