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State v. Hogan

January 05, 2001

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN HOGAN AND JAMES KENNA, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, SGJ 99-09-00163S.

Before Judges Baime, Wallace, Jr. and Carchman.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 13, 2000

This appeal presents novel questions concerning the existence and scope of a prosecutor's duty to instruct a grand jury on the law relating to defenses and justifications. Also at issue is whether the indictment against defendants was tainted by prosecutorial misconduct. In dismissing the indictment, the judge determined that the deputy attorney general inadequately charged the grand jury on self-defense, defense of others and the use of force in law enforcement. The judge also concluded that the deputy attorney general impinged upon the independence of the grand jury and improperly influenced its determination. We find no basis in the record for the judge's conclusions. We thus reverse the judgment entered and reinstate the indictment.

I.

Defendants John Hogan and James Kenna are New Jersey State Troopers. On September 7, 1999, the State Grand Jury returned an indictment charging both defendants with attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a) and separate counts of aggravated assault (N.J.S.A. 2C:12-1b(1)). The attempted murder charge against Hogan was subsequently dismissed at the State's behest. Our concern here is with the remaining charges.

The indictment had its genesis in the events of April 23, 1998. At 9:00 p.m., defendants were assigned to patrol a stretch of the New Jersey Turnpike. Hogan, who had been a trooper since 1993, drove the marked State Police vehicle, and Kenna, who had been a trooper since 1994, was in the front passenger seat. Both officers were in uniform. The night was dark and a light rain was falling.

According to defendants' statements, while traveling south, the troopers encountered a light-colored minivan driving at a high rate of speed in the center lane. After briefly following the van, the officers activated the police car's overhead lights in order to effectuate a traffic stop. The van suddenly slowed and then eased its way to the shoulder of the road. Illuminated by the spotlight on the troopers' car, both defendants observed the occupants of the van moving about, thus putting defendants in a heightened state of readiness. Hogan in particular was concerned because he saw two people reaching toward the lower portion of the van and behind the seat.

The troopers stopped their vehicle approximately ten feet behind the van. Kenna leapt from the car, drew his firearm and ran to the front passenger side of the van. While shining his flashlight in the passenger side window, Kenna ordered the occupants of the van to put their hands up. According to Kenna, the front passenger, Danny Reyes, was bent over and appeared to be reaching toward the center rear floor area. Kenna also noticed the driver, Keshon Lamont Moore, peering down the driver's side of the van, and the middle and rear seat passengers, Leroy Germaine Grant and Rayshawn Brown respectively, moving about the van. Kenna claimed that he repeated his order for everybody to put their hands up, but none of the occupants complied. Kenna then struck the passenger side window several times with his flashlight in order to break it and obtain a better view.

While Kenna was occupied by these events, Hogan exited the police vehicle with his flashlight in his right hand. As he positioned himself between the rear of the van and the front of the police car, Hogan noticed Moore looking at him in the rearview mirror. Moore had his left hand on the steering wheel and his right hand on the gear shift. Hogan claimed that he observed Moore's right arm move, and heard the wheels of the van spinning wildly. The van rapidly accelerated toward him. Hogan asserted that he dove headfirst to his left, but was struck by the van in the lower right leg area. Hogan's torso was in the right southbound lane of traffic.

From his vantage point on the passenger side of the van, Kenna could not see Hogan, but he nevertheless assumed that his partner was in danger. Upon hearing the van's wheels spinning, Kenna fired his weapon at the driver through the passenger side window. Although Hogan asserted that he remained silent while these events were unfolding, Kenna claimed that he heard his partner screaming from the rear of the van and assumed that he had been, or was about to be, run over. Kenna stated that his first shot pierced the passenger side window, leaving a spider- webbed crack that obstructed his view of the inside of the van. At this point, the van rammed the front of the police car. Kenna claimed that he repeatedly fired his weapon in order to save Hogan's life and to prevent the van from moving into a lane of traffic. Kenna could not recall how many times he fired his handgun.

The van then accelerated forward. Kenna was able to clear the shards of the broken glass from the passenger side window. The front passenger, Reyes, was reaching down into the rear center area, and the driver, Moore, had partially removed himself from the driver's side. When Reyes turned toward Kenna, the officer fired another shot. According to Kenna, Reyes then moved to the driver's seat and put the van in reverse. Kenna fired another shot at Reyes, while Moore jumped into the rear seat. The van started backing toward Hogan and the front of the police car.

Hogan was lying in the roadway when the van came to a complete stop. According to Hogan, while attempting to crawl backward, he found himself in the right lane of traffic. The van appeared to accelerate in reverse again, coming directly at him. As Hogan crawled backwards in an attempt to avoid being hit by the van, he drew his service weapon and fired at the driver of the vehicle. Hogan continued to fire his weapon until the van narrowly missed him. In his statement, Hogan asserted that he was "scared to death" that he would be killed.

