On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication March 3, 1997.
Before Judges Michels, Kleiner, and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by
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.
It is not necessary to describe each of the many crimes that defendant committed. A short review of the sequence of events will suffice. Defendant, a New York resident, stole a 1984 Volvo 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. *fn1 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.
Shortly before noon on October 8, 1992, Officers Harold Cooper and Thomas McGowan were on bicycle patrol at the intersection of Arkansas and Atlantic Avenues, about one-and-a-half blocks from the Trump Plaza, when they received a radio transmission to be on the lookout for a white Volvo with New York license plates loaded with stolen property. The officers spotted a Volvo traveling from the direction of the Trump Plaza. The officers pedalled up to the Volvo, which was stopped in traffic, and ordered defendant to pull his vehicle over. Defendant, who appeared very calm, looked at the officers and drove away at a 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. *fn2
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. *fn3
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.
In his defense, defendant contended that he had little or no recollection of the events preceding his apprehension and attributed his lack of memory to either intoxication or diminished capacity. Defendant detailed his prior life's story. He acknowledged that he had three prior convictions for third-degree crimes, two in 1981 and one in 1984.
In 1983, defendant was diagnosed as having a schizoaffective disorder, severe depression, and a substance abuse problem. Defendant was hospitalized at the Mid-Hudson Psychiatric Center on three occasions between June 1983 and May 1984.
Following his discharge in May 1984, defendant earned an associates degree in business administration, a bachelor's degree in human behavior, and started earning credits towards a Masters 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.
As part of his defense, defendant presented two board certified psychiatrists, Dr. Frederick Erskine and Dr. Kenneth Weiss. The testimony of each deserves recounting.
Erskine testified that defendant has antisocial tendencies as manifested from his high school days when he began to use drugs. Defendant was diagnosed as psychotic with a schizoaffective disorder and hallucinations during his 1983-1984 hospitalizations. People with this disorder typically have manic-depression, schizophrenic reactions, delusions, hallucinations, disordered thinking, bad judgment, impulsiveness and distract-ability. Defendant, however, was in remission following his discharge from the hospital until November 1991, when he began a downward spiral. Defendant entered the manic phase of a manic-depressive reaction, and he began exercising bad judgment and acting impulsively.
Erskine opined that defendant was psychotic due to his schizoaffective disorder, delusional, in a manic episode, and not thinking in a straightforward manner at the time he broke into the vehicles. Although defendant's cognitive capacity was fairly intact and he had the ability to perform purposeful, goal-directed activities and to understand the nature and quality of his acts, defendant was unable at the time to understand that what he was doing was wrong. Defendant's ability to determine right from wrong was diminished. Defendant's reasoning and knowing capacities were not impaired, but his judgmental capacity 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 ...