October 22, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARIK MANIGO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-03-1068 and 03-04-1273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Lintner and Sabatino.
Following a two-day jury trial, defendant Tarik Manigo was convicted of second-degree eluding, contrary to N.J.S.A. 2C:29-2b; third-degree receipt of stolen property, contrary to N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a. Defendant now appeals those convictions and the corresponding sentences. We affirm.
The events giving rise to defendant's indictment in this case*fn1 occurred on November 12, 2002 in Irvington. Just before 10:00 a.m. that day, Irvington Police Officer Miles Brown was patrolling in the area of Stuyvesant and Madison Avenues. Officer Brown observed a gray van, driven by defendant, coming towards him in the opposite direction. As the vehicles passed each other, Officer Brown observed defendant's van strike a parked car on Madison Avenue and continue driving. Officer Brown turned his patrol car around, turned on his lights and siren, and pursued the van.
Defendant ignored Officer Brown's lights and siren and kept driving, weaving through traffic and running at least two red lights. A license plate check revealed that the van, a 2001 Mazda MPV, had been reported stolen by its owner six days earlier. According to Officer Brown, the chase lasted for about ten minutes, at speeds of around 35 m.p.h.
After weaving through several Irvington streets with Officer Brown in pursuit, defendant tried to turn right from Union Avenue onto Nye Avenue, when he swerved wide and struck two cars. The drivers of those two cars, Clive Stanford and Simard Allen, both testified at trial that they were waiting at a light on Nye Avenue when a gray van swung around the corner, skidded, and ran into them. Allen testified that the force of the van's impact propelled his car up onto the sidewalk and into a parking garage. According to Allen, the van's driver tried to take off after hitting Allen's car, but one of the van's tires was "broken" and it instead went straight into a utility pole on Nye Avenue. Allen then witnessed defendant jump out of the van, look at him, and flee up Nye Avenue towards a gas station.
Officer Brown pursued the van onto Nye Avenue and witnessed it hit one of the stopped cars and then crash into a pole. Officer Brown then got out of his patrol car and approached the van from behind. He noticed as he approached that the van was still running and in reverse gear. The van then began to back up towards the officer, who put his hands up to blunt the impact. The officer testified that his left hand went through the driver's side taillight, smashing the light and injuring his thumb, and he was knocked to the ground. At this point, defendant jumped out of the van and ran up Nye Avenue. Officer Brown got up and pursued defendant on foot.
Meanwhile, off-duty Irvington Police Officer Alfredo Aleman was working a shift at his part-time job at a bank on Union Avenue. He had left the bank around 10:00 a.m. to go to the corner store for a cup of coffee when he heard sirens nearby. Officer Aleman switched on his police radio and heard that Officer Brown was pursuing a stolen vehicle on Union Avenue. After seeing the chase pass him on Union and turn onto Nye Avenue, Officer Aleman heard a crash. He heard Officer Brown on the radio, reporting that the van's driver had fled on foot.
Officer Aleman ran to the corner of Union and Nye Avenues, where he saw Officer Brown chasing defendant up Nye Avenue. Officer Aleman checked on Stanford and Allen to make sure they were unharmed. He then got into Officer Brown's patrol car, which was running and unlocked, and headed in the direction of defendant and Officer Brown. Officer Aleman made a left on Augusta Avenue, stopped in front of an apartment building, and got out to look for defendant.
With Officer Brown chasing him on foot, defendant ran behind a gas station and down a small alley bordering an apartment building. Defendant jumped a fence into a backyard and hid from view. Officer Brown was unable to get over the fence, but he saw Officer Aleman on the other side and told him that defendant was hiding in the area. After a brief search, Officer Aleman discovered defendant hiding underneath a pile of garbage. By this time other patrol units had arrived on the scene.
According to Officer Aleman, as they tried to arrest defendant, he vehemently resisted, kicking and trying to get free. Officer Aleman testified that defendant continued to struggle until he threatened to let a police dog loose on him. At this point, the police succeeded in arresting defendant and taking him to the station.
After the incident, Officer Brown was taken to the hospital, where an x-ray revealed that he had a sprained left hand from the impact with defendant's vehicle. Officer Brown was not involved in the post-arrest processing of defendant, nor did he personally issue any motor vehicle summons to defendant. However, he testified that he conveyed the details of the chase to Irvington Police Officer Daniel Payton, who then wrote up and issued the summonses to defendant.*fn2
Officer Brown testified at trial that the summonses issued to defendant corresponded to what had happened during the chase:
Q: [C]an you tell us what [the summonses] were for and as they respond to the chase?
A: Yes. He ran a light, Madison and [Stuyvesant]. Leaving the scene of an accident, 56 Nye Avenue. Oh. Unlicensed driver, 56 Nye Avenue. Uninsured driver, 56 Nye Avenue. Unregistered vehicle, 56 Nye Avenue. Reckless, 56 Nye Avenue. Failure to observe signal, Union and Nye. Failure to observe signal, Stuyvesant.
Defendant was subsequently indicted and charged with aggravated assault of a police officer, unlawful possession of a weapon (an automobile), possession of a weapon for an unlawful purpose, receiving stolen property, eluding police, and resisting arrest. Defendant rejected a plea offer and pled not guilty to all of the charges at an October 17, 2003 status conference before the judge originally assigned to try his case. At the conclusion of that conference, the judge scheduled defendant's trial for January 12, 2004. The judge explicitly told defendant, "Mr. Manigo, if you fail to appear at that trial date, a bench warrant will be issued for your arrest, you lo[s]e your bail, and the case could go to trial even though you're not here. Do you understand that? Right?" Defendant replied, "Yes."
Nonetheless, defendant failed to appear in court on the morning of January 12, 2004, when the trial was scheduled to begin. Defense counsel requested that the judge adjourn the trial temporarily, pending efforts to locate defendant.*fn3 The judge denied that request. However, defendant's trial did not proceed that day, apparently because the judge was needed to preside over another trial.
The next morning, January 13, a different judge assumed responsibility as the trial judge in defendant's case.*fn4
Defendant again was not present. The court was not informed of defendant's whereabouts, although defense counsel ultimately conceded at a later proceeding that his client was not in jail, in a hospital, or in any situation that prevented him from attending his trial. Accordingly, the trial judge likewise refused to grant an adjournment. The court proceeded with trial in absentia, having been provided with no reason to depart from the first judge's prior decision.
Prior to jury selection, defense counsel requested that the trial judge ask the potential jurors whether they had ever had a car stolen, and also whether they had ever been involved in a car accident. The judge denied that specific request, but did agree to incorporate the concept of stolen cars into the customary question of whether any juror had ever been a crime victim. Hence, the question asked of each potential juror on this subject was, "Have you or any friends or relatives ever been the victim of a crime? A victim of a crime, by that I mean any crime whatsoever, including having your car stolen." The jury was duly empanelled, and defendant did not use all of his allotted peremptory challenges.
At trial, the State presented eyewitness testimony from Officers Brown and Aleman, as well as from the civilian witnesses, Clive Stanford and Simard Allen. Also testifying for the State were the owner of the stolen van and Officer Timothy Pentiman of the Essex County Sheriff's Department, who gave testimony regarding a photograph of defendant used at trial. The defense presented no contradictory eyewitness testimony. Its sole witness was Officer Payton, whose testimony centered on the information contained in, and allegedly omitted from, the police report of November 12, 2002, reflecting the investigation of this incident.
Following deliberations, the jury found defendant not guilty of the charges of aggravated assault and possession of a weapon for an unlawful purpose, and found him guilty on the remaining charges. Prior to sentencing, the court dismissed the unlawful possession charge, ruling that the guilty verdict on that count was inconsistent with defendant's acquittal on the charges of assault and possession of a weapon for an unlawful purpose.
