October 5, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FORLANG SPENCER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-12-1636.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Lintner and Sabatino.
On December 8, 2004, following a trial, a jury convicted Forlang Spencer of second-degree eluding, N.J.S.A. 2C:29-2d (Count One) and acquitted him of weapons offenses charged in Counts Two, Three, and Four.*fn1 The judge denied defendant's motion for judgment notwithstanding the verdict and the State's motion to impose an extended term. She imposed a seven-year term. Defendant appeals and we affirm.
We recite the relevant facts. While on patrol in a residential area in Perth Amboy on November 3, 2003, at approximately 5:15 p.m., uniformed Police Officer Crescencio Fuentes came upon a Ford Explorer parked on the side of the road. Fuentes pulled up behind the Explorer, exited his patrol unit, and approached the Explorer. As he approached, he saw an individual, later identified as defendant, in the driver's seat with the window down. Tamika Green occupied the front passenger seat. Fuentes ordered defendant to stop, however, defendant spun the Explorer tires and pulled away from the curb. Fuentes reentered his vehicle, activated the overhead lights and siren, and pursued the Explorer. Defendant proceeded westbound on Hamilton Avenue, made a quick right turn to North Westmont, and continued to the intersection with Florida Grove Road where he turned southbound on Florida Grove Road without stopping at the stop sign.
Defendant drove erratically, weaving in and out of oncoming traffic on both lanes of Florida Grove Road, reaching speeds as high as sixty miles per hour. Fuentes was able to determine the Explorer's speed by looking at his own speedometer during the pursuit.
As the Explorer continued southbound on Florida Grove Road, it approached the major intersection at Pfeiffer Boulevard.*fn2
According to Fuentes, at the time of the pursuit, approximately 5:15 p.m., the area regularly experiences a high volume of traffic flow with people headed home from work. As defendant reached the intersection, the traffic light was red in his direction and there were other vehicles at the intersection. However, defendant ignored the red light, entering the intersection on the wrong side of the road with just a tap of his breaks and without stopping. When asked if he followed defendant through the intersection, Fuentes responded:
I did not follow him into the oncoming lane. I was concerned of safety of all the other vehicles and the persons at that moment. I slowed down in order to proceed to the intersection which was still red.
Fuentes briefly lost sight of the Explorer as it went around a bend in the road. Testifying for the State, Green stated that she threw a gun out the window once the Explorer was out of the pursuing police car's view. Barbara Wittke, who lived on Florida Grove Road, testified that she saw an object thrown from a green Explorer that was being pursued by several police cars at approximately 5:20 p.m.
After regaining sight of the vehicle, Fuentes pursued the Explorer while it continued southbound on Florida Grove Road for approximately one-half mile before coming to a halt north of New Brunswick Avenue. Green stated that it was her and defendant's "intention to get rid of [the gun]" and defendant stopped the vehicle "[r]ight after [she] threw the gun out." Once stopped, defendant and Green were ordered out of the vehicle and arrested.
The entire pursuit lasted between one-and-a-half to two minutes and covered 1.6 miles in a residential area. The speed limit throughout was twenty-five miles per hour. Fuentes issued summonses to defendant for "disregard of a stop sign, disregard of a light, failure to keep right, and reckless [driving]." He did not issue a summons for speeding because he did not have radar at the time of the incident, but observed the Explorer traveling at speeds of thirty, forty, and sixty miles per hour.
Wittke saw a man who lived two houses down on Florida Grove Road pick up the item thrown from the Explorer and carry it into his driveway. She then heard a bang and called 911. After conferring with Wittke, Fuentes and Sergeant Steven Verdi proceeded to the location where Verdi recovered a semi-automatic handgun with approximately thirty rounds of ammunition.
On appeal, defendant raises the following points:
THE COURT'S CHARGE ON SECOND DEGREE ELUDING DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL REQUIRING REVERSAL OF HIS CONVICTION. U.S. CONST.
AMENDS. V, VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 9, 10. THE CHARGE RELIEVED THE STATE OF ITS BURDEN OF PROOF REGARDING THE MATERIAL ELEMENT OF KNOWINGLY CREATING A RISK OF DEATH OR INJURY AND FAILED TO ADEQUATELY EXPLAIN HOW TO PROCEED WITH THEIR DELIBERATIONS SHOULD THEY REJECT THE PERMISSIVE INFERENCE REGARDING CREATING A RISK OF DEATH OR INJURY. [Not Raised Below.]
THE PROSECUTOR'S COMMENTS DURING SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL. [Partially Raised Below.]
THE TRIAL COURT COMMITTED HARMFUL ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL WHEN IT FAILED TO RULE UPON THE ADMISSIBILITY OF HIS PRIOR CONVICTIONS AND TERMINATED THE SANDS HEARING ONCE THE DEFENDANT ADVISED THE COURT THAT HE DID NOT INTEND TO TESTIFY.
In Point I, defendant asserts that the jury charge on eluding given by the judge, which tracked the model jury charge, "reduced the State's burden of proof" by failing to instruct the jury on the level of culpability required to prove that defendant created a risk of injury to other persons, thus elevating the offense to a second-degree crime. While this case was pending appeal, the Supreme Court decided State v. Thomas, 187 N.J. 119 (2006), holding that "there is no mens rea element to the portion of the eluding statute . . . that enhances a defendant's penal exposure from a third- to a second-degree offense . . . ." Id. at 137. Defendant has now acknowledged that the holding in Thomas is dispositive and withdraws his contention.
Defendant next contends, for the first time on appeal, that the trial judge's instructions were erroneous because she did not properly explain to the jury what to do if it chose to reject the permissive inference that risk of death or injury to any person existed if the defendant's conduct in eluding involved a violation of motor vehicle laws. Because defendant failed to object, we will only reverse if there was plain error, i.e., error clearly capable of producing an unjust result. R. 2:10-2; see State v. Afanador, 151 N.J. 41, 54 (1997).
To elevate eluding to a second-degree offense, the State must prove a motor vehicle was operated during flight from the police in such a manner as to create a risk of death or any kind of injury to any person. N.J.S.A. 2C:29-2b. That statute also provides that "there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of [motor vehicle laws]." The Model Jury Charge instructs in pertinent part:
You may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this State . . . . It is alleged that the defendant's conduct involved [a] violation[s] of the motor vehicle laws . . . . Specifically, it is alleged that the defendant [list motor vehicle violations . . . alleged, and list their elements, taking care to list only those violations that allegedly occurred after the signal to stop]. Whether (he/she) is guilty or not guilty of that [those] offense[s] will be determined by an appropriate court. In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle . . . offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] . . . in deciding whether (he/she) created a risk of death or injury.
At the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish.
[Model Jury Charge (Criminal) §2C:29-2b (2004).]
Here, the judge's instructions again mirrored the Model Jury Charge. She set forth the alleged motor vehicle violations and explained elements of each offense. Contrary to defendant's contention, the instructions regarding the statutory permissive inference were properly given. See State v. Wallace, 158 N.J. 552, 559 (1999). Moreover, the judge correctly advised the jury that it was within its exclusive power to determine the facts and circumstances and to accept or reject the inference.
Defendant argues that the lack of an explanation in the Model Jury Charge of how the jury was to proceed if it rejected the inference under the circumstances of this case was manifestly unjust because the State failed to present any evidence that defendant actually created a risk of injury or death other than through a violation of the motor vehicle laws. Defendant's argument lacks merit. Responding to essentially the same argument raised by the defendant in Wallace, the Court noted:
Finally, we disagree with defendant and the conclusion . . . if the statutory permissible inference of N.J.S.A. 2C:29-2b is unavailable, the prosecutor must prove that some member of the public was in the vicinity of the chase caused by the eluding vehicle. We are satisfied that the Legislature intended to protect all persons by the eluding statute, including the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route. In our view, the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others. [Id. at 560 (emphasis added).]
We conclude that the instructions, as given, adequately explained the applicable law to the jury regarding the use of the permissible inference and how to consider it in relation to the evidence presented. We see no reason to intercede.
Defendant next challenges several comments made by the prosecutor during closing argument. The prosecutor argued:
Going through a stop sign I think the testimony was he might have slowed down a little bit going through the stop sign. He sure as heck didn't stop. Driving on the wrong side of the road. Going through a red light on the opposite side of the lane of travel. Speeding at speeds up to 60 miles an hour, possibly more, in a residential neighborhood during rush hour. There's no doubt that Forlang Spencer and all of us here are very lucky that no one was killed on November 3rd, 2003. (emphasis added).
Defendant asserts that the above comment, which was not objected to, was not a fair inference from the evidence and was designed to impassion the jury, arouse hatred and anger against defendant, and divert the jury from a fair consideration of the evidence. We disagree.
As we previously pointed out, second-degree eluding is designed to punish not only those who elude the police and actually cause injury or death, but also "those whose unlawful conduct creates a possibility of injury to others." Ibid. The prosecutor's comments were appropriate and well supported by evidence in the record that established that defendant drove erratically, on the wrong side of the road, reached speeds of up to sixty miles per hour in a twenty-five-mile-per-hour residential neighborhood, and went through a stop sign and a red light at a high traffic intersection during rush hour.
Defendant also cites several comments made by the prosecutor concerning the testimony given by Green. Green's testimony was elicited primarily to establish the weapons offenses against defendant. In that regard, the prosecutor stated:
Why was [defendant] running? He was running because he had a TEC 9, this TEC 9 in his truck, and he knew it and he didn't want to get caught with it.
[Green] tells you that she asked defendant when they lost sight briefly of this police car do you want me to get rid of the gun. Why did she do that? She knew the reason. They were running because of the gun.
Defendant argues that the prosecutor's remarks went beyond the evidence because Green never gave express testimony as to the reason why defendant left the scene and attempted to get away from the police.
Prosecutors are afforded considerable leeway in summation as long as their comments are reasonably restricted to the scope of the evidence presented. State v. Frost, 158 N.J. 76, 82 (1999). Their primary duty "'is not to obtain convictions, but to see that justice is done.'" Id. at 83 (quoting State v. Ramseur, 106 N.J. 123, 320 (1987)). Prosecutors are duty-bound to confine their comments to facts revealed during the trial and the reasonable inferences that may be properly drawn therefrom. State v. Marks, 201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). The failure to object may indicate that defense counsel believed the remarks were not so prejudicial at the time and also deprived the judge of an opportunity to take appropriate action. Frost, supra, 158 N.J. at 84.
We are satisfied that the prosecutor's comments focused on reasonable inferences from the evidence adduced. Moreover, defendant was acquitted of the weapons charges, the offense to which these remarks were addressed. Even if we believed that they represented misconduct, which we do not, they do not rise to the level of plain error.
On cross-examination, defendant brought out that Green had entered into a plea agreement where she pled guilty to unrelated drug charges in return for which she agreed to testify and the indictment charging the same weapons offenses was dismissed. Commenting on Green's credibility, the prosecutor pointed out:
Now we get to Tamika Green, my star witness. I don't think I ever used that term "star witness" and I don't think I would ever use that term to describe Miss Green. Let's talk about her demeanor. It was only last Thursday she came in and testified to you. Does any one of you in this jury box think Tamika Green wanted to be here last Thursday talking to you? Clearly, clearly she did not want to be here. She looked afraid. She looked nervous. She wasn't very responsive - - . (emphasis added).
Defendant's counsel objected, asserting that the prosecutor was going to ask her if she was scared while she looked at defendant. At sidebar, the judge asked the prosecutor whether he was attempting to have Green say she was scared of defendant. The prosecutor responded, "no" and the discussion at side bar ended. The prosecutor then stated:
As I said, she looked and sounded extremely reluctant to be here and talk to you. Consider this too. Regardless of the seriousness of the case, think about the dynamics. She told you that as of November of last year, 2003, this was her boyfriend.
She had had a relationship with him for some time and scared or not, nervous or not, it's got to be very difficult for you to come in court and testify against someone with whom you had a romantic relationship. Whether that relationship still stands. In the past there had to be something good between them so it's got to be hard to testify against this former boyfriend no matter how much trouble he might have gotten you into. (emphasis added).
Without further objection, the prosecutor argued:
Keep in mind despite the street clothes she was wearing when she came in and testified to you last week she was incarcerated. She told you that. She's staying at the Essex County Correctional Facility awaiting sentencing. Most importantly keep in mind she gave her statement on November the 3rd, 2003, long before there was any plea agreement on any charges. She pled guilty on October 18th of this year, 2004. In November 2003 she had no deal. She had no hook. She told those detectives the truth because she thought it would help her and in the end it did. Did she tell the police what they wanted to hear that day? I submit she did. They wanted to hear the truth and that's what she told them. She told it to them that day and she came in here last Thursday and she told you the truth even if she didn't want to.
Defendant maintains that the prosecutor's comments concerning Green looking scared implied that defendant needed to be convicted because defendant is a dangerous and bad person, depriving defendant of a fair trial. He also contends that the prosecutor's remarks concerning whether Green was telling the truth amounted to vouching for her credibility. Again, we disagree.
When considering arguments concerning credibility and whether a prosecutor's remarks deprive a defendant of a fair trial, it is important first to view the context in which the prosecutor's comments were made. During summations, defendant vigorously attacked Green's testimony as biased, in light of her plea agreement. Generally, when prosecutorial misconduct is being raised for the first time on appeal, we need only be concerned with "whether the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the accused of a fair trial. Ramseur, supra, 106 N.J. at 322.
A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.) (citing State v. Wilson, 128 N.J. 233, 241 42 (1992)), certif. denied, 144 N.J. 587 (1996).
Green's credibility was hotly contested by the defense and consequently the prosecutor's statements were made in response to the defense's position. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (upholding prosecutor's comments made in response to arguments raised by defense), certif. denied, 130 N.J. 393 (1991). The trial judge instructed the jury that it was the testimony of the witnesses that was important and the comments of counsel were not evidence. Further, the prosecutor's comment concerning Green's appearance as a reluctant witness was not meant to characterize defendant as dangerous, but instead was used to highlight how Green appeared on the witness stand.
Following the presentation of the State's case, the judge excused the jury and spoke with defendant and his counsel regarding defendant's case. The judge informed defendant of his "absolute right to testify" and that his prior convictions may be used against him if he chose to testify. The prosecutor then advised that defendant had two "relatively old" prior criminal convictions, the first in 1988 for larceny, a second in 1993 for robbery, and a violation of probation in 1994, which resulted in the imposition of a seven-year period of incarceration. The State indicated that there had not been a Sands*fn3 hearing but that it was the State's position that the court could take into consideration the period of incarceration imposed on the violation of probation in determining remoteness. When asked by the judge if he had seen the convictions, defense counsel answered, "No. I was shown them now. But defendant is not going to testify." Defendant then stated:
I know a whole lot of people make judgment on appearances. I don't want to get up and testify and have a jury looking at me like I'm something else, you know what I'm saying? I want to be judged by the evidence. I don't want to get up there and mess myself up.
The judge explained to defendant that the decision had to be his and that, although she had not determined yet whether the convictions could be used, she would examine them and give him an answer whether they could be used on cross-examination. Both defendant and his counsel then made it clear that, regardless of whether the convictions would come up on cross-examination, defendant did not want to testify. Defendant also indicated in response to the judge's offer that he did not need any extra time to think about his decision.
Defendant now claims that the failure to conduct a Sands hearing deprived him of a fair trial. The right of an accused in any criminal action not to be called as a witness and not to testify is a long-standing principle in our jurisprudence. State v. DeCola, 33 N.J. 335, 341 (1960); State v. Nagy, 27 N.J. Super. 1, 8-9 (App. Div. 1953). A defendant's decision in a criminal case of whether or not to testify rests ultimately with that defendant. State v. Bogus, 223 N.J. Super. 409, 423 (App. Div.), certif. denied, 11 N.J. 567 (1988). It is considered "an important strategic or tactical decision" that is made by defendant with the advice of counsel. Ibid. It is defense counsel's responsibility "to advise defendant on whether or not to testify and to explain the tactical advantages and disadvantages of doing so or of not doing so." Ibid.
The record establishes that defendant was made fully aware of his rights and he knowingly and intelligently exercised his right not to testify. Defendant's decision here was clearly strategic and made regardless of whether the judge decided to allow or disallow evidence of his prior convictions. The record reflects that his decision, like the decision of the defendant in Sands, was tactical and "in no way motivated by his prior record." See Sands, supra, 176 N.J. at 145. Under these circumstances, any error was invited and should be resolved against defendant. See State v. Pontery, 19 N.J. 457, 470-71 (1955); State v. Baluch, 341 N.J. Super. 141, 195 (App. Div.), certif. denied, 170 N.J. 89 (2001).
Defendant next contends that the seven-year sentenced was excessive. We are satisfied from our review of the record that, notwithstanding defendant's contention and supporting argument, the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Lastly, repackaged as a contention that the verdict was against the weight of the evidence, defendant repeats his earlier assertion that there was no proof that any person was at risk of injury to support a guilty verdict of second-degree eluding because he successfully negotiated the intersection despite his high rate of speed, the busy time of day, and the adverse traffic signal. As previously indicated, defendant's contentions are contrary to the holding in Wallace, supra, 158 N.J. at 560, and need not be further addressed in this opinion. R. 2:11-3(e)(2). Simply stated, the evidence clearly established defendant's guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).