SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
v.
SANTINO J. MICELLI,
a/k/a SANTINO
J. MICELI,
a/k/a SANTINO
MICELI,
________________________________________________________________
|
Submitted December 20, 2011 - Decided
Before Judges Fisher, Baxter and Nugent.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 09-01-0132.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor,
attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant
Santino Micelli appeals from his May 21, 2010 conviction on a charge of
third-degree eluding police, N.J.S.A. 2C:29-2b, as a lesser included
offense of second-degree eluding.
The judge imposed a five-year term of probation, subject to 364 days in
the Bergen County jail. On appeal,
defendant raises the following claims:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF
UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE.
II. THE DEFENDANT'S
RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE IMPROPER ADMISSION OF PRIOR MOTOR VEHICLE VIOLATIONS IN AN
ELUDING PROSECUTION. (Not Raised
Below).
A. The
evidence was improperly admitted.
B. The
trial court failed to provide the jury with a proper limiting instruction as
required by the law.
III. THE DEFENDANT'S
RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ART. 1, ¶ 10 OF THE NEW JERSEY CONSTITUTION AND RIGHT
TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION WERE VIOLATED BY [THE] TRIAL COURT'S REFUSAL TO ALLOW
CONFRONTATION ON THE CRITICAL ISSUE IN THE CASE: IDENTIFICATION.
IV. THE DEFENDANT'S
RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT
SHOULD HAVE BEEN EXCLUDED. (Not Raised Below).
V. THE DEFENDANT'S
RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE INCOMPLETE, ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF
ELUDING. (Not Raised Below).
A.
The instruction on the law of eluding, which included attempted eluding, was
incomplete, erroneous and prejudicial.
B.
The trial court failed to instruct
jurors that the law of attempt requires purposeful conduct and that they cannot
find that the defendant knowingly attempted to elude the police.
VI. THE DEFENDANT'S
RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY PROSECUTORIAL MISCONDUCT.
(Partially Raised Below).
VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ART 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF
TRIAL ERRORS. (Partially Raised
Below).
We affirm.
I.
On
the night of August 23, 2008, members of the Elmwood Park Police Department
established a driving while intoxicated (DWI) checkpoint at the intersection of
Route 46 and Boulevard.[1] The DWI checkpoint consisted of flares
and cones to "funnel" drivers into a single lane where they were met
by police officers described as "greeters." Detective Thomas Kochis was one of fifteen officers
participating in the DWI checkpoint that night, beginning
at 11:00 p.m. and ending at 3:30 a.m. on
August 24.
At
approximately 2:30 a.m. on August 24, a blue Suzuki caught the attention of
Detective Kochis because the vehicle slowed down, and nearly stopped, 300 yards
back from the point where drivers were approached by the
"greeter." According to
Detective Kochis, such behavior was suspicious because it signified that the
driver was "doing something . . . illegal inside the car, maybe changing
positions." Because of the
driver's suspicious behavior, Detective Kochis signaled to Sergeant Michael
Kassai "to keep an eye on th[e] vehicle." As the Suzuki drew closer to the staging area, its speed
increased. When it became clear
that the vehicle was accelerating, and that the driver of the Suzuki did not
intend to stop at the checkpoint, Detective Kochis "began to shine [his]
flashlight directly at the driver and began to order him to stop." Kochis was only "a few feet from
the vehicle" and was able to get a good look at the driver, whom Detective
Kochis described as a white male, in his late thirties or early forties, thin,
with long brown hair. Detective
Kochis testified that he was only two to three feet away from the vehicle at
the time he used his flashlight to illuminate the driver's face. He also testified that the DWI
checkpoint was well-lit.
In
a loud voice, Kochis ordered the driver to stop. Several of the other officers were yelling the same thing, but
the Suzuki sped away. In fact, the
driver "blew through both of the stop signs" at the DWI
checkpoint.
After
stopping briefly at the red light at the corner of Boulevard, the car
"revved" its engine, and made a right turn at the red light, which
was prohibited at that particular intersection. A police vehicle pursued the Suzuki, but by the time the officers found the vehicle a little while later a
half-mile away, it was in a parking lot next to a bank. The vehicle had sustained "heavy
front end damage," and one of the axles was broken. The key was still in the ignition. Numerous documents were strewn about in
the passenger compartment, including personal letters and bills bearing the
name of defendant, Santino Micelli.
Several open containers of beer, and some unopened bottles as well, were
found in the passenger compartment.
By
calling the Elmwood Park police dispatcher, Detective Kochis learned that the
owner of the vehicle was Claire Lune Daniels, who lived in Rochelle Park. Daniels told the police dispatcher that
defendant Santino Micelli was her son, and that he had been driving her car
that night.
During
cross-examination of Detective Kochis, defense counsel attempted to question
the detective concerning the Attorney General Guidelines (Guidelines)
for photo identifications.[2] The judge barred the defense from doing
so because Detective Kochis was not the person responsible for setting up the
photo identification on the computer.
The judge directed defense counsel to reserve her cross-examination on
the subject of the Guidelines until Lieutenant DePasquale took the
stand.
Detective
Kochis testified that he issued a total of "eight or nine summonses"
to defendant that night, including failure to observe a traffic control device,
making an improper turn on a red signal, failure to obey traffic officers
directing traffic, careless driving, reckless driving, driving while suspended,
and possession of an open container of alcohol in a motor vehicle. He also explained that defendant "had
some outstanding tickets as well."
During
cross-examination, defense counsel asked Detective Kochis whether he or anyone
else who was working on the case had dusted the Suzuki for fingerprints. The detective answered, "no, we
did not. It was not necessary." Defendant did not object to that
answer.
Detective Kochis also
testified that at approximately 4:00 a.m. on August 24, he returned to police
headquarters because Lieutenant DePasquale wanted to show him a photograph on DePasquale's
computer monitor. Detective Kochis
identified the person in the photograph as "[t]he driver of the vehicle
that night." He was "100
percent" sure.
Sergeant
Kassai testified that he was in charge of the DWI checkpoint on the night in
question. He told the jury that
Detective Kochis drew his attention to "an older model Suzuki" by stating "Sarge, look at this car
coming up." At the time,
Detective Kochis was only ten feet away from Sergeant Kassai. Sergeant Kassai's testimony describing
the vehicle's progress through the DWI checkpoint mirrored the description
provided by Detective Kochis.
Sergeant Kassai explained that because of the unusually slow pace of the
Suzuki, he became suspicious that the driver "was trying to conceal
something[.]" For that reason,
he kept his attention focused on the vehicle, and when the driver sped through
the checkpoint without stopping, he was able to get a good look at the driver's
face. When he returned to police
headquarters at approximately 4:00 a.m., he viewed the same computer photograph
that Detective Kochis had viewed a little earlier. Kassai identified the person depicted in the photograph as
the driver of the Suzuki that had sped through the checkpoint a few hours
earlier.
The State called defendant's mother, Claire Lune
Daniels, to the stand. She
testified she was not aware that her car was missing on the night in question
until police officers came to her home and told her that her car had been found
crashed against a curb in Elmwood Park.
She insisted that she told the officers who came to her home that she
had not given her son permission to use her car that night, and that he would
never take her car without her permission. When asked whether she had told the Elmwood Park police dispatcher
that her son had been using her car on the night of August 23, 2008, she
responded "I don't know if I told him that or if I thought he did, I'm not
sure what I said, but I know something is on the tape, you know, whatever I
said." Shortly thereafter,
the prosecutor played for the jury the audiotape of Daniels's conversation with
the dispatcher, in which she was heard telling the dispatcher that her son had
been using her car that night.
After the State rested, defendant presented the
testimony of Jennifer Contrano, his fiancé. She testified that at 7:30 p.m. on August 23, 2008, she
drove to defendant's mother's home, where she picked up defendant, and drove
him to the apartment they shared in Lyndhurst. The two went to sleep early because they were planning to
leave the apartment early the next morning for a camping trip. Contrano explained that when she
arrived at defendant's mother's home on the night in question, defendant's
mother "wasn't even home. She
had the car." When Contrano
was asked whether she was sure that defendant was with her on the night of
August 23, Contrano answered, "I'm positive."
The jury acquitted defendant of second-degree
eluding police, but returned a guilty verdict on the lesser included offense of
third-degree eluding.
II.
In
Point I, defendant asserts that the judge's pretrial order permitting the
admission of evidence of Kochis's and Kassai's photo identification denied him
a fair trial. In particular, he
asserts that because both officers were shown only a single photograph by
Lieutenant DePasquale, and because DePasquale essentially told each officer
that the person depicted on the computer screen was the driver who had sped
through the checkpoint, the photo identification was so impermissibly
suggestive that the judge erred when he refused to order its exclusion. In contrast, the State argues that even
if the circumstances surrounding the photo identifications made by Kochis and Kassai were impermissibly
suggestive, the photo identifications made by each officer were
overwhelmingly
reliable, and therefore satisfied the then-existing standards governing photo identifications.
The
procedures governing out-of-court photo identifications were significantly
altered by the Court's recent opinion in State v. Henderson, 208 N.J.
208 (2011), but because the Court's opinion in Henderson applies only
prospectively, id. at 220, we will not apply Henderson, but will
instead apply the standards existing at the time of defendant's trial.
At
the time of defendant's trial, the governing standard consisted of a
two-prong test to determine
whether an out-of-court
identification was admissible at trial.
The first prong required an analysis of whether the out-of-court
identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J.
493, 503-04 (2006). The second
prong focused on whether the impermissibly suggestive procedure was nonetheless
reliable, taking into account the totality of the circumstances. Ibid. The Herrera procedures were based upon the decision
of the United States Supreme Court in Manson v. Brathwaite, 432 U.S.
98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
In Herrera,
our Supreme Court identified the factors to be considered in determining the
reliability of an identification:
[T]he opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of attention, the accuracy of his
prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation. Against
these factors is to be weighed the corrupting effect of the suggestive
identification itself.
[Herrera, supra, 187 N.J. at 503 (citing
Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253,
53 L. Ed. 2d at 154).]
"Reliability is the linchpin
in determining the admissibility of identification testimony."
State v. Adams, 194 N.J.
186, 204
(2008) (quoting State v. Madison,
109 N.J. 223, 232 (1988)) (internal quotation marks omitted).
Short
of a showing of "a very substantial likelihood of irreparable
misidentification," determining the reliability of an out-of-court
identification was a decision for the jury, not the court. Manson, supra, 432 U.S.
at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155 (citation
omitted).
"The
strength or credibility of the identification [was] not the issue on
admissibility; that [was] a matter of weight, for the factfinder, under appropriate instructions
from the trial judge." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied,
410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602
(1973). "[T]he showing of a
single photograph ordinarily goes only to weight, and not admissibility, of an identification." Id. at 453 (citation omitted).
Under
the two-prong Herrera test, defendant must first demonstrate that the
manner in which DePasquale showed the mug shot to Kassai and Kochis was
impermissibly suggestive. In Herrera,
the police asked a carjacking victim to come with them to take a look at the
person who had been found in possession of the victim's car. Herrera, supra, 187 N.J.
at 506. The police told the victim,
"we found your car, we located your car with somebody in it, we want you
to come with us to identify the person." Ibid.
The Herrera Court found this out-of-court procedure to be
impermissibly suggestive because the officers' explanatory statements "may
have influenced the victim to develop a firmer resolve to identify someone he
might otherwise have been uncertain was the culprit." Ibid.
The procedure used by Lieutenant DePasquale in presenting
the photo of defendant to both Kassai and Kochis was every bit as suggestive as
the procedure used by the officers in Herrera. Just as the officer in Herrera told the carjacking
victim that he wanted him to "identify the person" found in the
victim's car, ibid., here, DePasquale presented defendant's photograph
to Detective Kochis and said, "I've got a picture of the person that was
possibly driving the car." The
comment Lieutenant DePasquale made to Sergeant Kassai while showing Sergeant Kassai
the photograph of defendant was even more suggestive: "this is the guy that [Kochis] was
looking for . . . [t]his is the guy that was involved with Detective [Kochis]."
As
we have noted, the first Herrera prong requires an evaluation of whether
the identification made by the witness represents his or her own independent
recollection or whether it instead resulted from the suggestive words or
conduct of a law enforcement officer.
Id. at 503. In
applying the first prong, we start by recognizing that showing a witness a
single suspect or a single photograph is by itself suggestive. Id. at 504. That fact, when combined with the very
pointed remarks made by Lieutenant DePasquale, renders the procedure
"impermissibly suggestive," thereby satisfying the first of the two Herrera
prongs. Id. at 503.
Turning
to the second prong, Herrera instructs that even if the procedure
utilized was "impermissibly suggestive," the identification need not
be suppressed if it was "nevertheless reliable." Id. at 504. In State v. Adams, 194 N.J.
186, 205-06 (2008), the Court found an identification reliable despite its
suggestive nature because 1) all "witnesses had an opportunity [while
paying attention] to view the defendants they identified" from a short
distance with adequate -- though not ideal -- lighting; 2) the witnesses'
descriptions of their assailants were similar in most respects; and 3)
"all of the identifications were made within two days of the
incident."
In
comparison, the identifications made by Kochis and Kassai are even more
reliable: both officers were
paying careful attention to the car as it sped through the checkpoint; both had
an opportunity to view the driver's face under ample lighting; they gave nearly
identical descriptions of the driver; and they viewed the photographs only two
hours after the incident.
Moreover, the lighting was excellent, as the DWI checkpoint was
illuminated by bright overhead lighting at the intersection of Route 46 and
Boulevard. The police installed
several light stanchions at the DWI checkpoint that provided additional
illumination, which enabled both Kochis and Kassai to get a good view of
defendant from only a few feet away as he sped by. "Weighing the above factors in favor of reliability against
the corrupting effects of the impermissibly suggestive procedure, we are
satisfied that the identification procedure was reliable and did not result in
a substantial likelihood of misidentification." Herrera, supra, 187 N.J. at 509.
Our
dissenting colleague is of the view that by holding that the identifications
made by Kochis and Kassai were reliable, we have exercised original
jurisdiction in a circumstance where we should have refrained from doing
so. In particular, he concludes
that because the judge never reached the second Herrera prong, and
therefore made no findings on the reliability of the officers' identifications,
we should have remanded to the trial court to enable the judge to make findings
on that subject, rather than make our own determination. While we have no quarrel with Judge
Fisher's observation that appellate courts should generally refrain from the
exercise of original jurisdiction, there are instances where doing so is
proper. Ladenheim v. Klein,
330 N.J. Super. 219, 224 (App. Div. 2000) (holding that where the
evidence is so one-sided that it will admit of only one interpretation, an
exercise of original jurisdiction is appropriate). This is such a case.
III.
In
Point II, defendant argues that the trial court's failure to sua sponte exclude
the evidence of defendant's previous motor vehicle violations caused the jurors
to infer that defendant had "a propensity for violating motor vehicle
laws," thereby denying him a fair trial. In particular, defendant argues that the trial court
committed plain error, first by allowing the State to proffer evidence that
defendant committed motor vehicle violations while eluding police, and second
by permitting the prosecutor to elicit testimony that defendant had "some
outstanding tickets" and was driving while his driver's license was
suspended. Different principles
govern our review of these two claims.
As
for the motor vehicle offenses committed while defendant was in the process of
eluding police, such motor vehicle offenses are properly brought before the
jury as part of the jury's evaluation of whether the defendant is guilty of the
indictable crime. State v.
Muniz, 118 N.J. 319, 331-34 (1990). In Muniz, the Court held that the State should be
permitted to present evidence of the motor vehicle violations to assist the
jury in determining the elements of the indictable charge that involve
operation of the vehicle in a manner likely to cause injury or death, so long
as the jury is instructed that the motor vehicle offenses will be decided by
the judge, and not by the jury. Id.
at 332. That is exactly what
happened here. As required by Model
Jury Charge (Criminal), "Eluding an Officer" (2004), the judge
instructed the jury that if it found that the State proved all of the elements
of eluding police beyond a reasonable doubt, the jury should continue its
deliberations to consider a seventh element, whether the flight or attempt to
elude "created a risk of death or injury to any person[.]" In connection with that instruction, the
judge advised the jury that it was entitled to "infer [a] risk of death or
injury to any person if defendant's conduct in fleeing or in attempting to
elude the officer involved a violation of the motor vehicle laws of the
State."
At
that point, the judge specified the particular motor vehicle offenses defendant
was charged with committing. He
listed the following: improper
turn at a traffic signal; failure to observe a traffic signal; careless
driving; improper right turn; driving while suspended; reckless driving; consumption
of alcoholic beverages in a motor vehicle; failure to obey the officer's
direction; and operating an uninsured motor vehicle. With the exception of the latter charge, operating an
uninsured motor vehicle, which should not have been listed, State v. DiRienzo,
53 N.J. 360, 378 (1969), all of the other offenses were properly listed. Muniz, supra, 118 N.J.
at 331-32.
The
Court's recent decision in State v. Rose, 206 N.J. 141, 180
(2011), does not compel a contrary result. Although in Rose the Court abolished the admissibility
of res gestae evidence, the Court established an exception for situations in
which the other crimes evidence directly proves the charged offense, and where
the conduct constituting the other crimes evidence is performed contemporaneously
with the charged offense and facilitates the crime. Ibid.
Such is the case here. For
all of these reasons, we reject defendant's contention that the judge erred by
failing to sua sponte exclude the evidence of the motor vehicle offenses defendant
committed while operating the motor vehicle. We do not view the judge's passing, but erroneous, reference
to operating an uninsured vehicle as harmful error.
We
turn to the judge's failure to sua sponte exclude the testimony of defendant's outstanding motor vehicle
tickets. The State acknowledges
that mention of these outstanding tickets implied that defendant had committed
prior motor vehicle offenses. Nonetheless,
despite the improper mention of these past motor vehicle infractions, we are satisfied
that this error does not warrant reversal of defendant's conviction. State v. Bakka, 176 N.J.
533, 551 (2003) (holding that erroneous admission of evidence concerning
driving with a suspended license does not create prejudice warranting reversal
where the evidence of guilt is substantial). Here, the evidence of defendant's guilt was
overwhelming. The vehicle
defendant was operating was found moments later containing numerous documents
bearing his name, his mother admitted to the police dispatcher that defendant
was driving her car on the night in question, and two trained police officers
identified defendant as the person who sped through the DWI checkpoint. Under such circumstances, we deem
harmless the erroneous admission of testimony that defendant was driving while
his license was suspended. We
reject the claims defendant advances in Point II.
IV.
In
Point III, defendant argues that the judge's refusal to permit him to
cross-examine Detective Kochis concerning law enforcement's failure to abide by
the Guidelines on photo identification procedures denied him a fair
trial and impermissibly eroded his Sixth Amendment right of confrontation. This argument lacks sufficient merit to
warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Suffice it to say, the judge properly concluded that because Detective
Kochis was not the person who established the single-photo identification
process, he was not the correct witness to be cross-examined on the subject of
the Guidelines. As is
evident from the record, the judge permitted extensive cross-examination of
Lieutenant DePasquale on the Guidelines, as it was Lieutenant DePasquale
who established the parameters of the photo identification. We reject the claim defendant advances
in Point III.
V.
In
Point IV, defendant argues that the trial judge erred when he sua sponte failed
to exclude Detective Kochis's testimony that it was "not necessary"
for the police to dust the Suzuki for fingerprints. Defendant asserts that such testimony impermissibly invaded
the province of the jury. Because
defendant failed to object to this testimony at the time it was offered, we
will not reverse on this ground unless the testimony was clearly capable of
producing an unjust result. R.
2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).
As
is evident from the record, the testimony in question came in response to
defense counsel's question on cross-examination asking Detective Kochis whether
he or anyone else had dusted the car for fingerprints. Kochis answered, "no, we did
not. It was not
necessary." The testimony to
which defendant now objects was not elicited by the State, but instead came as
a fair response to a question posed to Detective Kochis on
cross-examination. Notably, trial
counsel did not object to the answer, nor did she ask any form of follow-up
question. Those omissions strongly
suggest that she perceived no unfair prejudice from Detective Kochis's answer.
Moreover,
Detective Kochis's statement did not offer an elaborate opinion as to why he
thought fingerprinting was unnecessary, nor did he provide a detailed
explanation as to its irrelevance.
Instead, he offered a single, off-hand remark so insubstantial as to
have no capacity to deny defendant a fair trial. In contrast, Detective Kochis could have commented that
because the identity of the driver was known to law enforcement, fingerprinting
was unnecessary, but he did not offer any such additional explanation. His isolated remark did not deny
defendant a fair trial.
Defendant's
reliance on State v. Vandeweaghe, 177 N.J. 229 (2003), is
misplaced. There the Court
disapproved of a psychiatrist's testimony that the defendant, who testified,
had "a longstanding history of lying." Id. at 239.
The Court observed that the assessment of credibility is a jury
function, and the psychiatrist's testimony impermissibly usurped that
function. Ibid. Detective Kochis's isolated and
innocuous remark here is a far cry from the highly prejudicial testimony the
Court criticized in Vandeweaghe.
Defendant's
reliance on State v. Boston, 380 N.J. Super. 487, 494 (App. Div.
2005), certif. denied, 186 N.J. 243 (2006), is similarly
misplaced. There, we held that the
expert witness had essentially opined that the defendant was selling narcotics
and that such testimony was impermissibly used "to fill in the gaps"
of the State's case, in which no drugs were found on the defendant or in any
area within the defendant's reach.
Id. at 493. Here,
for the reasons we have already noted, the State's case was extremely strong
and, unlike in Boston, Detective Kochis did not essentially opine
defendant was guilty. If there was
any error in the admission of Detective Kochis's testimony regarding dusting
the Suzuki for fingerprints, it had no capacity to create an unjust result. R. 2:10-2. We reject the claim defendant advances
in Point IV.
VI.
In
Point V, defendant asserts that the judge committed prejudicial error in his
charge to the jury when he "failed to explain
[to the jurors] the law of attempted eluding and how the defendant could be
convicted of attempted eluding." Specifically, defendant
claims that the judge did not properly explain the appropriate state of mind
applicable to an attempted crime, namely, that defendant acted "purposely." Instead, the judge instructed the jury
that the State was required to prove "knowing" conduct.
As
the State correctly argues, the "exact argument" defendant advances
here was rejected in State v. Mendez, 345 N.J. Super. 498 (App.
Div. 2001), aff'd, 175 N.J. 201 (2002). In Mendez, the defendant, like defendant
here, argued that because "eluding may consist of an 'attempt to elude,'
the court was required to instruct the jury in accordance with the law of
attempt, specifically that the State had to prove that defendant had the purpose
to elude the police." Id.
at 504. We held that "[t]he 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." Ibid.
As a result, we concluded that the
trial court did not err in referring only to the "knowingly" state of
mind standard -- and not the "purposely" standard -- in instructing
the jury on the law of eluding. Id.
at 511.
The
present appeal cannot be distinguished from Mendez. Indeed, the judge's jury charge
repeated verbatim the statutory language: "Any person, while operating a
motor vehicle . . . who knowingly flees or attempts to elude any police or law
enforcement officer . . . commits [the crime of eluding]." N.J.S.A.
2C:29-2b.
We
are satisfied that the judge correctly explained
the statutory offense of eluding police. For that reason, we reject the claim
defendant advances in Point V.
VII.
In
Point VI, defendant argues that his conviction should be vacated because the
prosecutor's summation improperly 1) suggested that
the jury disregard the Guidelines in making its decision; 2) informed
the jurors that defendant's "presumption of innocence has come to an end
once the State has presented its case"; 3) noted that defendant's alibi
suffered from procedural defects; and 4) told the jury, "I'm sorry, ladies
and gentlemen. I'm sorry the defense cannot give the State the same courtesy
that the State gave to the [d]efense by not interrupting and that I keep having
to go back a little bit and repeat myself."
In
evaluating a claim of prosecutorial misconduct, we will not reverse on that
ground unless the conduct in question is so egregious as to deprive a defendant
of a fair trial. State v.
Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S.
858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Prosecutors "are expected to make
vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J.
76, 82 (1999). "Within
reasonable limitations," prosecutors are "afforded considerable
leeway in making opening statements and summations." State v. DiFrisco, 137 N.J.
434, 474 (1994) (citation and internal quotation marks omitted).
Here,
the prosecutor's summation did not exceed the bounds of an acceptable
concluding argument. First, the prosecutor reminded the jury that the Guidelines
apply to line-up identification procedures and to photo arrays, but not to the
presentation of a single photograph which the prosecutor described as akin to a
show-up identification. The judge
had already approved such an approach in overruling defendant's objection to
that portion of DePasquale's testimony.
For that reason, we cannot fault the prosecutor for advancing such an
argument.
Second,
the prosecutor did not mislead the jury regarding defendant's presumption of
innocence when she said, "You were asked to presume the defendant innocent
until right now because now you have had all of the evidence . . . [t]he
evidence that's talked about it's the State's burden [sic]." The court did not err in allowing the
prosecutor to argue, essentially, that the State had presented sufficient
evidence to overcome the presumption because the "presumption is an
instrument of proof created by the law in favor of one accused, whereby his
innocence is established until sufficient evidence is introduced to overcome
the proof which the law has created." State v. Hill, 199
N.J. 545, 559 (2009) (emphasis added) (citation and internal quotation
marks omitted).
Defendant's
third challenge to the prosecutor's summation is equally unconvincing. Defendant argues that the prosecutor
improperly stated that defendant's girlfriend, Contrano, who provided alibi testimony
for him, contacted police "for the first time on November 2nd . . . at the
eleventh hour before a trial date." The State laid a proper foundation for discussing this
pre-disclosure silence, and therefore, the prosecutor was entitled to comment
on Contrano's delay in providing an alibi. See State v. Silva,
131 N.J. 438, 446-49 (1993) (observing that "[w]hen
an alibi witness has a close relationship with the accused, a jury can infer
that [a proper foundation to question the delayed alibi was laid because] the
alibi witness's natural conduct would be to report the alibi to the authorities").
In light of Silva, we
reject defendant's challenge to the prosecutor's remark about Contrano's delay
in providing an alibi for him.
Fourth,
we reject defendant's contention that the prosecutor improperly
"disparag[ed] trial counsel."
The record shows that defense counsel interrupted the prosecutor's
summation on seven separate occasions before the prosecutor told the
jury, "I'm sorry the defense cannot give the State the same courtesy that
the State gave the [d]efense by not interrupting and that I keep having to go
back a little bit and repeat myself." This was an extraneous remark that contained "nothing that would aid the jury in determining the
defendant's guilt or innocence," State v. Williams, 113 N.J.
393, 452 (1988), and was consequently not proper. However, the prosecutor's remark simply stated that which
was already readily apparent to the jury, namely, that the defense attorney's
interruption forced the prosecutor to "go back a little bit and repeat [her]self." While it would have been preferable for
the prosecutor to refrain from suggesting that defense counsel was not being
courteous, the prosecutor's remark was not so extreme as to deny defendant a
fair trial. We reject the
claim of prosecutorial misconduct defendant advances in Point VI.
VIII.
Last,
defendant argues that "[a]ny single error raised by the defendant should
be sufficient to require a new trial . . . [but] [c]learly, all these errors,
when considered together, could have affected the outcome of the
trial."
We
have identified three errors: the
improper reference to defendant's outstanding motor vehicle summonses;
Detective Kochis's remark that it was "not necessary" to dust the
Suzuki for fingerprints; and the prosecutor's remark about defense counsel's
repeated interruptions of her summation.
In the aggregate, these three errors fall far short of denying defendant
a fair trial.
|
FISHER, J.A.D., dissenting.
I
join in the majority's opinion with the sole exception of Section II, in which
my colleagues affirm the trial judge's pretrial determination at the conclusion
of a Wade[3] hearing,
where he found admissible the State's evidence of the out-of-court eyewitness identifications
made by two police officers; the officers had witnessed a vehicle's failure to
stop at a DWI checkpoint.
As
my colleagues correctly observe, the eyewitness identifications in question
were governed by the Manson/Madison[4]
test, which consists of two prongs.[5] The first prong requires a
determination of whether the identification procedure was impermissibly
suggestive. State v. Herrera,
187 N.J. 493, 503-04 (2006).
The second prong focuses on the identification's reliability -- because
"[r]eliability is the linchpin," Madison, supra, 109 N.J.
at 232 -- and specifically requires consideration of "the opportunity of
the witness to view the criminal at the time of the crime, the witness' degree
of attention, the accuracy of his prior description of the criminal, the level
of certainty demonstrated at the confrontation, and the time between the crime
and the confrontation." Manson, supra, 432 U.S. at
114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.
In
considering the first prong, my colleagues have determined -- and I agree --
that the procedure utilized here was impermissibly suggestive. The record reveals that defendant was
unknown to the two police officers who watched as a vehicle failed to stop at their
DWI checkpoint. Further
investigation suggested defendant was the driver of the vehicle,[6]
and, approximately two hours later, one of the witnesses, Detective Kochis, was
shown a computer screen containing a single image (a mugshot) of defendant;
while showing him the image, the investigating officer told Detective Kochis it
was "a picture of the person that was possibly driving the car." Detective Kochis positively identified
the driver of the eluding vehicle as the person depicted in the computer
image. The other witness, Sergeant
Kassai, was similarly told that "[t]his is the guy [Detective Kochis] was
looking for." As the majority
has observed, these types of comments are closely akin to those found in Herrera,
supra, 187 N.J. at 506,[7]
as having "influenced the victim to develop a firmer resolve to identify
someone he might otherwise have been uncertain was the culprit." Whether or not viewed as a violation of
the 2001 Attorney General Guidelines that were then and remain
applicable to photographic identifications[8]
-- and I think there is no doubt that the Guidelines applied to the procedure
in question, although the trial judge ruled otherwise, nor any doubt that the
Guidelines were violated -- the exhibition of a single photograph of a suspect,
coupled with highly suggestive comments, overwhelmingly demonstrates that the
procedure was impermissibly suggestive, as my colleagues and I agree.
The
majority proceeded to conclude that the evidence supported a finding that the
identifications were reliable. Our
disagreement springs from the fact that the majority's view of the evidence
relevant to the second prong bears little resemblance to the trial judge's and
fails to account for the trial judge's erroneous determination on the first
prong. Unlike the majority, the
trial judge found the procedure was not impermissibly suggestive,
apparently because, in his view, police officers are impervious to
suggestiveness. And, although some
of the statements made by my colleagues regarding the reliability factors could
represent a principled approach to the evidence adduced at the Wade
hearing, the fact persists that the trial judge did not make those findings.
It
is important to emphasize that under the Manson/Madison test, the
two prongs are not mutually exclusive.
If a consideration of the first prong militates in favor of a finding of
impermissible suggestiveness -- as we have found -- then the Wade judge
must "weigh[]" the reliability factors "against the corrupting
effects of the impermissibly suggestive procedure." Herrera, supra, 187 N.J.
at 509. There is no doubt that the
trial judge failed to do that. How
could he? Because he did not find
the procedure to be impermissibly suggestive, the judge could not possibly have
weighed its corrupting effect on the other reliability factors.[9]
Unlike
my colleagues, who appear to have exercised original jurisdiction on the Wade
issues,[10]
I am unwilling to express a view of the weight of the evidence since I was not
present when the witnesses testified.
Rather than hazard a view of the evidence from a cold record, I would
remand for a re-examination of the second prong, including -- for the first
time -- the trial court's weighing of the corrupting effect of the police
procedure in light of our unanimous conclusion that the procedure was
impermissibly suggestive.
I
lastly note that I would not require further findings from the same trial judge
but would remand for a new Wade hearing to be conducted by a judge who
has not already opined on the facts.
Accord State v. Henderson, 397 N.J. Super. 398,
416-17 (App. Div. 2008), aff’d as modified, 208 N.J. 208 (2011); State
v. Gomez, 341 N.J. Super. 560, 579 (App. Div.), certif. denied,
170 N.J. 86 (2001). Such a
remand would not necessarily require a new trial. If the new Wade determination resulted in a finding
that evidence of the out-of-court identifications remains admissible, then
there would be no reason to upset the judgment of conviction;[11]
but, if it were determined that evidence of the out-of-court identifications
was inadmissible, then defendant would be entitled to a new trial. Henderson, supra, 397 N.J.
Super. at 417; State v. Herrera, 385 N.J. Super. 486, 500
(App. Div. 2006).
|
[1] The actual
name of the roadway is Boulevard, with businesses located on that roadway
bearing addresses such as 102 Boulevard.
[2] The full
title of the 2001 document is Attorney General Guidelines for Preparing and
Conducting Photo and Live Lineup Identification Procedures.
[3]United
States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
[4]Manson v.
Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d
140 (1977); State v. Madison, 109 N.J. 223 (1988).
[5]Our Supreme
Court's recent watershed decision in State v. Henderson, 208 N.J.
208 (2011), which revamped the manner in which courts should examine the
reliability of eyewitness identifications, will not take effect until
"thirty days from the date this Court approves new model jury charges on
eyewitness identification," id. at 302, an event that has yet to
occur.
[6]Investigation
revealed that the vehicle's owner was defendant's mother, who was questioned
and confirmed that defendant last had possession of the vehicle. This prompted the computer search for
defendant's mugshot.
[7]Herrera
was decided prior to the identifications in question in this case.
[8]The Attorney
General Guidelines for Preparing and Conducting Photo and Live Lineup
Identification Procedures (Apr. 18, 2001), are appended to the Court's
opinion in Herrera, supra, 187 N.J. at 511-20.
[9]I agree with
the majority's implicit disregard of the trial judge's determination that a
different standard applies when the eyewitness is a police officer. Although police officers are no doubt
cognizant of the importance of accurate identifications, that is no reason to leap
to the assumption that police officers always make reliable
identifications. Certainly the
experience and training of police officers is a factor to be weighed but only
with regard to the factors contained in the second prong of the Manson/Madison
test; that an eyewitness is also a police officer does not present a basis for
ignoring the corrupting effect of an impermissible identification procedure.
[10]Rule
2:10-5 permits appellate courts to exercise original jurisdiction, but
"only with great frugality and in none but a clear case free of doubt,"
Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003), certif.
denied, 179 N.J. 310 (2004), and ordinarily only "to end
perpetual or lengthy litigation," Allstate Ins. Co. v. Fisher, 408 N.J.
Super. 289, 301 (App. Div. 2009).
The power is not to be exercised in order to "weigh[] evidence
anew" or to "mak[e] independent factual findings." Cannuscio v. Claridge Hotel &
Casino, 319 N.J. Super. 342, 347 (App. Div. 1999).
[11]Defendant,
of course, would be entitled to appeal that new determination.