Defendant was sentenced on July 16, 2004. The court sentenced defendant to four years for third-degree receiving stolen property, seven years for second-degree eluding, and eighteen months for fourth-degree resisting arrest. On the two aggravated assault charges, to which defendant had pled guilty in the separate indictment and accusation arising out of the incidents in Newark, he received four years on the third-degree charge and eighteen months on the fourth-degree charge. All sentences were designated to run concurrently.
This appeal followed. Defendant raises the following arguments:
THE TRIAL COURT IMPROPERLY PERMITTED THE JURY TO CONSIDER WHETHER IT MAY INFER FROM EVIDENCE OF A MOTOR VEHICLE OFFENSE THAT THE DEFENDANT CREATED A RISK OF DEATH OR INNURY TO ANOTHER. (Not Raised Below)
WHERE THE DEFENDANT'S VOLUNTARY ABSENCE WOULD, UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, HINDER A FAIR AND JUST HEARING THE TRIAL COURT SHOULD NOT PROCEED WITH TRYING THE DEFENDANT IN ABSENTIA.
THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT REFUSED TO VOIR DIRE POTENTIAL JURORS ABOUT A BIAS WHICH WAS FOUNDED ON THE NATURE OF THE CRIMINAL CONDUCT CHARGED IN THE INDICTMENT.
THE SENTENCING COURT IMPROPERLY SENTENCED THE DEFENDANT WHERE IT DID NOT CONCENTRATE ON THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE CRIME THAT SERVED AS THE OCCASION FOR THE SENTENCE.
We have considered each of these points, and conclude that they are without merit.
Although he failed to do so at trial, defendant challenges on appeal the court's jury instructions concerning second-degree eluding. Specifically, defendant argues that the proofs of his alleged motor vehicle offenses committed while eluding the police did not support a statutory inference that he created a risk of death or injury to another. Consequently, he alleges that it was error for the judge to instruct the jury that it could make such an inference. Defendant further alleges that since the element of risk is what enhances an eluding offense from a third-degree to a second-degree level of culpability, this was reversible error that produced an unjust result. We disagree.
Under N.J.S.A. 2C:29-2b, the third-degree offense of eluding a police officer while driving is enhanced to a second-degree offense if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, 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 chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. [N.J.S.A. 2C:29-2b].
Pursuant to this statute, there are two ways for the State to prove that defendant's conduct in eluding police created a risk of death or injury to another. First, the State can show through direct or circumstantial evidence that at least one person was put in danger of death or physical injury by defendant's conduct in eluding. State v. Wallace, 158 N.J. 552, 560 (1999) (finding that the time of day of the chase, the nature of the neighborhood, and the volume of traffic are relevant to the element of risk).
Alternatively, the jury can infer the statutory element of risk of injury or death from evidence that defendant committed motor vehicle violations while eluding police. N.J.S.A. 2C:29-2b; Wallace, supra, 158 N.J. at 558-59. In making this inference, the jury is not required to find a defendant guilty of the underlying motor vehicle violations. As long as the jury is properly instructed on the elements of the underlying violation, it is permitted to draw the inference. State v. Dixon, 346 N.J. Super. 126, 138 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002).
As our case law recognizes, not every motor vehicle violation creates an equal risk of harm to others. See State v. Dorko, 298 N.J. Super. 54, 59-60 (App. Div.), certif. denied, 150 N.J. 28 (1997). Therefore, when this aspect of the eluding statute is involved, the court must instruct the jury on the elements of the pertinent underlying motor vehicle violation, so that the jury may decide if the violation does or does not support such an inference of risk. Id. at 60.
Here, defendant acknowledges that the content of the trial judge's instruction to the jury on the second-degree eluding charge was correct "on its face." Instead, defendant argues that the evidence adduced at trial simply did not warrant giving the instruction. Specifically, defendant maintains that the State was required to produce evidence that defendant's motor vehicle violations actually put another in danger, in order for the charge to be appropriate. Defendant's arguments misread the statute and the associated case law.
As the Supreme Court explained in Wallace, supra, 158 N.J. at 559-60, a showing of actual risk is not required in order for the jury to make the permissive inference under N.J.S.A. 2C:29-2b. The law only requires that the jury be instructed on the elements of the underlying motor vehicle offense, so that it may determine if the nature of that offense supports an inference of risk. See Dorko, supra, 298 N.J. Super. at 60. Indeed, requiring the State to prove risk explicitly would negate the usefulness of the permissive inference. If the State were required, in every eluding case involving motor vehicle violations, to put forward evidence to show that defendant's conduct created an actual risk, the inference would serve no purpose.
The trial judge complied with Wallace and Dorko by explaining to the jury the elements of the motor vehicle offense of running a red light, as set forth in N.J.S.A. 39:4-81. Specifically, the judge instructed:
It is alleged that the [d]efendant's conduct involved a violation of our motor vehicle laws, specifically there was testimony that he disregarded some traffic signals, some red lights. And you know what the elements of running a red light [are] or disobeying a traffic signal. Okay? You have to be a driver of a vehicle. You have to knowingly know the light is red. And even though the light is red and you know it's red, you know - you have an obligation to stop and yield to traffic and you go through the red light. All right?
At the same time, remember you are not - you are never required or compelled to draw this inference. As I've 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.
Defendant's trial attorney did not object to this charge, which comported with the Model Charges. See Model Jury Charge (Criminal), "Eluding an Officer [Second and Third Degree]" (2004). The issuance of the charge was factually supported by the testimony of Officer Brown, who observed defendant run at least two red lights. The charge was entirely appropriate.
Defendant further maintains that the jury must have been misled in its application of the permissive inference charge because of Officer Brown's testimony concerning the motor vehicle summonses issued to defendant. In particular, defendant complains that Officer Brown testified that defendant was issued summonses for reckless or careless driving. Defendant contends, without any evidentiary support, that no such summonses were ever issued. That contention is sheer speculation. It is patent from Officer Brown's testimony that he was reading from a list of summonses, which variously included running a red light, leaving an accident scene, unlicensed driving, uninsured driving, and failures to observe signals. The list read aloud by the officer also included reckless driving. No proofs to the contrary were adduced.*fn5 We are not persuaded that the jury was misled about the summonses in any manner.
Furthermore, it is immaterial whether or not defendant was actually issued a summons for careless or reckless driving because the motor vehicle offense that formed the basis of the permissive inference charged to the jury was running a red light. See N.J.S.A. 39:4-81. Defendant does not dispute the fact that he was issued summonses for running at least two red lights. That behavior surely had the capacity to put others at risk. Defendant fails to cite any authority for the proposition that there is no danger when a driver goes through a red light, unless there is proof that another vehicle or a pedestrian is present. Such a proposition is flatly contrary to the public safety objectives underlying our motor vehicle laws.
Moreover, the permissive inference was not essential to the jury's finding that defendant was guilty of second-degree eluding. The State presented two civilian witnesses, Stanford and Allen, who gave uncontradicted testimony that each of their cars was hit by the defendant as he swerved around a corner in an attempt to elude police. The chase thus ended with defendant colliding with two occupied vehicles. Officer Brown also testified that he was knocked over and injured by defendant's van as he put it into reverse, attempting to get away. Clearly, no inference based on a motor vehicle violation was necessary for the jury to find that defendant's conduct put others at risk of bodily injury. Therefore, any possible error by the judge in giving this instruction was harmless.
In sum, we perceive no error whatsoever, let alone any plain error under R. 2:10-1, in the manner in which the eluding statute was charged. Nor is there any insufficiency of evidentiary support for defendant's conviction of that offense. Defendant's claims on this issue are therefore rejected.
Defendant next argues that the trial court's decision to proceed with trial in his absence violated his constitutional rights. He claims that, because his testimony was allegedly critical to his own defense, the prejudice to his case greatly outweighed the State's interest in proceeding with trial. Hence, he asserts that the court should have postponed trial, beyond the one-day interval that coincidentally occurred when Judge Casale became unavailable, to allow defense counsel additional time to locate him.
These contentions are unpersuasive. The court's decision to proceed with the trial in these circumstances fully comported with the pertinent standards set forth in R. 3:16(b) and in State v. Hudson, 119 N.J. 165 (1990).
To be sure, a criminal defendant has a presumptive right to be present for trial under the Sixth Amendment and Due Process Clauses of the United States Constitution, as well as under the New Jersey Constitution. See Hudson, supra, 119 N.J. at 171. However, that right to attend is waivable. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Hudson, supra, 119 N.J. at 173-74. Criminal defendants do not have the right to halt or delay their trials indefinitely, to their potential advantage, by refusing to show up in court. See e.g., Diaz, supra, 223 U.S. at 454-60, 32 S.Ct. at 253-56, 56 L.Ed. at 506; Hudson, supra, 119 N.J. at 183-84.
The standards for a criminal defendant to waive the right to be present at trial, whether through statements or by inference from his conduct, are expressed in R. 3:16(b). The Rule provides:
A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date . . . .
We are satisfied that the requirements of the Rule were met here.
Upon making a reasonable inquiry into or about defendant's whereabouts, a trial court has discretion to either postpone trial, or to declare a voluntary waiver by the defendant and proceed in absentia. See Hudson, supra, 119 N.J. at 183-184. An appellate court reviews such determinations only for an abuse of that discretion. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).
Defendant does not deny that, pursuant to R. 3:16(b) and Hudson, he received adequate notice of the date of his upcoming trial. Defendant was specifically advised by the first judge at the October 17, 2003 status conference that the date of his trial was January 12, 2004. He orally acknowledged to the first judge that he understood the need to be present and that the trial could proceed in his absence. Even so, defendant did not come to court on January 12. Nor was he present on January 13 for jury selection, January 14 for trial, or January 16 for the jury charge and verdict.
Furthermore, defendant does not argue that prior to denying defense counsel's request on January 12 for an adjournment, the first judge failed to inquire as to defendant's whereabouts. The trial judge, who took over the case the following day, stood by the first judge's decision to proceed. The record does not reflect that the trial judge had been presented with any new information or justification concerning defendant's continued absence.
During the course of the trial, defense counsel requested that the jury be instructed on defendant's right to be absent. The judge gave that instruction. We presume that the jury abided by that instruction and did not hold defendant's absence against him. State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999).
Six months later, when defense counsel moved for a new trial prior to sentencing, the court again inquired as to why defendant did not attend his trial:
THE COURT: Where was [defendant] that week? [DEFENSE COUNSEL]: Umm, Judge, frankly, I'm not a hundred percent sure. I'm not -
THE COURT: He wasn't in the hospital, he wasn't in jail somewhere, he wasn't in a situation where he was prevented from coming here, was he?
[DEFENSE COUNSEL]: No, Judge. My understanding is there was some confusion about the date, and he had a death in the family as well during that period of time, which created some family confusion.
There was no further explanation provided by counsel. Nor does the record contain any documentation of a death in the family, such as an obituary notice. Accordingly, the court refused to grant defendant's motion for a new trial and proceeded to sentencing.
We are satisfied that defendant had fair notice of the trial date, that he chose to be absent from his trial, that he failed to sustain his burden of proving justification for his absence, and that the trial court made reasonable inquiry concerning his whereabouts. The record completely bespeaks a voluntary waiver of defendant's right to attend his trial. Defendant's claims that he was distracted by a relative's death during the week of the trial, and that he could have negated the State's proofs of guilt if he had been present and had testified, are completely unsubstantiated. His claims of prejudice are speculative. The relatively short length of the trial is immaterial.
Given the circumstances, we readily sustain the trial court's decision to conduct the trial in absentia.
Defendant next argues that the trial judge improperly refused to ask potential jurors, at defense counsel's request, if they had ever been involved in a car accident. He contends that, because this case involved several car accidents, the question was necessary to ferret out potential juror bias on the issue. The court's refusal to ask the question, he contends, is reversible error because it prevented the impaneling of a fair and impartial jury. Recognizing the trial court's broad discretion in conducting voir dire of prospective jurors, we discern no error on this issue.
The purpose of voir dire is to ensure that the jury empaneled is a fair and impartial one. State v. Williams, 93 N.J. 39, 61 (1983). Voir dire questions "should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially." State v. Erazo, 126 N.J. 112, 129 (1991).
Under R. 1:8-3, the court has broad discretion in conducting voir dire. This includes the ability to decline to ask questions submitted by counsel for the parties. R. 1:8-3(f). The court's discretion in voir dire matters, specifically in dealing with counsel's requests for particular inquiries of prospective jurors, is not ordinarily disturbed on appeal. State v. Papasavvas, 163 N.J. 565, 595 (2000). It is subject to reversal only upon a showing that defendant was deprived of the opportunity to select a fair and impartial jury. State v. Fortin, 178 N.J. 540, 575 (2004); Pressler, Current N.J. Court Rules, comment 1.2 on R. 1:8-3. No such showing is made here.
Specifically, prior to voir dire, defense counsel requested that the court ask two additional questions: (1) if any juror had ever had a car stolen, and (2) if any juror had ever been involved in a car accident. Defense counsel asserted that, because this case involved both a stolen car and one or more car accidents, and those are often traumatic events for people, potential bias could be rooted out in answers to those questions.
The judge declined to inquire into car accidents, but did ask jurors if they had ever had a car stolen, in the more general context of asking if they had ever been victims of crime. Any juror who answered "yes" to that particular question was then brought to sidebar and questioned further on the details of the incident. The judge then routinely asked each juror if he or she could still be impartial and "put aside your personal situation and judge the person on trial fairly and only consider the evidence introduced in this courtroom and nothing else about your past experience[.]"
We are satisfied that the trial judge properly carried out his responsibility, consistent with Erazo and other applicable authorities, to "probe the minds of prospective jurors" by asking them to explain details of the crimes they were victims of, and then by further asking them whether they could still be impartial. The questions the court posed on the subject were consistent with the current version of Model Jury Selection Questions (effective May 16, 2007) for criminal trials. Although the judge did not make a record of why he declined to ask jurors if they had ever been involved in a car accident, it is likely that, given the vast number of persons involved in car accidents in New Jersey each year, he would have found the answers to such questions time-consuming and unhelpful.
In fact, the jury ultimately acquitted defendant of two of the charges involving an automobile: aggravated assault based on running into Officer Brown with the car, and possession of a weapon, an automobile, for illegal purposes. That disposition belies defendant's argument that the voir dire prejudiced him.
We affirm the trial judge's determination in limiting the voir dire in a reasonable fashion.
Finally, defendant appeals as excessive his seven-year sentence on the second-degree eluding conviction. His arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). The judge appropriately took into account several aggravating factors, including, but not limited to, defendant's eight prior juvenile adjudications and five prior adult convictions. See N.J.S.A. 2C:44-1a(6). The mitigating factors were non-existent or negligible. The seven-year sentence was below the midpoint of the five to ten year range for a second-degree crime. N.J.S.A. 2C:43-6. Additionally, defendant was not sentenced above the former presumptive term for a second-degree crime, thereby rendering the constitutional precepts of State v. Natale, 184 N.J. 458, 484, 495-96 (2005), inapplicable. See also State v. Amodio, 390 N.J. Super. 313, 332 (App. Div.), certif. denied, No. A-264-04, 2007 N.J. LEXIS 1180, at *1 (N.J. Sept. 5, 2007).
Given the nature of defendant's dangerous conduct and his extensive prior record, the seven-year sentence was not manifestly excessive, see State v. Roth, 95 N.J. 334, 363-64 (1984), and it is sustained in all respects.