The van again collided with the police car, which had been left in neutral, and was pushed backward approximately forty feet. Kenna positioned himself adjacent to the passenger side of the police car, and reloaded his weapon. Hogan was directly in front of him in the vicinity of the left front corner of the police car. After colliding with the police car, the van continued in reverse, veering perpendicularly into the roadway. Ultimately, the van was struck by a passing car, causing it to roll down an embankment and crash into several trees. Before the van came to rest, as it was passing the troopers, Kenna heard one of the occupants scream, "please don't shoot me, I don't want to die." Although Kenna did not recall firing any shots as the van rolled by on its way to the embankment, Eric Jusino, the driver of the car that had collided with the van, remembered hearing a gunshot. We digress to note that Jusino was clearly mistaken in his recollection. Following the return of the indictment, newly discovered evidence disclosed that neither officer had been in a position to fire a shot at the van as it rolled toward the embankment. In any event, Jusino testified before the grand jury that he heard one of the officers exclaim that the van had tried to run him over. Heather Hendrickson, the passenger in Jusino's car, heard the officers say that they "had" to shoot.

After the van had come to a stop, Kenna ordered all of the occupants to put their hands up. Hogan overheard one of the occupants apologizing for almost running over the troopers. Kenna handcuffed the occupants and called for assistance. No weapons or drugs were found in the van.

The testimony of the occupants of the van partially converged with the troopers' written statements, but markedly differed with respect to several key points. Moreover, the occupants' separate versions of this incident were not wholly congruent.

As we noted, Keshon Lamont Moore was the driver of the van. He and his passengers were on their way to North Carolina Central University in an attempt to obtain basketball scholarships. The mother of Moore's girlfriend had rented the van to enable Moore and his friends to reach their destination in Durham, North Carolina. Moore's driver's license had been revoked for failure to pay several parking tickets.

The van entered the New Jersey Turnpike at 9:45 p.m. Moore claimed that he was driving at fifty-five to sixty miles per hour, and the van was on cruise control. Moore first noticed defendants' police car approximately fifteen minutes later. It was positioned in the middle lane slightly in front of the van. Moore switched into the left lane and passed the police car. As he eased the van into the center lane, the police car pulled to the left and passed it. The police car then slowed until it was directly alongside of the van. The police car then allowed the van to pass it, and then followed the vehicle for a short distance before activating its overhead lights. Because there was traffic in the right lane, Moore was unable immediately to pull the van onto the shoulder. Once the traffic cleared, Moore gradually veered to the right and stopped the vehicle along the side of the roadway. Moore was unable to detect what was happening toward the rear of the van because the vicinity was heavily illuminated by the troopers' spotlight. Moore acknowledged that he was nervous because he was driving with a suspended license.

Moore testified that he tried to put the gearshift in park, but it apparently slipped into reverse. When Moore took his foot off the brake, the van rolled backward and hit the troopers' car. Moore then saw Kenna by the passenger side window. In an agitated state, Kenna was "shouting" and "banging" on the window. Because the windows were closed and music was playing from the radio, Moore could not hear what Kenna was saying.

Upon seeing the officer draw his firearm, Moore attempted to extricate himself from the driver's seat. Moore managed to position his torso behind the passenger seat in a diagonal direction, but the lower part of his body remained partially in the front seat. Moore noticed that Kenna's gun was trained on him. Moore then assumed a fetal position, curling his body behind the front bucket seats. Just as Moore lowered his head, he saw the front passenger side window break apart. Moore could not recall hearing the initial shot, but he remembered covering his head as he felt the van rolling backward.

Moore remembered hearing approximately five shots. He testified that he never tried to run over Hogan. Moore surmised that his foot had depressed the accelerator pedal, when he jumped into the back of the van. Moore recalled that the van collided with the police car and ultimately rolled down the embankment before it crashed into the trees and came to rest. He did not recall that the van was struck by Jusino's vehicle. Moore was not injured during the incident, but he heard his three friends crying in pain from the gunshot wounds they suffered. Moore felt that he was to blame, because he did not maneuver the gearshift into the park position and because he jumped out of the driver's seat to avoid being shot.

Danny Reyes was in the passenger seat. He first noticed the police car when it was directly in front of the van. As he watched, the police car moved to the left lane and then slowed until it was parallel to the van. Reyes looked at the van's speedometer which registered fifty-five miles per hour. He then noticed the police vehicle several car-lengths behind the van. Although the police car's overhead lights had been activated, Reyes did not believe that the signal to stop was directed at the van. However, after allowing traffic in the right lane to clear, Moore maneuvered the van onto the shoulder and stopped the vehicle.

According to Reyes, the four occupants remained in their seats awaiting the police officer. He then felt a "hard bump," and turned to the rear to determine what had happened. Reyes claimed that he heard a gunshot and the sound of the passenger side window breaking apart. As particles of glass rained in on him, Reyes was able to see a trooper standing approximately three feet away from the front passenger side of the van. Reyes claimed that he put his hands "straight up," saw the trooper looking directly at him, and assumed that he was no longer in danger. Reyes asserted that the trooper, Kenna, continued to fire his weapon, one shot piercing his arm. At that point, Reyes realized that the van was moving backward onto the roadway. Because he had been shot, Reyes was unsuccessful in attempting to push the gearshift into neutral. But Reyes was able to clutch the steering wheel and pull part of his body onto the driver's seat. The van then reversed direction and headed forward. Reyes saw a trooper, presumably Kenna, point a gun in his direction as the van proceeded down the embankment. Reyes claimed that he was shot again, this time in the back, just before the van landed in a ditch.

Reyes sustained five gunshot wounds. Two bullets entered Reyes' right forearm, fracturing two bones and tearing a blood vessel. Another bullet had pierced Reyes' upper thigh, leaving both entrance and exit wounds. There was also a bullet hole through Reyes' left arm, which lined up with the piercing wound through the left forearm. Another bullet had grazed Reyes' right upper chest or front shoulder. A fifth bullet had pierced the back seat of the van and had penetrated Reyes' back.

Rayshawn Brown was in the middle seat of the van. He was asleep on the far left side of the two-person bench seat, with his head propped against the window. Brown recounted that he was awakened by a gunshot, the bullet shattering the front passenger side window. Brown heard someone shout, "put your hands up," followed by a rapid series of gunshots. According to Brown, Moore asked Reyes to drive, and then jumped from the driver's seat to the floor. Pandemonium reigned. Brown felt the van moving slowly in reverse, ultimately striking some object. The van then reversed direction, slowly rolling down a hill, where it finally came to a stop. Brown testified that he opened the door to the van and was shot in the back, apparently as he was attempting to exit from the vehicle. The bullet tunneled through Brown's chest and entered his elbow.

Leroy Germaine Grant sat in the rear seat. He, too, had fallen asleep. Grant was awakened by flashing lights emanating from the troopers' vehicle. Grant remained in a semi-prone position. He suddenly felt a "nudge" from behind him. Then, gunshots rang out. Shards of glass showered the occupants of the van. Upon attempting to stand, Grant noticed that he could not bend his leg, which had been penetrated by a bullet. Grant tried to crouch on the floor, but the middle seat's reclining position prevented him from taking this evasive action. He was then struck by two more bullets. Grant observed Reyes with his hands raised, shouting, "don't shoot." Grant then felt a hard impact from the rear of the van, propelling it forward into a tree.

William Kenny, Jr. witnessed these events from a nearby overpass. He testified that he observed a van backing up and then heard gunfire. Kenny asserted that he saw someone on the driver's side of the van "dive for cover." According to Kenny, the van was traveling in a backward direction at a speed similar to that of a vehicle attempting to back out of a parking space. The van was rolling slowly enough to permit a pedestrian to escape from its path. Kenny asserted that he heard two sets of multiple gunshots. He claimed that he heard a solitary gunshot after the van proceeded off the side of the Turnpike toward the woods.

A mechanical examination of the van and troop car was performed by Lt. Frank Nucera, a police officer and forensic mechanic. Nucera concluded that the troop car had been left in neutral by Hogan when he stopped the vehicle behind the van. The troop car had a very slight compression of the shock pistons attached to the front bumper. The air bags were in working condition and had not been deployed. The front bumper and cover cowling were essentially undamaged. Based upon these circumstances, Nucera concluded that the van had impacted with the front of the troop car at a slow speed. This impact was consistent with the van being placed in reverse and moving at idle speed to the point of impact. Nucera testified that, given the design of the van, it would have been extremely difficult, if not impossible, for it to have accelerated to the point of spinning its wheels, as claimed by Hogan and Kenna in their sworn statements.

Inspection of the van's front tires did not reveal any evidence that they had skidded on the pavement. Nor did the tires disclose any indication of "heavy braking." The only indication of any wear was on the right rear tire, which revealed scuffing and grain marks from loose gravel.

Nucera characterized the van's gearshift pattern as unique. Nucera testified that the van had a "detent" mechanism that did not permit movement from one gear to the other without disengaging the gearshift. The witness testified that at times it was difficult to place the gearshift in park. The shift linkage was otherwise very sensitive and easy to move. Nucera recounted his experience as a police officer that drivers stopped for a traffic infraction often had difficulty placing their cars in park. This same sentiment was expressed by Kieran May, a State Trooper, who asserted that many drivers mistakenly put their cars into forward or reverse gear upon being stopped. Nucera and May attributed this problem to nervousness and inattentiveness.

Dr. Steven Batterman, a forensic engineer, testified with respect to the impact between the van and troop car. Like Nucera, Batterman found that the troop car had suffered only minimal damage. He estimated that the van's speed upon impact was four miles per hour. Batterman noted that the van would approach that speed "at idle" without any acceleration, particularly in light of the downward slope of the Turnpike at the site of the shooting incident. Batterman agreed with Nucera that the design of the van precluded it from spinning its wheels as described by defendants. This point was corroborated by Detective-Sergeant John Repsha of the State Police, who performed ...


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