Opinion
DOCKET NO. A-4010-12T4
08-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JACKIE J. LEWIS, a/k/a TONY DOWS, a/k/a LOUIS TONY, a/k/a LEWIS JACKIE, a/k/a CONNUS LEWIS, a/k/a JACKIE LEWIS, a/k/a JAMEER LEWIS, a/k/a TONY LOUIS, a/k/a JACKIE OLIVER, a/k/a JAMES OLIVER, a/k/a JAMES REED, a/k/a JAMES SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael J. Mennuti, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Maven. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-12-1327. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael J. Mennuti, on the brief). PER CURIAM
Defendant Jackie J. Lewis was charged under Indictment No. 10-12-1327 with second-degree eluding while operating a motor vehicle, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest by force or violence, N.J.S.A. 2C:29-2(a)(2)(a). Defendant was tried before a jury which found him guilty of eluding as charged and the lesser-included offense of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). Defendant appeals from the judgment of conviction entered on June 20, 2012. We affirm.
I.
At the trial, the State presented evidence which established that on September 21, 2010, at around 8:00 p.m., Detective Ahmad Mansur of the Trenton Police Department was on "radar detail" looking for motorists who were driving faster than the posted speed limit. He was driving an unmarked police vehicle. Mansur was under an underpass, in the center median, beneath the Broad Street bridge.
Mansur observed a grayish-green Ford pick-up truck, which was occupied by defendant. According to Mansur, defendant was traveling at sixty-eight miles per hour on a road with a posted speed limit of forty miles per hour. Mansur activated his lights and sirens and followed defendant's vehicle. He caught up with defendant's car. Defendant was in the right lane, and Mansur was behind him. His lights and siren were on.
Defendant made a right turn onto Hamilton Avenue and Mansur continued to follow defendant's vehicle. Mansur thought defendant might pull over after he turned. However, defendant continued on and made a sharp left turn onto Canal Street. Mansur radioed for back-up. Defendant then drove down Canal Street and made a right onto Pearl Street. This was an illegal turn because Pearl is a one-way street and defendant was going in the wrong direction.
Mansur did not follow defendant down Pearl because it was unsafe. Mansur deactivated his siren and lights. He met up with defendant on South Clinton, where defendant turned right onto Tyler Street. Mansur crossed over to Tyler and continued the pursuit. Mansur re-activated his siren and lights. Defendant went "all the way down", crossed over Hudson and returned to Tyler.
Defendant did not stop at the stop sign at the corner of Hudson and Tyler. Mansur continued to pursue defendant. Mansur said that on Tyler Street, defendant was traveling about thirty or thirty-five miles per hour, although the speed limit is twenty-five. Mansur explained that this was a residential area, and there were "plenty of people out" at the time.
Defendant stopped on Tyler because the roadway was blocked. Defendant got out of his car and ran on Tyler to a yard behind a house. Mansur pursued defendant on foot. Mansur was wearing a police uniform. He told defendant several times, "Police, stop running." Defendant continued to run.
Defendant ran into the rear yard and tried to hop over a fence. He got up onto the fence but did not get over it. Mansur told him he was under arrest. According to Mansur, defendant was flailing his arms. He swung his arms several times and Mansur "maced" him. Defendant was "pretty much lenient after that." Mansur handcuffed defendant and back-up arrived.
Defense witness Herbert Wright testified that on the evening of September 21, 2010, he was outside a bodega drinking beer with defendant and others. He said that three males drove up and exited a car. Wright said these men had guns. Someone said the "stick-up boys are coming." According to Wright, defendant and another man "took off" running.
Wright remained. The robbers told Wright to give them everything he had in his pockets and Wright complied. The robbers got back in the car and left. Wright did not call the police. He said he had been robbed in the past, and notified the police but "nothing ever happened."
On cross-examination, Wright conceded that he had several prior convictions, including convictions for burglary, distribution of a controlled dangerous substance (CDS), and distribution of CDS on or near school property. He acknowledged that he had known defendant on and off for twenty years, but said they were not "like real, real close friends[.]"
Wright also admitted that he never told the police about the robbery he described. He said the first person he told about the robbery was an investigator for the defense. Wright also said he first gave a written statement about the incident in December 2011.
Defendant testified that on the night in question, he stopped at the bodega to see a person who he had not seen for a period of time. They were standing outside the bodega when this individual said "stick-up boys." Defendant saw a car stop and several people got out. Defendant went across the street, jumped in his truck and took off.
Defendant stated that he turned onto Route 129. He said he was not thinking about speed. He stated that he was "trying to get away from a robber." Defendant saw that he was being pursued by another vehicle, but claimed that he never had a chance to see if it was the police because his truck "sits up higher" than other vehicles.
He acknowledged that he had been speeding, failed to heed a stop sign and went the wrong way down a one-way street. He insisted he was trying to elude the robbers. Defendant said that he stopped because the road was blocked. He got out of his truck and started running. A police officer told him to stop. Defendant said he stopped running and was relieved that he was being pursued by the police, rather than the robbers.
Defendant conceded that he had several prior convictions, including a conviction of a third-degree offense in 1993, for which he had been sentenced to five years, and conviction of a third-degree offense in 1996, for which he was sentenced to twelve years with a parole ineligibility period. He also acknowledged a conviction in 2007 of a fourth-degree offense, for which he served nine months in jail.
Defendant testified that he was maced after he stopped running. He dropped to the ground. Defendant claimed he tried to tell the officer that he thought he was being pursued by robbers, but he found it difficult to speak. He said the officer cursed at him and told him to shut up.
As stated previously, defendant was found guilty of second-degree eluding and fourth-degree resisting arrest. The trial judge sentenced defendant to twelve years in jail for eluding, with a six-year period of parole ineligibility. The judge also imposed an eighteen-month, concurrent term of incarceration for resisting arrest. The court entered a judgment of conviction dated June 20, 2012. This appeal followed.
Defendant raises the following arguments for our consideration:
POINT I
THE INSTRUCTIONS CONFUSED FLIGHT AS AN ELEMENT OF THE CHARGED OFFENSES OF ELUDING AND RESISTING ARREST WITH FLIGHT AS CONSCIOUSNESS OF GUILT. (Not Raised Below)
POINT II
THE PROSECUTOR'S REMARKS POINTING OUT THAT DEFENDANT EXERCISED HIS RIGHT TO REMAIN SILENT AND BOLSTERING HIS POLICE WITNESS WERE IMPROPER AND PREJUDICIAL. (Not Raised Below)
A. Direct Comment on Defendant's Exercise of His Right to Remain Silent
B. Bolstering Police Credibility
POINT III
THE JUDGE APPLIED THE WRONG SENTENCING RANGE, AND THE SENTENCE IMPOSED IS EXCESSIVE.
II.
We turn first to defendant's contention that the court's instructions to the jury confused flight as an element of the charged offenses with flight as consciousness of guilt. As noted, this argument was not raised below. Therefore, we must determine whether the instructions were erroneous and, if so, whether the error was clearly capable of producing an unjust result. R. 2:10-2.
"Flight of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt." State v. Long, 119 N.J. 439, 499 ( 1990) (citing State v. Johnson, 216 N.J. Super. 588, 612 (App. Div. 1987); United States v. Ballard, 423 F.2d 127, 133 (5th Cir. 1979)). "'For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Mann, 132 N.J. 410, 418-19 (1993) (quoting State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966)).
The model criminal jury instructions on flight are as follows:
There has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defendant denies any flight, (or, the defendant denies that the acts constituted flight). The question of whether the defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant, fearing that an accusation or
arrest would be made against (him/her) on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all the other evidence in the case, as an indication or proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment.
[Model Jury Charge (Criminal), "Flight" (2010.)]
Defendant notes that flight is an element of resisting arrest under N.J.S.A. 2C:29-2(a)(2) and eluding under N.J.S.A. 2C:29-2(b). He contends the court's instruction confused the statutory elements of flight, which must occur during the commission of the offense, with flight that occurs after the commission of the offense, and may constitute evidence of consciousness of guilt. Defendant argues that the court erroneously instructed the jury that it could infer from defendant's flight during the commission of the offenses that he knew he was guilty of their commission.
The record does not support defendant's argument. Here, the judge instructed the jury on the elements of eluding a police or law enforcement officer while operating a motor vehicle. The judge said the State had to prove six elements beyond a reasonable doubt: (1) that defendant was operating a motor vehicle on the street or highway, (2) Mansur was a police or law enforcement officer at the time, (3) the officer signaled defendant to bring his vehicle to a full stop, (4) that defendant knew the officer had signaled him to come to a full stop, (5) defendant knew that Mansur was a police officer, and (6) defendant knowingly fled or attempted to elude the officer.
Among other things, the judge discussed the concept of flight. He stated:
What is flight? The question of whether a defendant fled after the commission of a crime is question for your determination. In this case flight is an element of the offense itself or both offenses actually, both counts. If you find that the defendant fearing that an accusation or arrest would be made against him — and this would be with relation to the resisting arrest — if he were afraid at that time at the end of all this that an accusation or charge would be made against him, he would be arrested, you may consider flight, his conduct in connection with what he did at that time in connection with all the other evidence in the case, as an indication or proof of consciousness of guilt. It may lead you to believe that because he ran or did something that he knew what was going on and he was aware of a consciousness of guilt. This is circumstantial evidence, of course. In that case flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment, meaning that after the vehicle came to a stop — and I'll focus on that — and he is on foot. There's no dispute about that he was. If you find that is flight,Thus, the judge carefully distinguished flight as an element of the offense from flight which indicates consciousness of guilt. The judge also instructed the jury on the elements of resisting arrest. The judge said the State had to prove the following beyond a reasonable doubt: (1) Mansur was a law enforcement officer; (2) Mansur was effecting an arrest at the time; (3) defendant knew or had reason to know that Mansur was a law enforcement officer effecting an arrest; and (4) defendant purposely prevented or attempted to prevent the officer from effecting the arrest. The judge noted that the defendant could resist arrest by fleeing, or by using physical force or violence.
that may be an indication of consciousness of guilt and a means to avoid being charged with eluding a police officer when he was driving a vehicle.
The judge did not, however, repeat the instruction indicating that the jury could infer a consciousness of guilt from flight. Indeed, as the previous quote indicates, the judge stated that, while flight was an element of both offenses, flight as consciousness of guilt only applied to the eluding charge and only after defendant's vehicle came to a stop.
The judge never instructed the jury that the jury could infer flight as consciousness of guilt when considering the resisting arrest charge. Indeed, the judge instructed that evidence of flight as indicating a consciousness of guilt applies to flight after the commission of a crime. Defendant did not flee after resisting arrest. He could not do so because he was in custody.
We therefore reject defendant's contention that the jury's instructions on flight were erroneous.
III.
Next, defendant argues that he was denied a fair trial because the assistant prosecutor commented on his right to remain silent. We disagree.
As stated previously, defendant claimed that, on the evening of September 21, 2010, he did not realize a police officer was pursuing him. Defendant said he believed he was being chased by robbers. During his cross-examination of Mansur, defendant's counsel asked Mansur whether defendant would have been able to have a normal conversation after he was maced.
Defense counsel also asked Mansur whether defendant was able to tell him anything. Mansur said that a person who was sprayed with mace would have been able to speak and defendant did not speak with him. On re-direct, the assistant prosecutor asked Mansur whether defendant made any statement to him. Mansur said he had not. The prosecutor asked "As his right to remain silent; correct?" Defendant's attorney did not object to the question. Mansur replied, "Right."
New Jersey's privilege against self-incrimination "is deeply rooted in this State's common law" and codified in N.J.S.A. 2A:84A-19 and N.J.R.E. 503. State v. Muhammad, 182 N.J. 551, 567 (2005). New Jersey's state-law privilege provides broader protection than the comparable privilege under the Fifth Amendment to the United States Constitution. Id. at 568 (citing State v. Strong, 110 N.J. 583, 595 (1988). A suspect's right "'to remain silent when in police custody or under interrogation has always been a fundamental aspect of the privilege in this state.'" Id. at 567. (quoting State v. Deatore, 70 N.J. 100, 114 (1976)).
The State may not impeach a defendant with his silence while under interrogation by the police "at or near" the time of his arrest. Id. at 569 (citing Deatore, supra, 70 N.J. at 10809). A defendant is under "'no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not.'" Ibid. (quoting Deatore, supra, 70 N.J. at 115).
Here, the assistant prosecutor erred by referencing the fact that defendant made no statement to Mansur when he was apprehended, and by noting that defendant had a right to remain silent. However, we are convinced that the prosecutor's questions did not deprive defendant of a fair trial.
As we noted, defense counsel first interjected the issue of defendant's silence into the trial when he cross-examined Mansur. Moreover, defense counsel did not object to the assistant prosecutor's reference to defendant's right to remain silent. Furthermore, the assistant prosecutor did not ask defendant about his failure to tell Mansur that he was fleeing from robbers when he was apprehended. In addition, the assistant prosecutor did not mention defendant's silence in his closing argument.
However, defense counsel stated that "we don't know what" defendant would have said when arrested "because of pepper spray, because he was pepper sprayed into silence." We are convinced that the assistant prosecutor's brief references to defendant's silence do not warrant reversal of defendant's convictions.
Defendant also argues that the assistant prosecutor improperly bolstered Mansur's testimony in his summation. Again, we disagree.
In his summation, defense counsel maintained that defendant fled from armed robbers, not the police. He said defendant hit the "panic button" which was the gas pedal of his truck. Counsel stated that Mansur thought he was chasing a speeding motorist who was refusing to stop, but defendant "thought that the police officer in the unmarked car was the armed gunmen he was fleeing." Counsel said that the jury would decide "whether or not you believe that."
In response, the assistant prosecutor called Mansur a "very credible witness" and went through his testimony in great detail. He concluded his discussion of Mansur's testimony by stating that Mansur had struggled with defendant and pulled him down in a "dark backyard." Mansur did not know if help was coming or not.
[A]nd that is when the defendant refused to be placed under arrest. And he didn't come in here, Detective Mansur, and give you a tall tale about this epic struggle and how the defendant put his hands around his neck or tried to hit his head or hit his face. And we'll get into the elements in a little bit but he told you the defendant kept flailing his arms and he made motions moving his elbows back and refused so much so that he had to pepper spray him. It's mace. There was a more official word for it, but pepper spray. And he testified — and I know it was did you pepper spray him three time. I submit to you it was three bursts is what he meant by that, not three separate occasions. He was pretty clear on that. But that's what he needed to do to gain control of the defendant. He used the least amount of force as necessary. And Detective Mansur tells you he complied. I was able to get him on his stomach. I had at least one cuff on him
before my back-up unit got there. And that, ladies and gentlemen, is credible testimony from an individual who has no motive to lie.
Defendant argues that the assistant prosecutor's statement that Mansur had "no motive to lie" was improper. We agree. See State v. R.B., 183 N.J. 308, 331-32 (2005); State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994). However, the remark does not constitute reversible error. Defense counsel did not object to the comment when made, thereby indicating that counsel did not view the remark as prejudicial at the time it was made. State v. Frost, 158 N.J. 76, 84 (1999). Moreover, the comment came at the end of a lengthy discussion of Mansur's testimony, in which the assistant prosecutor argued that Mansur was a credible witness, not because he was a police officer, but rather because his detailed description of the incident was believable.
We are therefore convinced that the prosecutor's remark was not in any sense egregious, and did not violate defendant's right to have the jury fairly evaluate his defense. Id. at 83 (citing State v. Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)).
IV.
Defendant also argues that his sentence is excessive. We do not agree.
In this case, the trial judge granted the State's motion for an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge found mitigating factors two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate his conduct would cause or threaten serious harm).
The judge gave the mitigating factor slight weight, and was clearly convinced the aggravating factors substantially, if not overwhelmingly, outweighed the one mitigating factor. The judge sentenced defendant to an extended term of twelve years of incarceration, with a six-year period of parole ineligibility, for the second-degree eluding. The judge also sentenced defendant to a concurrent eighteen months for resisting arrest.
Defendant does not dispute that he met the statutory criteria for an extended term. He argues, however, that the court did not properly consider the correct sentencing range when imposing the extended-term sentence.
Defendant notes that the extended term for a second-degree conviction is ten to twenty years. N.J.S.A. 2C:43-7(a)(3). He also notes that under State v. Pierce, 188 N.J. 155, 169 (2006), the permissible range for a discretionary, extended-term "reaches from the bottom of the original-term range to the top of the extended-term range." This means that, in defendant's case, the range was from five to twenty years. N.J.S.A. 2C:43-6(a)(2); N.J.S.A. 2C:43-7(a)(3).
In support of his argument, defendant cites the judge's remarks at sentencing. After making his findings on the aggravating and mitigating factors, and reviewing the facts of the case, the judge noted that the State had sought an extended-term sentence. The judge said that the State's application was:
Based upon a number of factors, all of which are here. Counsel have argued that the Court should not go into the persistent offender section of sentencing and apply that law, even though you're qualified, but rather the low end of the sentence for a second degree offense. I don't find that's appropriate. I think you are a persistent offender for all the reasons that I've indicated. I think your sentence must be greater than the maximum for a second degree offense, which would be a seven-year term with the three and a half year period of — I'm sorry, a ten-year term with a five-year period of parole ineligibility. I don't think it should be as high as the prosecutor has suggested and requested in his remarks before us today, but the Court is prepared to sentence you as to Count 1, as a persistent offender.
Defendant says that the judge "mistakenly believed" that sentencing a defendant to an extended term as a persistent offender meant imposing a sentence above the ordinary range. He says the judge erroneously failed to understand that he could impose a sentence from the bottom of the ordinary range to the top of the extended-term range. We do not believe the judge's remarks support that interpretation.
We note that, in his arguments at sentencing, the assistant prosecutor asked the court to impose a fifteen-year extended term, with a seven-and-one-half-year period of parole ineligibility. In response, defendant's counsel argued that the court should exercise its discretion and not impose an extended term. He argued that defendant should be sentenced at the bottom of the second-degree range to a five-year term.
The judge's comments do not indicate that the judge believed he was obligated to impose a sentence that was longer than the maximum, ordinary term for a second-degree offense. Furthermore, there is nothing in the judge's remarks which indicates that he did not understand the full range of sentences that could be imposed.
Indeed, the judge expressly rejected defense counsel's suggestion of a five-year term. The judge's comments merely indicate that the judge believed that, in view of his findings of aggravating and mitigating factors, a sentence longer than the maximum ordinary term was warranted in this case. Therefore, we reject defendant's contention that the judge failed to consider the full range of possible sentences, as required by Pierce.
Defendant also argues that his sentence is excessive. He contends the sentence was not warranted by the facts of the case. He says that the eluding offense was elevated to a second-degree offense because his flight created a risk of death or injury to others. N.J.S.A. 2C:29-2(b). He notes that no person was injured and no property damaged in this incident. In addition, defendant argues that his prior criminal record, although involving six prior indictable convictions and several municipal court convictions, did not warrant the weight that the court placed on the aggravating factors.
In our view, these arguments are without sufficient merit to warrant comment. R. 2:11-3(e)(2). We are satisfied that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION