February 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAVON FREEMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-09-1268-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2007
Before Judges Holston, Jr. and Grall.
Defendant, Ravon Freeman, appeals the Law Division's December 2, 2005 judgment of conviction for second-degree eluding, contrary to N.J.S.A. 2C:29-2b. We affirm.
On September 13, 2004, defendant was charged in Passaic County Indictment No. 04-09-1268-1 with count one (receiving stolen property), in violation of N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b (2) (b); count two (eluding), in violation of N.J.S.A. 2C:29-2b; and count three (resisting arrest) in violation of N.J.S.A. 2C:29-2a(2). A jury trial was conducted from April 18 to 21, 2005. Defendant was found guilty on counts one and three but the jury could not reach a verdict on count two, and a mistrial was declared.
The retrial on count two was conducted before a jury from September 7 to September 13, 2005, following which the jury found defendant guilty. Defendant was sentenced on December 2, 2005, to a term of imprisonment of nine and one-half years concurrent to terms of imprisonment previously imposed on counts one and three. Defendant appeals his conviction and sentence.
On the evening of April 5, 2004, Officer Henderson (Henderson), a Passaic police officer in uniform on patrol in a marked patrol car, observed a 1998 Honda Accord with a Virginia license plate stopped in the left hand lane at a stop sign at the intersection of Pennington Avenue and Gregory Street. Motorists were unable to make a left hand turn due to the stopped car and began driving around the car. Henderson pulled behind the car "to check on the driver" and to make sure he was "healthy and okay."
Henderson noticed three people in the car. Defendant, the driver, was slumped over the wheel. There was a male passenger in the front (who was never identified) and a female passenger in the rear, identified as Kanisha Wilson. Henderson approached the vehicle and asked the driver if everything was alright. Defendant "turned, look startled and nervous and said he was changing his CD." Henderson asked for his license, registration and proof of insurance. Defendant produced two Virginia transfer cards and said he did not have his license.
Henderson asked defendant to turn the vehicle off, but instead, defendant "started playing with the gear shift, put it in first gear, screeched his tires and turned the corner." While he was fidgeting with the stick shift, Henderson took a step back for his safety and told defendant, "[d]on't do it." Henderson ran back to his car, turned on his overhead lights and sirens and gave chase. Upon activating the patrol car's lights, the video camera, mounted on the front windshield, was automatically activated, the tape from which the jury was able to view at trial.
Henderson pursued the car defendant was driving. Defendant turned left onto Gregory Avenue, and ran a red light as he made a right turn onto Main Avenue. He then drove on the wrong side of Main Avenue, ran another red light at Paulson Avenue, and nearly crashed as he "almost went head on with a vehicle." Defendant pulled into the correct lane, and came up to Lafayette Avenue where he became blocked by traffic and came to a stop. Defendant then exited the car, and fled on foot. During the pursuit, Henderson had called for a license plate lookup. The dispatcher informed Henderson, just as defendant came to a stop, that the car was stolen.
Henderson chased defendant through trees and fences, and only caught up to defendant after he attempted to board a bus. Defendant was arrested. Defendant gave his address as 353 Oak Street, Passaic.
The Honda belonged to Tanisha Porter (Porter), who at the time of the trial and at the time of this incident was living in France. When Porter departed for France, she left her car in the custody and control of her stepfather, David Henry (Henry), who resides at 353 Oak Street, Passaic. Two regular sets of keys were kept at Henry's home. In addition, a valet key was kept in the basement.
During March 2004, defendant, who was Porter's cousin, lived in the basement of Henry's house. Defendant did not have a key to the house while he lived with Henry. In late March, defendant left the house and about a week later, the car and valet key were missing. Henry never gave defendant permission to use the car. On April 3, 2004, after speaking with his stepdaughter, Henry reported the car stolen to the police, as a result of the car being missing. When Henry picked up the car from the police, he learned the car had been operated with a valet key.
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY UNDER THE GUISE OF N.J.R.E. 404(b).
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE.
THE TRIAL COURT ERRED IN RULING THAT ALL OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant contends that the court erred by allowing evidence to be presented regarding the reporting of the car as stolen. During a pretrial hearing before jury selection, defendant's counsel moved to strike any evidence of the Honda Accord being stolen, after the prosecutor indicated that he intended to present evidence that the car had been reported stolen to demonstrate defendant's motive to elude the police. The prosecutor stated that such testimony would tend to show why defendant would suddenly drive away from the scene when Henderson was only checking his credentials. Defendant contended that the testimony was inadmissible hearsay and argued that any probative value of such evidence was outweighed by its prejudice to defendant.
Under N.J.R.E. 404(b): "[E]vidence of other crimes, wrongs, or [bad] acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive . . . when such matters are relevant to a material issue in dispute." Thus, the evidence of motive was admitted for a permissible purpose. See State v. Covell, 157 N.J. 554, 565 (1999) (where the Supreme Court noted courts generally admit a wider range of evidence as relevant to specific motive or intent of the accused, when the issue is material then they do on other issues).
In State v. Cofield, 127 N.J. 328, 338 (1992), the Court set forth a four pronged test that must be satisfied prior to admission of evidence of other bad acts against a criminal defendant. Prior bad acts evidence is admissible under N.J.R.E. 404(b), provided that: (1) it is relevant to a material issue in dispute; (2) it is similar in kind and reasonably close in time to the charged offense; (3) the evidence of the prior bad act is clear and convincing; and (4) its probative value is not outweighed by prejudice to the defendant. Ibid. The second prong of this test is not applicable when the evidence is relevant to motive. State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998), aff'd, o.b., 162 N.J. 27 (1999).
The court reviewed its notes from the previous trial, including the testimony of Henry who indicated he had custody and control of his stepdaughter's car, had not given the defendant permission to use the vehicle, and when he found the car missing, his wife talked to her daughter and then he spoke to her, after which he reported the car stolen on April 3, 2004. The court was satisfied the testimony was extremely probative because it tended to explain to the jury why the defendant acted in such an unusual and unexpected fashion. Accordingly, the judge found its probative value outweighed any prejudicial impact, and the court deemed the testimony admissible.
Defendant maintains the trial court erred in so ruling. Defendant contends that while the testimony might arguably have been relevant to the issue of motive by tending to explain why the defendant might have attempted to elude the police officer, defendant's theft of the Honda Accord was not established by clear and convincing evidence.
Generally, evidence tending "to prove or disprove any fact of consequence to the determination of the action" is relevant and admissible unless otherwise provided by the Rules of Evidence or law. N.J.R.E. 401, 402. However, such evidence may be admissible "when relevant to prove a fact genuinely in dispute" or to establish motive. State v. Long, 173 N.J. 138, 162 (2002).
"Evidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); see also Long, supra, 173 N.J. at 162 (citing cases where "highly prejudicial evidence" was admitted under the prejudice prong of Cofield).
The admissibility of such evidence is left to the sound discretion of the trial judge, whose decisions are entitled to deference and is to be reviewed under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). The trial court's decision will not be reversed on appeal absent a clear error of judgment so wide of the mark as to result in "manifest injustice." Cofield, supra, at 338.
Defendant asserts that under Cofield's "clear and convincing" standard, Henry's testimony was insufficient to establish that the Honda Accord had been stolen, because Henry did not own the car. Defendant claims that the State could not have satisfied Cofield without calling Porter, the registered owner, to testify that she did not give defendant permission to take the car. We disagree.
State v. Jiminez, 257 N.J. Super. 567, 573 (App. Div. 1992) is instructive. In denying a motion for a judgment of acquittal on the receiving stolen property charge against Jimenez, we stated:
The State established that the vehicle was owned by Carmen Sanchez, who had given exclusive permission to her boyfriend, Anibal Figueroa, to use the vehicle while she was in jail. Figueroa clearly testified he never gave anyone permission to use the car. Yet, slightly more than 24 hours after defendant witnessed Figueroa's arrest on the street, with the car parked around the corner, defendant was operating that car and trying to avoid apprehension by the police.
In this case, Henry testified that he had custody of his stepdaughter's car while she was living in France. He had the responsibility to "keep it up and make sure nothing happened to it" during his stepdaughter's extended absence. Thus, entrusted with more than mere physical possession, Henry alone was responsible for the care and safekeeping of the car. Henry had not given defendant permission to use the car. These facts were sufficient to establish by clear and convincing evidence that defendant was driving the car under circumstances that gave him a motive to flee.*fn1
We are also satisfied that the trial court properly determined that the considerable probative value of the motive evidence outweighed the minimal likelihood of prejudice:
Now I'm satisfied that the evidence about this car, the defendant's background, connection to it, is extremely probative because it explains to the jury why the defendant might have acted in such an unusual unexpected way when a police officer approaches him and so forth. That even after the police officer says to him 'don't do it,' he put the car in gear and speeds off, because he has now had a car for a day and a half that he took without permission.
So, it is something that is not in the interest of the defendant to have the jury hear but it is something that is relevant and probative and . . . the probative value exceeds the prejudicial effect of this.
Moreover, the trial judge provided a clear limiting instruction to the jury after the motive evidence had been mentioned in the opening statements:
[T]here's another area I want to talk to you about and that is evidence allowed for a limited purpose. . . . Now let me get more perfect with you as to what I'm referring to. In the opening statement the prosecutor indicated to you that they're going to present evidence to you that the car the defendant allegedly was driving had been stolen previously. You do not have a charge in front of you for theft of a motor vehicle. That is not something that you will be asked to decide. That charge is not here. So you're hearing evidence that refers to the defendant committing some wrong allegedly that he is not charged with. Ordinarily, that kind of thing is not allowed under our Rules of Evidence because evidence that a person supposedly committed a wrong on one occasion cannot be used under our Rules of Evidence to show that he is likely to have committed the crime that the jury has in front of them. It's not allowed to be used for the jury to think, well, this person did a bad act some time before so that makes him more likely to have done this bad act that he's charged with here or for the jury to think, well, [if] this person committed this bad act then he must be a bad person, that would make him likely to have committed the crime that he's charged with here that I have to decide. That is not the purpose for you're being allowed to hear evidence that the defendant stole the motor vehicle he was in. And it must not be used by you in that way at all.
However, under our Rules of Evidence, evidence of this kind is allowed when it addresses certain issues. The issue alleged here is motive, that is the State is alleging that the motive for the defendant to have eluded the police officer was that he was operating a stolen motor vehicle. So this evidence when you do hear it is allowed for that limited purpose and that limited purpose only, and that is whether or not it shows a motive for the defendant to have eluded the police officer and adds, consequently, some meaning, the reason for elusion or the attempt to evade the police officer.
If you find that the evidence, you don't accept the evidence or that it does not apply to the limited purpose for which it has been allowed, then you will disregard it.
You cannot under any circumstances use that piece of evidence in this case to show that the defendant has a propensity to commit bad acts or is likely to have committed the crime that he's charged with here by reason of this evidence of another bad act.
During the court's final instructions at the end of the case, the trial judge again reminded the jury of the limited purpose of the motive evidence. The judge stated:
There was one place in the case where I did explain to you the proposition of evidence being allowed for a limited purpose and that evidence that I'm referring to now deals with testimony alleging that the defendant . . . had committed a theft of the motor vehicle he was allegedly driving when he allegedly fled from Officer Henderson on April 4, 2004.
Ordinarily evidence, like the testimony I've just referred to, is not admissible under our Rules of Evidence. And this is so because the Rules of Evidence, specifically, provide that evidence that a person committed a wrong on one occasion is not admissible to prove a disposition to commit a crime on a different occasion. Therefore, you may not take this evidence and conclude from it that the defendant . . . is a bad person and, thus, has a disposition which shows that he is likely to have done the act with which he is charged here in the indictment or to show a general predisposition of the defendant . . . to commit bad acts. That is not the purpose of allowing this evidence and it must not be considered by you in that way.
The Rules of Evidence do, however, permit such testimony where such evidence relates to some other fact in issue. Here it is alleged to relate to motive. The evidence in the testimony regarding the defendant's alleged theft of the motor vehicle was allowed as it might bear on the issue of the defendant's motive for eluding. So you must first decide whether to accept the testimony, this testimony; and then, secondly, you must decide whether or not it bears on the limited issue that I've just referred to.
You may decide that the testimony does not bear on that issue, in that event you will disregard the testimony as not being helpful to you at all or you may consider such evidence as bearing on that issue I've just referred to. That is for you to decide. But what you must not do under the circumstances is consider such evidence as indicative of a general disposition of the defendant to commit the crime charged in the indictment, or to show a disposition to commit bad acts.
Given the clear limiting instructions as to the permissible application of the motive evidence, the jury was guided appropriately and defendant's claim of prejudice is without merit. Lastly, we are satisfied that the evidence that Porter's car was reported stolen was a proper use of motive evidence.
Defendant contends that the following excerpt of the prosecutor's summation exceeded the bounds of proper prosecutorial comment.
Now, when Officer Henderson testified, I think you look at, well, was anything that's said seem unreasonable? Something that's bizarre. Recognizing that bizarre things do happen. But being suspicious of things, that sounds bizarre. Was there anything? We know he was driving a stolen car and I think we know he stole the car. So the car was stolen. A police officer, obviously, pulled up behind him at some point because why is he fleeing? Why, when you see on the videotape the car stopped and the police car pulling up behind him, why would he think the police car was after him? And we know he thought the police car was after him because the second his car stops the driver side door opens and he takes off running.
Why did the Officer travel in that direction? Why did he stop behind the defendant's car? Why did the defendant immediately get out and start running, unless there was some prior confrontation.
Defendant claims that these statements inferentially commented upon the defendant's Fifth Amendment privilege against self-incrimination. We disagree.
Based on the facts of this case, the above cited remarks of the prosecutor did not amount to error, let alone plain error, and did not deprive defendant of a fair trial. The prosecutor's comments were made in response to defense counsel's suggestions that Henderson was untruthful and trying to conceal a bad traffic stop. Further, defense counsel suggested that the officer was careless and that the jury should view the videotape with skepticism. We are satisfied that the prosecutor's remarks were well within the bounds of reasonable inferences that could be derived from the facts and did not violate defendant's right to a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999).
Defendant contends that his record of convictions should not have been permitted by the judge to be used by the State for purposes of impeaching credibility. The defendant's record consisted of a third-degree theft, in which defendant received a three-year probationary term conditioned upon 364 days in the Passaic County Jail on April 6, 2001; third-degree possession of a controlled dangerous substance, for which defendant received a three year custodial term on September 3, 1993; third-degree distribution of a controlled dangerous substance within a school zone, for which defendant received a three year term with an 18 month parole disqualifier on September 3, 1993; and second-degree robbery for which the defendant was sentenced as a third-degree offender, for which he received a five year probationary term on September 4, 1998.
Under N.J.R.E. 609, "[f]or the purposes of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." In State v. Sands, 76 N.J. 127, 144-45 (1978), the Court stated:
[The trial judge's] discretion is a broad one . . . Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.
If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [(emphasis added).]
The Supreme Court, however, has emphasized that when impeaching the credibility of the testifying defendant, "[w]hen a defendant has multiple prior convictions, some of which are similar to the charged offense and some of which are dissimilar, the State may introduce evidence only of the date and degree of crime of all of the defendant's prior convictions, but cannot specify the nature of the offenses." State v. Brunson, 132 N.J. 377, 394 (1993).
The trial judge heard defendant's request for sanitization regarding his prior criminal offenses. The judge agreed to require the sanitization of the theft and robbery charge because of the prejudicial effect it may have on the defendant. We are satisfied that the trial judge properly exercised his discretion when he held defendant's prior conviction would be admissible for impeachment purposes if defendant testified on his own behalf.
On December 5, 2005, after the Supreme Court's decision in State v. Natale, 184 N.J. 458, 494-96 (2005), the court imposed a nine and one-half year sentence for defendant's September 13, 2005 conviction for the second-degree crime of eluding without reference to the presumptive term negated in Natale.
Defendant asserts that the sentence was excessive. Defendant claims that the sentencing court previously relied upon defendant's prior record in imposing an extended term sentence on count one, and then used the same prior record to determine the length of sentence on count two.
Appellate review of a sentence is restricted to whether the determination of the sentencing factors was appropriate, whether that determination was supported by competent evidence in the record, and whether the sentence is so clearly unreasonable that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 363 (1984).
Defendant argues that once a court imposes an extended term sentence on a given offense, relying upon aggravating factors that arise from a defendant's prior record, the court cannot then rely upon those same factors in imposing sentence on a different count of the indictment. Defendant relies on State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005) to support this argument.
In Vasquez, the sentencing judge erroneously "double counted" a single prior conviction. The judge did so by using the prior conviction to justify the imposition of an extended term sentence, and then used it again to decide the length of that extended term. Id. at 267.
Contrary to defendant's claim, Vasquez cannot be read so broadly as to bar a court from relying on a defendant's prior record to impose sentence on different counts of an indictment. Here, the trial court's reliance on aggravating factors (3), (6), and (9) of N.J.S.A. 2C:44-1 was based on sufficient, credible evidence in the record. We are satisfied that the trial court properly relied on those particular aggravating factors in imposing an ordinary term on count two, and an extended term on count one.
Further, unlike Vasquez, the defendant's four prior convictions exceeded the minimum two convictions, required as a prerequisite for extended term eligibility under the persistent offender statute, N.J.S.A. 2C:44-3(a). Thus, the court was free to weigh defendant's two additional prior convictions without "double counting." Additionally, a sentencing court may consider not only the convictions themselves, but also defendant's response to probation and prior attempts at rehabilitation. Here, the sentencing judge observed that defendant violated probation and parole on his 1998 robbery conviction in 2000 and in 2001, respectively. Thus, there was sufficient, credible evidence in the record to support the court's reliance on aggravating factors (3), (6), and (9).
Defendant also alleges that he has led a law abiding life "over the ensuing six years" since his December 1999 theft conviction, and that the court should have found mitigating factor (7). However, defendant did not raise this argument at the time of sentence. We note, however, that on February 28, 2000, defendant's probation was revoked as a result of a probation violation, and defendant received a five-year prison sentence. Defendant was paroled in January 2001, but his parole was revoked on July 30, 2001. On August 14, 2002, defendant was convicted of possession of drug paraphernalia in municipal court. Thus, mitigating factor (7) is not supported by the record.
The range for a second-degree crime is between five and ten years. N.J.S.A. 2C:43-6(2). The court imposed a higher sentence as it was "clearly convinced the aggravating factors substantially outweigh the non-existent mitigating factors." We are satisfied that the trial court's sentencing decision was fairly grounded in competent, reasonably credible evidence and that the court exercised proper legal principles in arriving at its sentencing decision. The sentence does not shock the judicial conscience. Roth, supra, 95 N.J. at 363-64.