Opinion
DOCKET NO. A-3077-12T1
09-02-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES J. DAIDONE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 10-06-0539. Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant Charles J. Daidone was convicted of third-degree eluding, N.J.S.A. 2C:29-2b, and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4). The court sentenced defendant to a four-year term of imprisonment on the eluding charge, and a concurrent nine months on the hindering charge. The court also imposed the appropriate penalties and assessments.
On appeal, defendant raises the following contentions:
POINT IWe disagree with defendant's first contention, but agree with the second contention. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
THE TRIAL JUDGE ERRED IN IMPROPERLY ADMITTING [N.J.R.E.] 404(b) EVIDENCE WHICH WAS UNDULY PREJUDICIAL WITH REGARD TO THE ELUDING CHARGE.
POINT II
THE TRIAL JUDGE'S FAILURE TO CHARGE THE JURY WITH THE LESSER-INCLUDED OFFENSE OF DISORDERLY PERSONS HINDERING [APPREHENSION OR PROSECUTION] CONSTITUTES REVERSIBLE ERROR. (NOT RAISED BELOW).
We derive the following facts from the record. At approximately 10:45 p.m. on April 3, 2010, Officer John Massing of the Westville Police Department saw a driver, later identified as defendant, using a cell phone while driving. Office Massing pursued defendant and activated his overhead lights and siren to signal defendant to stop. Defendant sped away, but the police found him shortly thereafter.
Defendant testified at trial that he never saw a police vehicle behind him or heard a siren, and did not know that a police officer was attempting to stop him. He admitted that he initially gave the police a false name, but then gave his real name and told the police he gave a false name because he had a suspended driver's license and outstanding arrest warrants.
Defendant had a prior eluding conviction. The State sought to admit the conviction, as well as defendant's suspended driver's license and outstanding arrest warrants, as evidence of his motive and/or state of mind for eluding and providing false information. Following a Sands/Brunson hearing, the trial judge permitted admission of defendant's prior conviction. The judge also permitted admission of defendant's suspended driver's license and warrants without conducting a Cofield analysis.
State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
State v. Cofield, 127 N.J. 328 (1992).
At trial, the judge gave a preliminary and final limiting instruction that the jury could only consider defendant's suspended driver's license and warrants as evidence of his motive and/or state of mind for eluding and providing false information, not as evidence that he was guilty of the offenses charged or that he was a bad person. Defendant does not challenge the limiting instructions.
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I.
Defendant contends in Point I that the judge erred in failing to conduct a Cofield analysis. He also contends that admission of this evidence was unduly prejudicial with respect to the eluding charge.
N.J.R.E. 404(b) provides as follows, in pertinent part:
[E]vidence of other crimes, wrongs, or acts is not admissible 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.We owe no deference to the trial court's decision to admit other-crime evidence where there was no Cofield analysis to determine its admissibility. State v. Reddish, 181 N.J. 553, 609 (2004) (quoting State v. Darby, 174 N.J. 509, 518 (2002)). Nor do we review that decision under an abuse of discretion standard. Ibid. Rather, where, such as here, the trial court fails to conduct a Cofield analysis, we must conduct a plenary review to determine whether the other-crime evidence was admissible. Ibid.
[N.J.R.E. 404(b).]
In Cofield, the Court established a four-part test designed "'to avoid the over-use of extrinsic evidence of other crimes or wrongs' pursuant to a Rule 404(b) exception." State v. Skinner, ___ N.J. ___, ___ (2014) (slip op. at 24-25) (quoting Cofield, supra, 127 N.J. at 338). Cofield requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338 (citations omitted).]
The first Cofield prong requires that the other-crime evidence "'must be relevant to a material issue that is genuinely disputed.'" Skinner, supra, slip op. at 25 (quoting State v. Covell, 157 N.J. 554, 564-65 (1999)). "The analysis can include all evidentiary circumstances that tend to shed light on a defendant's motive and intent or which tend fairly to explain his actions, even though they may have occurred before the commission of the offense." Ibid. (citations and internal quotation marks omitted.)
The second Cofield prong "requires that the other-crime evidence be similar in kind and reasonably close in time to the alleged crime." Id. at 26. However, this requirement applies "only in circumstances factually similar to Cofield." Ibid. Cofield concerned the admissibility of the defendant's prior possession of illegal drugs in an incident that took place at the same location. Cofield, supra, 127 N.J. at 330-31.
The third Cofield prong "'requires that the judge serve as the gatekeeper to the admission of other-crime evidence' and ensure that proof of the bad act is demonstrated by clear and convincing evidence." Skinner, supra, slip op. at 26 (quoting State v. Hernandez, 170 N.J. 106, 123 (2001)).
The fourth Cofield prong "requires that '[t]he probative value of the evidence must not be outweighed by its apparent prejudice.'" Ibid. (alteration in original) (quoting Cofield, supra, 127 N.J. at 338). Evidence of motive or intent "'require[s] a very strong showing of prejudice to justify exclusion.'" Id. at 26-27 (quoting Covell, supra, 157 N.J. at 570). "Nevertheless, in weighing the potential prejudice of a defendant's prior bad act, crime, or wrong, consideration must be given to whether other, less prejudicial, evidence is available to the State." Id. at 27. As a final matter,
if the State adequately demonstrate[s] the necessity of the other-crime evidence to prove a genuine fact in issue and the court has carefully balanced the probative value of the evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence.
[Ibid. (internal quotation marks omitted) (quoting Cofield, supra, 127 N.J. at 340-41).]
Here, the first Cofield prong is met. Defendant concedes that a material issue was whether he knew the police signaled him to stop, a critical element of eluding, and that this issue was genuinely disputed. Accordingly, evidence of defendant's suspended driver's license and outstanding warrants was admissible as it tended to shed light on his motive and intent or tended fairly to explain his actions in eluding and providing false information.
The second Cofield factor does not apply because the circumstances of this case are not factually similar to Cofield.
The third Cofield factor is met because there is clear and convincing evidence of the other crimes. Defendant admitted that he voluntarily told the police he had a suspended driver's license and outstanding warrants.
The fourth Cofield factor is also met. Defendant's voluntary statement to the police that he gave a false name because he had a suspended driver's license and outstanding warrants was highly probative to show his motive or state of mind to elude and provide false information. See State v. Williams, 190 N.J. 114, 133 (2007) (holding that evidence of the defendant's post-shooting words was admissible under N.J.R.E. 404b for purposes of assessing defendant's state of mind). This evidence was not outweighed by any undue prejudice. And finally, the judge instructed the jury on the limited use of the evidence. Accordingly, we affirm defendant's eluding conviction.
II.
Defendant contends for the first time on appeal in Point II that the judge erred in failing to sua sponte charge the jury on disorderly-persons hindering apprehension as a lesser-included offense of fourth-degree hindering apprehension. We agree.
Proper jury instructions are essential to a fair trial. State v. Afanador, 151 N.J. 41, 54 (1997). The court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).
A court must charge a related lesser offense, even if it is not specifically requested by trial counsel, where that lesser offense is "clearly indicated" by the proofs. State v. Jenkins, 178 N.J. 347, 361 (2004). A trial court is not required to "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty,'" State v. Brent, 137 N.J. 107, 118 (1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988)). However, the court must charge the jury, sua sponte, with a lesser crime "if the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361.
N.J.S.A. 2C:29-3b provides as follows, in pertinent part:
A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the Revised Statutes, . . . he:As the statute states, third-degree hindering apprehension and disorderly-persons hindering apprehension are identical crimes, and the degree of the crime is only determined by the underlying crime from which the defendant was hindering apprehension or prosecution.
(4) Gives false information to a law enforcement . . . .
. . . . [T]he offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
[N.J.S.A. 2C:29-3b.]
Model Jury Charge (Criminal), "Hindering One's Own Apprehension or Prosecution (N.J.S.A. 2C:29-3b)" (2014) instructs the court as follows:
Note that the degree of this crime depends upon whether the offense that the defendant had been or was likely to be charged with would have constituted a crime of the second degree or greater, a crime of the third degree, or a crime of the fourth degree or less. Any issue regarding what degree of crime defendant knew that (he/she) had been or would likely be charged with must be submitted to the jury, along with definitions of the elements of the crimes or offenses that the issue of knowledge entails.
[Model Jury Charge (Criminal), "Hindering One's Own Apprehension or Prosecution (N.J.S.A. 2C:29-3b)", n.1 (2014) (emphasis added).]
While instructing the jury on hindering apprehension, the judge referred to whether defendant knew and purposely hindered his own prosecution for "an offense." The judge did not specify the offense from which defendant was hindering apprehension or prosecution, nor did he instruct the jury regarding the degree of the offense or provide definitions of the elements of the offense that the issue of knowledge entailed. The judge's failure to include the proper jury instruction on hindering apprehension or prosecution clearly prejudiced defendant since the jury ultimately convicted him of fourth-degree hindering apprehension. Accordingly, we reverse defendant's conviction for hindering apprehension or prosecution and remand for a new trial.
Affirmed in part, reversed in part, and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION