Opinion
DOCKET NO. A-2012-11T3
03-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WRYAN THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor (Nancy A. Hulett, 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NOT FOR PUBLICATION WITHOUT THE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 Messano and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0347.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Wryan Thomas was found guilty of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count two), and the lesser-included offense of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5) (count three). The jury acquitted defendant of second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11 (count one).
After denying defendant's motion for a judgment of acquittal, and the State's motion to impose an extended term, the judge sentenced defendant to a four-year term of imprisonment on count two, and a concurrent term of eighteen months on count three, along with appropriate financial penalties.
On appeal, defendant raises the following issues for our consideration:
POINT I - DEFENDANT'S CONVICTION FOR RESISTING ARREST SHOULD BE REVERSED BECAUSE OFFICER SIMAO'S TESTIMONY THAT HE BELIEVED THE DEFENDANT WAS ACTING "WITH PURPOSE" CONSTITUTED AN IMPROPER OPINION THAT DEFENDANT WAS GUILTY. (Not Raised Below)We have considered these arguments in light of the record and applicable legal standards. We affirm.
POINT II - DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR'S FAILURE TO PROVIDE TRIAL COUNSEL WITH OFFICER MARTINEZ'S "FORCE REPORT" IN PRETRIAL DISCOVERY UNDERMINED DEFENDANT'S RIGHT TO A FAIR TRIAL, AND THE PROSECUTOR'S "I DON'T RECALL SEEING IT" REPRESENTATION WAS A PRETEXT DESIGNED TO HIDE A BREACH OF HIS PROFESSIONAL RESPONSIBILITIES.
POINT III - THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ADMITTING PROOF OF THE DEFENDANT'S PRIOR CRIMINAL CONVICTIONS TO IMPEACH HIS CREDIBILITY.
POINT IV - THE [FOUR] YEAR BASE CUSTODIAL TERM IS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE TRIAL COURT'S SENTENCING DISCRETION.
I
Before midnight on October 30, 2009, Perth Amboy police officers Nicholas Millroy and Jesus Martinez were on "tavern patrol" when they observed defendant, and two other individuals, Devon Beasley and Kwasheed Hall, "shouting[] [and] carrying on outside" Fatima Church. The three men complied with the officers' instruction to "take it home[,] [t]ake it off the street."
Officers assigned to tavern patrol are responsible for monitoring the more than thirty taverns in Perth Amboy.
At 1:43 a.m., the officers responded to a "fight call" at the Old San Juan bar, which was across town from the church. When they arrived, the officers observed a large group of people outside the bar, many of whom were intoxicated. More officers, including officer Gilberto Simao, arrived at the scene, at which time the group began to disperse.
Simao observed a group of Hispanic men engaged in a verbal altercation with a group of African-American men, including defendant, Beasley and Hall, who were standing in the street. Defendant's group was shouting at the other group, "posturing . . . as if they were going to go ahead and fight." Millroy ordered Hall, who was standing in the street yelling that his cellular telephone had been stolen, to "leave or get out of the street and continue to move forward." Hall ignored this command and, in an "excited" and "aggressive" manner, "continued to have a confrontation with a group . . . on the sidewalk." Millroy repeatedly informed Hall that, if he did not leave, he would be arrested for disorderly conduct.
During Millroy's exchange with Hall, defendant stood on the sidewalk, "shouting and cursing." Simao told defendant to "move along," and defendant responded by cursing and telling the officer to "mind [his] business." As he placed Hall in custody, Millroy observed defendant "coming right towards [him]." Simao also observed defendant moving towards Millroy yelling "leave him alone, we didn't do nothing, he didn't do nothing[.]"
Simao told defendant "to stop," but defendant ignored the order and kept moving towards Millroy. Simao attempted to grab defendant and a struggle ensued. Ignoring Simao's command to put his hands behind his back, defendant punched the officer in the chest two or three times. Simao forced defendant to the ground, and, from his knees, defendant "bear-hugged" the officer, grabbing him around his waist. Simao "f[elt] and s[aw] [defendant's] hands on [his] weapon." Officer Martinez corroborated Simao's account of defendant's attempt to remove the weapon from its holster.
Martinez "sprint[ed] towards . . . defendant" and hit him on the head with his flashlight. Other officers struggled with defendant as he lay on the ground, refusing to permit the officers to handcuff him behind his back and ignoring their commands to stop resisting. Once he was subdued, Simao placed defendant inside a police vehicle and escorted him to police headquarters. Defendant was then transported by ambulance to a hospital to be treated for his head wound.
Defendant testified that he and a friend went to Kennedy Chicken to buy some food. There, defendant encountered Beasley and Hall, whom he had never met before. As defendant waited outside the restaurant for his food, police officer Dave Guzman arrived and told defendant to leave the area. Defendant explained that he was waiting for his food, and Guzman recorded defendant's name.
After receiving his food order, defendant stated that, together with Hall and Beasley, he walked towards his home. Defendant testified that there was no fight outside the bar, but he acknowledged there was a "verbal altercation . . . between two groups of individuals." When he saw Hall being arrested, defendant "attempted to ask the officer what [Hall] was being arrested for." Defendant denied that he ever reached for Simao's weapon, and testified that he did not "purposely strike, punch, kick, [or] bite Officer Simao or any other police officer." Defendant stated that hospital staff needed five staples to close the gash on his head.
Based upon this testimony, the jury returned the verdicts referenced above.
II
A.
During direct examination of Simao, the prosecutor asked the officer to describe how defendant "walked over to where Millroy was with Hall." Defense counsel objected to the phrase "walked over," and the judge told the prosecutor to re-phrase the question. The following occurred:
Q. The defendant walked toward Hall, right?Shortly thereafter, Simao described defendant as "walking with a purpose, moving quick and with a purpose to get to that point." There was no objection to any of this testimony.
A. Yes, sir.
Q. How would you describe how the defendant walked toward . . . Hall[?]
A. I felt it was aggressive. I felt it was with purpose.
Q Okay. Show the jury.
A What I mean is, we're . . . moving the crowd along, [defendant is] moving, but with the arms in the air —
Q. Okay.
A. — in the air and cursing and whatever and F the police . . . you guys are always picking on us . . . . Once that happens with . . . Millroy, he's no longer . . . talking . . . back to me and moving down the sidewalk . . . . Now he's making a purpose [sic] toward the street where the . . . Millroy incident occurred . . . so [sic] makes me believe that . . . now there's a reason for him going, there's a purpose . . . .
A person is guilty of resisting arrest "if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a) (emphasis added). The offense is a third-degree crime if the actor "[u]ses or threatens to use physical force or violence against the law enforcement officer or another." N.J.S.A. 2C:29-2(a)(3)(a). Defendant argues that Simao's testimony constituted an improper opinion as to an element of resisting arrest, specifically the requisite mental state, and that Simao's opinion usurped the jury's function. In response, the State contends Simao's testimony was a proper "lay opinion" "rationally based on the witness's perceptions."
Because there was no objection, we review defendant's argument by employing the plain error standard. Because there was no objection at trial, we employ the plain error standard to review the claim. See R. 2:10-2 (permitting an appellate court to disregard an error unless it is "clearly capable of producing an unjust result"); and see State v. Daniels, 182 N.J. 80, 102 (2004) (the error must "'raise[] a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached'") (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.Perception is "the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011). If based upon his perception, a lay witness is permitted to "give an opinion on matters of common knowledge and observation." State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)) (quotation marks omitted). However, as the Court has explained,
experts may not intrude on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out without
expert assistance and . . . expert opinions may not be used to express a view on the ultimate question of guilt or innocence.
[McLean, supra, 205 N.J. at 461.]
It is not entirely clear that Simao was offering an opinion about defendant's state of mind. Rather, it seems the witness was simply trying to answer the prosecutor's insistent invitation to "describe how . . . defendant walked" toward Millroy. The transcript reveals that part of the colloquy occurred after the prosecutor asked Simao to leave the witness stand and demonstrate defendant's actions for the jury.
Nevertheless, Simao's repeated use of the word "purpose," or derivations thereof, was inappropriate, because it mirrored the requisite state of mind necessary to convict defendant of resisting arrest. See, e.g., State v. Reeds, 197 N.J. 280, 295 (2009) ("[T]his Court has cautioned against the admission of expert testimony that tracks the 'precise terminology,' and particularly the legalese, of an applicable criminal statute.") (quoting State v. Odom, 116 N.J. 65, 82 (1989)). However, Simao's testimony did not, as defendant claims, express an opinion as to defendant's guilt. Compare McLean, supra, 2 05 N.J. at 445- 446 (where the officer referenced the defendant by name and testified that he observed the defendant engaged in "hand-to-hand drug transactions"). Simao was simply trying to describe his fact-based perceptions of how defendant acted on the night in question.
Moreover, the judge correctly focused the jury's attention on the necessary elements of the offense in his final instructions, and clearly defined the legal term "purposely or with purpose" in relation to the offense of resisting arrest. See Model Jury Charge (Criminal), "Resisting Arrest — Flight Not Alleged" (Rev. 5/7/07). We are firmly convinced that Simao's testimony was not plain error that requires reversal of defendant's conviction.
B.
On cross-examination, Martinez indicated that he prepared a "use of force report" following defendant's arrest. At sidebar, defense counsel informed the judge that he had been informed previously that Martinez produced no reports. The prosecutor stated that he did not have a copy of the report either, but informed the court that a man observing the trial, identified in the record only as "Mr. Harrington," had a copy. Two documents, a "checklist" "force" report produced by Martinez and a similar document produced by Simao, were produced, marked for identification and defense counsel and the judge reviewed them. The judge ruled that the reports "should have been turned over" in discovery, but he also concluded that the prosecutor had not acted in bad faith in failing to produce the reports.
The documents we reference in this part of our opinion are not in the appellate record.
During subsequent colloquy outside the presence of the jury, Martinez also revealed that he may have written an Internal Affairs (IA) report. Neither the prosecutor nor defense counsel had a copy of such a report, and the prosecutor argued that any IA report would not "be turned over to the defense as a matter of course without . . . the Court first reviewing" it. The judge dismissed the jury for the day, instructing them not to return until early the next week. The judge also told the prosecutor to ascertain whether there was an IA report prepared by Martinez.
When proceedings resumed several days later, there was no further mention of any IA report and cross-examination of Martinez continued without any further legal argument. Martinez identified his "use of force report," but testified that he had not authored any narrative reports about the incident.
Defendant argues that his right to confrontation was undermined by the prosecutor's failure to provide a copy of Martinez' "use of force report" during discovery. Defendant does not argue that the prosecutor's failure was willful. Rather, defendant argues that the judge abused his discretion because the report "was not available to trial counsel when he and defendant . . . developed the defense theory of the case." In response, the State contends that any discovery violation was "inadvertent" and did not prejudice defendant. We agree with the State.
Although he found no evidence of bad faith on the part of the prosecutor, the judge determined the report should have been produced in discovery. See R. 3:13-3(b)(1)(H) (requiring the State to produce police reports "within the possession, custody, or control of the prosecutor"). Our Rules provide for a number of ways that the judge may exercise his discretion to remedy a discovery violation. See R. 3:13-3(b)(2)(f) (permitting an order requiring disclosure, granting a continuance, prohibiting introduction of the material at trial or ordering any other relief the court "deems appropriate."
The prosecutor never sought to admit the report in evidence and it was not admitted.
"We have previously noted that '[a] trial court has broad discretion in determining what sanctions, if any, to impose when a party fails to comply with discovery obligations.'" State v. Wolfe, 431 N.J. Super. 356, 363 (App. Div. 2013) (quoting State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled on other grounds, State v. Velez, 119 N.J. 185 (1990)) (alteration in original). We review that trial judge's decision utilizing a deferential "abuse of discretion" standard. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).
Here, there was no mistaken exercise of the judge's broad discretion. He adjourned the proceedings for several days, permitting defense counsel to review the report before conducting cross-examination of Martinez. Defendant has failed to identify any specific prejudice, and, we note that trial counsel never made such a claim nor did he seek any further relief. The State's failure to provide the "use of force" report before trial does not require reversal under these circumstances.
C.
Before defendant testified, the judge conducted a Sands hearing to determine whether evidence of defendant's prior criminal convictions would be admitted for impeachment purposes pursuant to N.J.R.E. 609. The judge determined that evidence of three prior convictions would be admissible: a 2005 conviction for receiving stolen property, a 2009 conviction for possession of a prohibited weapon, which defense counsel described as a "shank" knife, and a 2009 conviction for aggravated assault. As requested by defendant, the judge "sanitized" the 2009 convictions, instructing the prosecutor that as to the first, he could refer to a weapon, but that he should indicate it was "not a firearm or a gun." As to the third conviction, the judge permitted only reference to the degree of the crime.
State v. Sands, 76 N.J. 127, 144 (1978).
On direct examination, defense counsel asked defendant about his prior convictions and noted that, in those instances, defendant had pled guilty and "took responsibility." Before cross-examination, the judge gave the jury an appropriate limiting instruction regarding the proper use of this testimony. The prosecutor briefly asked defendant about the convictions, adhering to the limitations the judge placed on the evidence.
Defendant argues that the judge abused his discretion in admitting proof of defendant's prior criminal convictions, and further contends that the evidence should have been excluded pursuant to N.J.R.E. 403. We again must disagree.
N.J.R.E. 609 permits the admission of evidence of prior criminal convictions for impeachment purposes "unless excluded by the judge as remote or for other causes." The decision to admit prior criminal convictions to impeach the credibility of a defendant who chooses to testify rests with the trial judge's sound discretion and is subject to limited appellate review. State v. Harris, 209 N.J. 431, 439 (2012). "'Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.'" Id. at 441 (quoting Sands, supra, 78 N.J. at 144).
On September 16, 2013, the Court adopted amendments to N.J.R.E. 609 subject to the terms of N.J.S.A. 2A:84A-33. The new rule, effective July 1, 2014, provides
(a) In General
(1) For the purpose of affecting the credibility of any witness, the witness' conviction of a crime, subject to Rule 403, must be admitted unless excluded by the judge pursuant to Section (b) of this rule.
(2) Such conviction may be proved by examination, production of the record thereof, or by other competent evidence, except in a criminal case, when the defendant is the witness, and
(i) the prior conviction is the same or similar to one of the offenses charged, orthe State may only introduce evidence of the defendant's prior convictions limited to the degree of the crimes, the dates of the convictions, and the sentences imposed, excluding any evidence of the specific crimes of which defendant was convicted, unless the defendant waives any objection to the non-sanitized form of the evidence.
(ii) the court determines that admitting the nature of the offense poses a risk of undue prejudice to a defendant,
(b) Use of Prior Conviction Evidence After Ten Years
(1) If, on the date the trial begins, more than ten years have passed since the witness'[] conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.
(2) In determining whether the evidence of a conviction is admissible under Section (b)(1) of this rule, the court may consider:
(i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud,
(iii) how remote the conviction is in time,
(iv) the seriousness of the crime.
"[W]hen the State introduces a prior conviction that is the same as or similar to the offense charged, the court should prevent the jury from hearing the specifics of the prior offense." State v. Hamilton, 193 N.J. 255, 257 (2008) (citing State v. Brunson, 132 N.J. 377, 391 (1993). Even when the prior conviction is not for the same or similar crime, "courts have the authority to take steps to neutralize the highly prejudicial effect of particular prior-conviction evidence by eliminating reference to the specifics of the earlier crime." Id. at 268 (citation omitted).
Here, the judge's decision was not a mistaken exercise of discretion. The trial in this case took place in September 2011, less than two years after defendant's 2009 conviction for aggravated assault. At defendant's request, the judge appropriately sanitized the 2009 convictions, and there was no objection to the court's ruling in this regard. The sanitization adequately informs us of the judge's decision regarding the weighing process embodied in N.J.R.E. 403 ("[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice."). Moreover, the judge immediately instructed the jury on the limited, permitted use of the evidence as soon as it was admitted.
III
At sentencing, after denying the State's motion for a discretionary extended term, N.J.S.A. 2C:44-3, the judge found aggravating factors three (the risk of re-offense) and nine (the need to deter). N.J.S.A. 2C:44-1(a)(3) and (9). The judge found no mitigating factors. N.J.S.A. 2C:44-1(b).
Defendant argues that the judge mistakenly exercised his discretion by imposing an aggregate four-year term because he failed to find the existence of mitigating factor thirteen. See N.J.S.A. 2C:44-1(b)(13) ("The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant."). The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). We add only the following brief comments.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
While judges are "encourage[d] to address each factor raised, even if only briefly[,]" State v. Bieniek, 200 N.J. 601, 609 (2010), here, defense counsel did not urge application of any specific mitigating factor. Even if counsel had, the Court has said that the judge need not "explicitly reject every mitigating factor argued to the court." Ibid. More importantly, the record in this case does not support a finding that mitigating factor thirteen applied. Defendant was twenty-three years old at the time of his arrest, and there was no evidence that Hall was "more mature" than defendant, or that he "substantially influenced" defendant's conduct.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION