State v. Daniel Twian Brown (A-67-09/A-17-10)
At the time Brown fled through a window onto a roof next door, the police had engaged in no misconduct; thus, there was no seizure of any sort in the apartment. When the police arrested Brown after he came down from the roof, they did not need an arrest warrant because they had probable cause to arrest him in a public place (1) for armed robbery committed outside their presence and (2) for resisting arrest, which they observed.
State v. Damu Alston (A-72-09)1-19-11
Defendant’s statements after he waived his right to counsel, when clarified, were not an assertion of his right to counsel, and the police officer’s questions did not exceed the scope of permissible clarification.
State v. Eileen M. Ciancaglini (A-92/93-09)
Defendant Ciancaglini’s conviction in 2006 for refusing to take a breathalyzer test does not constitute a prior conviction for purposes of determining her sentence for driving while intoxicated in 2008.
Before Judges Michels, Kleiner, and Coburn.
On appeal from the Superior Court of
New Jersey, Law Division, Atlantic County.
Susan L. Reisner, Public Defender, attorney for appellant (Mark S. Carter, Designated Counsel, of counsel and on the brief).
Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Defendant Joseph Bauman appeals from his conviction on numerous counts of a superseding indictment returned by the Atlantic County Grand Jury and from his sentence to an aggregate prison term of twenty-three years with a ten-year period of parole ineligibility.
The criminal charges relate to a series of acts occurring on October 6, 7, and 8, 1992. At defendant's trial, he readily acknowledged his guilt of the crimes charged, and offered no specific evidence to rebut the State's proofs other than evidence that he contends supports his defense of intoxication or, alternatively, diminished capacity.
Defendant contends that the trial judge erred in: (1) failing to instruct the jury, sua sponte, on the defenses of intoxication and diminished capacity; (2) denying his motion to dismiss the superseding indictment and to reinstate the original indictment; (3) denying his motion for a new trial based on prosecutorial misconduct; and (4) denying his motion for a judgment of acquittal on one of his second-degree armed burglary convictions. Defendant also maintains that the judge abused his discretion by imposing an extended term on his third-degree conviction of aggravated assault while eluding a police officer and by imposing consecutive sentences for his conviction of third-degree aggravated assault of a police officer and on one of his second-degree armed burglary convictions.
We conclude that defendant's contentions, though requiring substantial discussion, are without merit. We therefore affirm.
with New York license plates, from an auto body repair shop on Long Island, New York. Defendant drove to the Trump Plaza Hotel in Atlantic City and parked in its parking garage. Defendant proceeded to the casino floor and gambled at the blackjack tables. At one point, defendant was winning approximately $4,000. Defendant continued to gamble and thereafter lost the entire $4,000 and any remaining money that he had brought with him from New York.
Defendant then left the casino floor, returned to the Trump Plaza parking garage, and slept in the Volvo. The next day, October 7, he broke into numerous automobiles parked in the garage and belonging to casino patrons and employees. Personal property was removed from many of those automobiles. Defendant then left the Trump Plaza and made his way up the Boardwalk to another casino-hotel, the Taj Mahal. He entered the Taj Mahal parking garage, broke into numerous automobiles, and removed valuable personal property. Defendant, carrying these stolen items, then returned to the Trump Plaza. On two occasions, defendant had contact with Officer Jones of the Atlantic City Police Department.
Among the many items that defendant stole were two registered handguns and two registered rifles removed from two different vehicles. From the proof it is clear that defendant possessed these weapons when he thereafter entered other parked motor vehicles. Additionally, defendant took a suitcase in which
he found Valium, which had been prescribed for the owner of the suitcase.
Victims of defendant's crimes started reporting the thefts to the casino security officers and the police. Defendant's activities were also reported by a casino employee who spotted defendant breaking into a car.
The next morning, October 8, 1992, Officer Jones witnessed defendant acting strangely. As a result, defendant's description was reported to the Atlantic City Police Department.See footnote 1 Defendant took New Jersey license plates off of an automobile parked at a nearby casino training school and placed those plates on the Volvo. He then proceeded to depart Atlantic City.
high rate of speed. The officers broadcasted a description of the vehicle and its direction of travel--towards the Atlantic City Expressway--over the radio.
At 12:08 p.m., Officer Cohen, who was in uniform in a marked police unit, heard the alert and observed a white Volvo heading out of Atlantic City on the expressway at a normal rate of speed. Cohen activated his unit's overhead lights, pulled defendant over to the side of the road, and after exiting his vehicle with his weapon drawn, ordered defendant, who looked "a little panicky," to turn off his motor, drop the car keys out the window, and place his hands on the steering wheel. Defendant did not comply but, instead, drove away at a high rate of speed. Cohen pursued defendant's vehicle and broadcasted his pursuit over the police radio.
Detective Hurley, then traveling on the expressway, heard Cohen's alert. Hurley looked in his rear view mirror and saw the Volvo traveling on the shoulder of the road at about forty miles per hour. Hurley attempted to change lanes in order to avoid the oncoming Volvo, as the shoulder of the road was becoming narrower. Hurley's car stalled and was struck in the rear by defendant's vehicle, rendering Hurley unconscious and causing other disabling injuries. Meanwhile, Cohen, who was still in pursuit, observed defendant exit his vehicle wearing black pants, a white shirt, work gloves, and a bandanna. Cohen watched defendant run across the expressway and enter an adjacent marshy
area filled with tall weeds and a creek. Cohen lost sight of defendant and called for backup assistance and the canine patrol.
At approximately 1:30 p.m., a canine patrol officer found defendant laying in the mud, naked, and concealed under marsh grass. The officer instructed defendant, who appeared calm, to raise his hands and lock them on top of his head. When defendant failed to comply, after several repeated commands, and instead made a movement with his right hand, the officer ordered his dog to apprehend defendant. The dog grabbed defendant with his teeth. Defendant was then taken into custody by several other officers. Defendant's clothing was found underneath his hiding place.
Officer McGowan, who observed defendant as he was taken into custody, described him as looking "a little weird." According to McGowan, defendant was able to stand and walk.
State Trooper David Timko, however, claimed that defendant was unable to stand or walk without support. According to Timko, defendant staggered, appeared off balance, grasped for support, and fell to the ground on his hands and knees. Defendant, according to Timko, spoke in a loud and boisterous manner, rambled at times, cried, and appeared very excited and nervous. His eyes were watery and bloodshot. Although Timko did not smell alcohol on defendant's breath, he believed that defendant was under the influence of some type of intoxicant. Consequently, Timko charged defendant with driving under the influence.
Defendant was transported to the Atlantic City Medical Center's emergency department at about 3:00 p.m., where he received treatment for cuts and abrasions, and a sample of his blood was obtained. State Police laboratory tests disclosed that there was no alcohol in defendant's blood. A drug test indicated that defendant had taken an undetermined amount of the tranquilizer Diazepam, commonly known as Valium.
Thereafter, defendant was transported to police headquarters by Officer Janes. En route, defendant managed to slip out of one of his handcuffs. Upon their arrival at headquarters, Janes exited the police vehicle and opened the rear door. As he attempted to assist defendant out of the vehicle, defendant pushed Janes, causing him to fall to the ground, as defendant escaped. Defendant ran down an alley and Janes radioed for help.
At about 4:20 p.m., Officer Bruno, in uniform in a marked police vehicle, saw defendant running between two houses. Since Bruno had heard the radio broadcast about defendant's escape, he yelled at defendant to stop. Defendant ignored this command and continued to run. Bruno exited his car and ran after defendant. As Bruno approached, defendant turned around and swung the handcuff that was still attached to his hand, hitting Bruno in the head and hand. Bruno tackled defendant to the ground and struggled with him for about one minute until other officers arrived, who helped Bruno handcuff defendant. Bruno injured his knee during the struggle, necessitating surgery. Defendant was then transported to police headquarters after he was apprehended.
This series of events was the focus of the initial indictment by the Atlantic County Grand Jury.See footnote 2
After failing to reach a plea bargain agreement, the prosecutor obtained a superseding indictment, No. 93-11-2816-A, which charged defendant as follows: third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7, (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), (count two); first-degree robbery, N.J.S.A. 2C:15-1, (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3), (count five); third-degree aggravated assault of a police officer, N.J.S.A. 2C:12-1b(5)(a), (counts six, eight, and nine); third-degree aggravated assault while eluding a police officer, N.J.S.A. 2C:12-1b(7), (count seven); fourth-degree eluding a
police officer, N.J.S.A. 2C:29-2b (count ten); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(1), (counts eleven and twelve); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2), (count thirteen); third-degree burglary, N.J.S.A. 2C:18-2, (counts fourteen, sixteen, eighteen, and twenty); fourth-degree theft of moveable property, N.J.S.A. 2C:20-3a, (count fifteen); third-degree theft of moveable property, N.J.S.A. 2C:20-3a, (counts seventeen, nineteen, twenty-one, twenty-three, twenty-four, twenty-five, twenty-seven, and twenty-eight); second-degree armed burglary, N.J.S.A. 2C:18-2, (counts twenty-two and twenty-six); fourth-degree credit card theft, N.J.S.A. 2C:21-6c(1), (counts twenty-nine and thirty); third-degree unlawful possession of a rifle, N.J.S.A. 2C:39-5c(1) (counts thirty-one and thirty-two); third-degree possession of a handgun without a permit,N.J.S.A. 2C:39-5b (counts thirty-three and thirty-four); third-degree escape, N.J.S.A. 2C:29-5a, (count thirty-five), and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, (counts thirty-six, thirty-seven, thirty-eight, and thirty-nine).
Prior to trial, defendant unsuccessfully moved to dismiss the superseding indictment and to reinstate the original indictment. Defendant contended that the superseding indictment was obtained because of prosecutorial vindictiveness arising from defendant's refusal to accept the prosecutor's plea offer. Prosecutorial vindictiveness, discussed in Part III, is a concept
that has received limited attention in prior opinions of this court.
Also before trial, the State moved to dismiss counts three, sixteen, and seventeen of the superseding indictment and obtained an order of severance on counts thirty-six through thirty-nine.See footnote 3
During the trial, the trial judge dismissed count six at the conclusion of the State's case. The jury acquitted defendant on counts two, four, and eight but found defendant guilty on all other remaining counts.
Degree in social work. During this period, defendant was employed in a variety of positions. Defendant was, for a while, an admitting clerk and patient representative at St. Claire's Hospital; he later worked at Montefiore Medical Center as assistant director of patient relations. In December 1990, defendant began employment with the New York Board of Education as a substance abuse prevention specialist, counseling students who were at risk of becoming involved with drugs. While working for the Board of Education, defendant also taught behavioral courses as an adjunct professor for Mercy College.
Following his discharge from the hospital in May 1984, defendant became actively involved with Alcoholic Anonymous and Narcotics Anonymous, acknowledging that he was an alcoholic and a drug addict. Defendant testified he was doing well with his recovery but fell from the sobriety wagon in November 1991, when he drank a six-pack of beer following an argument with his wife about their finances. In March 1992, defendant began using crack cocaine. Although defendant's usage was initially sporadic, by September 1992, he was consuming several grams a day. Defendant depleted his family savings and became overdrawn on all of his credit cards.
Defendant informed his supervisor at the Board of Education that he had an addiction problem and requested a thirty-day leave of absence in order to enter a residential treatment program. Defendant's request was denied and he was asked to resign.
Although he tried to gain admission to a detoxification program, defendant's name was placed on a waiting list.
Defendant, who had been living with his wife and daughter in a house that they owned on Long Island, left home on September 16, 1992. Defendant took some clothing and lived in his van for several days. He used crack cocaine several times a day during this period. Defendant eventually spent a few days at the home of a friend in Port Chester, New York. While there, defendant testified he was arrested for a motor vehicle infraction and was handcuffed by the Port Chester police; however, he escaped, and friends removed his handcuffs with a bolt cutter.
Defendant returned home and obtained some clothing and a Trump Plaza courtesy card that bore his name. Defendant then stole the Volvo and drove to Atlantic City.
Defendant further testified that while playing blackjack on the evening of his arrival in Atlantic City, he was hearing imaginary voices. He slept that night in his automobile. When he awoke, he began to experience visual and auditory hallucinations, which he had not experienced since 1984. He claimed that he saw silhouettes of imaginary people sitting in vehicles that were parked in the Trump Plaza garage. These individuals mocked him and told him that he was a failure. Consequently, defendant exited the Volvo and approached the vehicles in which these imaginary individuals were seated in order to confront his tormentors. Defendant claimed that he asked these imaginary persons to leave him alone and that they
laughed at him and made derogatory remarks. In response, defendant entered the vehicles and took "trophies" as a way of stopping the hallucinations. Defendant acknowledged that he entered some of the vehicles by breaking the windows with a gloved fist. Other cars that he entered were unlocked. Defendant placed the items that he obtained from these vehicles into the Volvo. Defendant then proceeded to the Taj Mahal where he also entered automobiles and removed property found in those vehicles. He carried the items in two suitcases to the Trump Plaza parking garage. Defendant denied that he took the items for monetary reasons.
The remainder of defendant's testimony focused on his attempt to elude the police, his initial apprehension, his escape into the swamp, and his ultimate apprehension. He claimed that he did not realize that he was doing anything wrong when he entered the automobiles and removed personal property. He did, however, realize that his actions were illegal when he was approached by the bicycle patrolmen, and he began to elude the police, although denying any specific recollection of those events. Although he denied using cocaine on October 7 or 8, 1992, he did admit that he consumed two or three Valium tablets that had been taken from one of the parked automobiles.
was very impaired. He acted impulsively in order to obtain items that he could fence in exchange for money for gambling. Erskine also opined that defendant was in a psychotic state when he was being chased by the police as evidenced by his auditory hallucinations. He did, however, act in a purposeful and knowing manner at that time.
Weiss opined that on October 7 and 8, 1992, defendant was suffering from a mental disease state in the form of cocaine abuse and dependence. In addition, defendant had secondary diagnoses which were caused by his cocaine problem, i.e., organic hallucinosis which was manifested by hearing voices and seeing things that were not there and organic delusional syndrome which was manifested by believing things that were not true. Although defendant understood the nature and quality of his acts on October 7 and 8, 1992, he suffered from a defective reason and his mental disease state prevented him from knowing that what he was doing was wrong.
In rebuttal, the State presented the expert testimony of Dr. Daniel Greenfield, who is board certified in psychiatry and addiction medicine. Greenfield concluded that although defendant had a chronic schizoaffective disorder, it was in remission at the time of the instant crimes. He explained that people suffering from schizoaffective disorder can distinguish right from wrong. In his opinion, defendant was sane at the time that he committed the criminal acts since he knew the nature and quality of his acts and was able to distinguish right from wrong.
Defendant's conduct consisted of complex, goal-directed, knowing and purposeful acts that required memory of the recent past, awareness of the present, and an ability to anticipate future consequences and events. Defendant fled from the police because he knew he was in trouble and knew that what he had done was wrong. Any delusions or auditory and visual hallucinations that defendant may have experienced as a result of his schizoaffective disorder were not powerful enough to have overcome his knowing, purposeful and goal-directed behavior.
with a four-year parole ineligibility period was imposed on count twenty-six. Concurrent five-year terms were imposed on counts one, fourteen, eighteen, nineteen, twenty, twenty-one, twenty-three, twenty-four, twenty-five, twenty-seven, twenty-eight, thirty-one, thirty-two, thirty-three, thirty-four and thirty-five. Thus, defendant's aggregate sentence is a twenty-three year prison term with a ten-year period of parole ineligibility. In addition, defendant was fined $1,450 for the Violent Crimes Compensation Board.
On appeal, defendant raises six points of error:
POINT I
DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE TRIAL COURT FAILED TO CHARGE THE JURY ON THE ISSUES OF INTOXICATION AND DIMINISHED CAPACITY. [Point Not Raised Below.]
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO DISMISSING [sic] THE SUPERSEDING INDICTMENT NO. 93-11-2816-A AND PROCEEDING ONLY UNDER INDICTMENT NO. 93-03-0758-A BECAUSE THERE WAS NOTHING SUBSTANTIALLY NEW ADDED FROM THE ORIGINAL INDICTMENT TO THE SUPERSEDING INDICTMENT.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE PROSECUTOR'S SUMMATION TO THE JURY WAS IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL.
POINT IV
DEFENDANT'S CONVICTION ON COUNT TWENTY-TWO FOR ARMED BURGLARY MUST BE REVERSED AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS ARMED AT THE TIME OF THE BURGLARY. (Not Raised Below).
POINT V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM PURSUANT TO N.J.S.A. 2C:44-3a.
POINT VI
THE TRIAL COURT COMMITTED ERROR IN IMPOSING CONSECUTIVE SENTENCES RATHER THAN CONCURRENT SENTENCES BECAUSE THE OFFENSES COMMITTED WERE ESSENTIALLY AT THE SAME TIME.
In a pro se supplemental brief, defendant raises one point of error, which alleges:
POINT I
THE PROSECUTOR'S CONDUCT DENIED DEFENDANT OF FAIR AND FUNDAMENTAL TREATMENT BY IMPROPER PROSECUTORIAL COMMENTS MADE DURING SUMMATION, IN VIOLATION OF THE UNITED STATES CONSTITUTIONSee footnote 4
As noted, defendant's allegations of error require some discussion, yet we find those allegations without merit.
if he demonstrates plain error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2. After a thorough review of the record, we are satisfied that defendant's contentions are without merit. R. 2:11-3(e)(2). We add the following comments.
Sette, supra, 259 N.J. Super. at 170. A jury charge on voluntary intoxication is required only if there exists a "rational basis for the conclusion that defendant's 'faculties' were so 'prostrated' that he or she was incapable of forming" the requisite intent.State v. Mauricio, 117 N.J. 402, 418-19 (1990). The determination of a particular defendant's intoxication is fact specific. Many cases have analyzed the defendant's consumption of intoxicants and found it to be sufficient to warrant a jury charge on intoxication. See, e.g., State v. Bey (II), 112 N.J. 123, 143-45 (1988) (holding that defendant's intoxication warranted a jury charge where defendant consumed 120 ounces of malt liquor, some straight rum and smoked a considerable quantity of marijuana during the four-and-one-half hour period before the crime and had only partial recall about the details of the offense), cert. denied, ___ U.S. ___, 115 S. Ct. 1131, 130 L. Ed.2d 1093 (1995); see also State v. Warren, 104 N.J. 571, 573-74, 578 (1986); State v. Frankland, 51 N.J. 221, 222-23 (1968); State v. Polk, 164 N.J. Super. 457, 460-63 (App. Div. 1977), aff'd o.b., 78 N.J. 539 (1979).
Other courts have found that a defendant's actions were sufficiently coherent that a jury charge was not warranted. See, e.g.,Mauricio, supra, 117 N.J. at 419-20 (finding insufficient evidence to require a jury charge where bouncer refused defendant admission to nightclub in the belief that he had already had enough to drink, and witnesses testified that defendant was "drunk," "intoxicated," and "high," but where,
during the hour preceding the crime, defendant was able to count, walk, climb stairs, change his clothes, and stand up after being wrestled down a flight of stairs, and defendant managed to elude detection by the police who arrived shortly after the shooting); see also Zola, supra, 112 N.J. at 423-25; Cameron, supra, 104 N.J. at 56-57; State v. Micheliche, 220 N.J. Super. 532, 542-43 (App. Div.), certif. denied, 109 N.J. 40 (1987).
Viewing the evidence and the legitimate inferences to be drawn therefrom in the light most favorable to defendant, it is clear that a jury charge on voluntary intoxication was not required. Although defendant claimed that he used several grams of cocaine each day during the weeks preceding the instant crimes, defendant testified that he did not consume any cocaine on the dates that the crimes were committed. Rather, he merely consumed two or three Valium tablets that he had stolen from one of the burglarized vehicles. Defendant's testimony was confirmed by blood tests taken at the hospital on the afternoon of his arrest. These tests disclosed that there was no alcohol in defendant's blood and confirmed that the only drug present in defendant's bloodstream was Valium. Moreover, defendant's testimony disclosed that he was able to recall significant events surrounding the crimes. The only incident that defendant claimed not to remember was when he was stopped by the bicycle patrol officers.
The only evidence of possible intoxication was Trooper Timko's testimony that when defendant was arrested in the marshy
area he was unable to stand or walk without support. According to Timko, defendant spoke in a loud and boisterous manner and rambled at times. Although Timko did not smell any alcohol on defendant's breath, he noticed that defendant's eyes were watery and bloodshot, and he felt that defendant was under the influence of an intoxicant. Timko's testimony, however, was contradicted by Officer McGowan who also observed defendant as he was taken into custody. According to McGowan, defendant was able to stand and walk. Additionally, Officer Jones, who had observed and spoken with defendant earlier that morning in the Trump Plaza, claimed that defendant did not stagger or sway while carrying suitcases out of the Trump Plaza parking garage.
Moreover, defendant's behavior indicated that he had not suffered a prostration of faculties. Defendant was able to burglarize several vehicles, transfer items from the burglarized vehicles into the Volvo, steal license plates and place them on the Volvo, walk while carrying two suitcases through the Trump Plaza garage, engage in a high speed chase while being pursued by police officers, run into a marshy area and escape detection for several hours, slip out of one of his handcuffs and escape from a police vehicle, and run "full speed" while being pursued by Officer Bruno.
Most importantly, voluntary intoxication was not a defense in this case since it did not negate the purposeful or knowing mental states required for the commission of the crimes with which defendant was charged. Cameron, supra, 104 N.J. at 51-52.
Dr. Erskine admitted that defendant was able to perform purposeful activities on the dates of the crimes and that his knowing capacity was not impaired.
Since the evidence did not provide a rational basis from which the jury could conclude that defendant's faculties were so prostrated that he was incapable of forming the requisite intent, no error was committed by the failure to charge the defense of voluntary intoxication.
Mere failure to stop does not constitute flight to convict a driver of eluding police. In order for jurors to find that the defendant fled or attempted to elude the police, the State must prove beyond a reasonable doubt that (he/she) knew that (he/she) was being pursued by police officers, but still did not stop.1
State v. Mendez, 345 N.J. Super. 498, 507-509 (App. Div. 2001)
Decided December 17, 2001
Before Judges Skillman, Wallace, Jr. and Wells.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 98-08-00319.
Peter A. Garcia, Acting Public Defender, attorney for appellants (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief in A-3895-99T4; Bernadette DeCastro, Assistant Deputy Public Defender, of counsel and on the brief in A-4801-99T4).
John J. Farmer, Jr., Attorney General, attorney for respondent (Johanna Barba, Deputy Attorney General, of counsel and on the brief in A-3895-99T4 and A-4801-99T4).
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
The "attendant circumstances" of eluding under N.J.S.A. 2C:29-2b are that the defendant must "hav[e] received [a] signal . . . to bring the vehicle . . . to a full stop" and the person giving the signal must have been a "police or law enforcement officer." The "forbidden conduct" is "flee[ing] or attempt[ing] to elude." The material elements of eluding do not include any required "result" of such conduct.
The only culpability requirement set forth in N.J.S.A. 2C:29-2b is "knowingly." N.J.S.A. 2C:2-2(c)(1) provides that "[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears."See footnote 44 Therefore, "unless a contrary purpose plainly appears," the culpability requirement of both the attendant circumstances of being signaled to stop by a law enforcement officer and the forbidden conduct of fleeing or attempting to elude is "knowingly."
Defendant does not dispute that the culpability requirement of the attendant circumstance elements of eluding -- that the defendant had received a signal to stop and that the person giving the signal was a law enforcement officer -- is "knowingly." However, defendant contends that because the "forbidden conduct" element of eluding includes not only "flee[ing]" but also "attempt[ing] to elude," the culpability requirement for this element is "purposely."
This argument cannot be reconciled with the legislative determination that the culpability requirement of eluding underN.J.S.A. 2C:29-2b is "knowingly" and the constructional rule of N.J.S.A. 2C:2-2(c)(1) that a culpability requirement applies to all elements of an offense unless a contrary intent "plainly appears." Although the phrase "knowingly attempts," which does not appear anywhere in the Model Penal Code, may initially appear internally inconsistent because the culpability requirement of a criminal attempt is "purposeful" conduct, N.J.S.A. 2C:5-1a, the use of the word "attempts" in the definition of a substantive offense does not necessarily reflect a legislative intent to import the law of attempt, including the "purposeful" culpability requirement, into that offense. Instead, the probable legislative intent in defining the conduct element of eluding as "flees or attempts to elude" rather than "flees or eludes" was to foreclose any argument that success in avoiding police apprehension is an element of the offense, as is the case with certain other offenses proscribed by chapter 29, such as escape (N.J.S.A. 2C:29-5).See footnote 55 The phrase "attempts to elude" makes it clear that the conduct forbidden by N.J.S.A. 2C:29-2b is the act of flight or eluding, and that the elements of the offense do not include a "result" element of success in avoiding apprehension by a law enforcement officer.See footnote 66
The Supreme Court of Pennsylvania's decision in Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996), which we relied upon in Sharpless, also turned on the distinction between "concealment" and "abandonment" of evidence. In concluding that the defendant's act of discarding drugs as he was being pursued by the police would not support a conviction for the Pennsylvania counterpart to N.J.S.A. 2C:28-6(1), the court stated:
[Defendant's] act of discarding contraband in plain view of the police does not rise to a level of conduct that constitutes the destruction or concealment of evidence as contemplated by the statute. The act of throwing the bag of cocaine while being chased by the police was nothing more than an abandonment of the evidence.
[Id. at 225.]
On the other hand, the Pennsylvania courts have recognized that a person who destroys or attempts to destroy drugs at the time of an arrest or police stop may be found guilty of evidence tampering. See, e.g., Commonwealth v. Morales, 669 A.2d 1003, 1005-06 (Pa. Super. 1996) (affirming conviction for evidence tampering of defendant who swallowed apparent heroin when stopped by police); Commonwealth v. Govens, 632 A.2d 1316, 1328-29 (Pa. Super. 1993) (affirming conviction for evidence tampering of defendant who flushed cocaine down the toilet as police entered his apartment), appeal denied, 652 A.2d 1321(Pa. 1994).
The Tennessee Court of Criminal Appeals has construed Tennessee's counterpart to N.J.S.A. 2C:28-6(1) in a similar manner. In State v. Patton, 898 S.W.2d 732, 736 (Tenn. Crim. App. 1994), appeal denied, (Tenn. 1995), the court held that a defendant who "toss[ed] aside" a bag of marijuana as the police were chasing him could not be found guilty of evidence tampering because this conduct constituted "mere abandonment" of contraband. On the other hand, in State v. Logan, 973 S.W.2d 279, 281-82 (Tenn. Crim. App. 1998), the court affirmed a conviction for evidence tampering of a defendant who "successfully destroyed the contents of twelve . . . bags [of cocaine] by placing them in the toilet."
The courts in other jurisdictions have also held, consistent with Sharpless, that simply throwing away contraband as the police approach does not constitute "concealment" that will support a conviction for evidence tampering, see e.g., Vigue v. State, 987 P.2d 204, 206-11 (Alaska Ct. App. 1999); In re M.F., 734 N.E.2d 171, 175-79 (Ill. App. Ct. 2000), but that swallowing drugs or other conduct that makes contraband unavailable to the police constitutes "destruction" of evidence that will support a conviction for this offense. See, e.g., Frayer v. People, 684 P.2d 927 (Colo. 1984) (affirming conviction for evidence tampering for breaking bottle of narcotic cough syrup during arrest); Lewis v. State, 56 S.W.3d 617, 624-26 (Texas Ct. App. 2001) (affirming conviction for evidence tampering for swallowing cocaine during police stop of vehicle).
In this case, the State's evidence showed that Timothy Mendez held a bag containing a white powdery substance, which the State hypothesized was cocaine, outside the window of a moving car during a police chase, allowing the substance to dissipate into the air and thus causing it to become unavailable as evidence. This conduct was comparable to swallowing or flushing drugs down a toilet, which the courts in other jurisdictions have held to constitute "destruction" of evidence within the intent of evidence tampering statutes similar to N.J.S.A. 2C:28-6(1). See, e.g., Morales, supra, 669 A. 2d at 1005-06; Govens, supra, 632A. 2d at 1328-29; Logan, supra, 973 S.W. 2d at 281-82; Lewis, supra, 56 S.W. 3d at 624-26. Such conduct does not constitute mere abandonment of evidence and is sufficient to support a conviction for evidence tampering.
Timothy also argues that even if the State's evidence would have supported a conviction for evidence tampering, the trial court committed plain error by failing to instruct the jury that it had to find, beyond a reasonable doubt, that the evidence he allegedly tampered with was not contained in the glassine bags found in the search of the car. However, there is nothing in the language of N.J.S.A. 2C:28-6(1) or Sharpless that precludes a defendant from being found guilty of tampering with evidence derived from the same source as unlawfully possessed contraband. Therefore, the jury verdict sheet question as to whether the evidence Timothy allegedly tampered with came from the same bags later found in the Mendez car was superfluous, and any error in the jury instructions relating to that question was harmless.
In order to convict the defendant of third degree eluding, the state must prove beyond a reasonable doubt each of the following six (6) elements:
1. That [defendant] was operating a motor vehicle on a street or highway in this state.
2. That [the officer] was a police or law enforcement officer.
3. That [the officer] signaled [defendant] to bring the vehicle to a full stop.
4. That [defendant] knew that the officer had signaled (him/her) to bring the vehicle to a full stop.
5. That [defendant] knew that [the officer] was a police or law enforcement officer.
Mere failure to stop does not constitute flight. To find flight, you must find that the defendant's purpose in leaving was to avoid being stopped by the officer.
A person attempts to perform an act if (he/she) does or omits to do anything with the purpose of performing that act without further conduct on (his/her) part, or purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step planned to culminate in the performance of that act.
A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result.
A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing" or "with knowledge" or equivalent terms have the same meaning.
(Emphasis added.)
Although the part of this instruction following the six listed elements appears inconsistent with the first part and fails to clearly specify the culpability requirement applicable to each of the elements of eluding, it seems to indicate that the culpability requirement of the attendant circumstances is "knowingly" but that the culpability requirement of the forbidden conduct is "purposely." Therefore, this instruction is inconsistent with our interpretation of N.J.S.A. 2C:29-2b, and must be modified.