March 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PIERRE MONTAGUE BECKLES, A/K/A MONTE S. BALLER, PIERRE BECKLESS, JEFFREY RIVERS, PIERRE RIVERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-07-0809.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2008
Before Judges Fuentes and Grall.
Defendant Pierre Montague Beckles appeals from a final judgment of conviction and sentence. A jury found defendant guilty of the following crimes: second-degree eluding, N.J.S.A. 2C:29-2b (count one); second-degree aggravated assault by causing bodily injury to another while eluding, N.J.S.A. 2C:12-1b(6) (count two); third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1b(5) (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count five); third and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4) (counts six and seven); third-degree possession of a false driver's license, N.J.S.A. 2C:21-2.1c (count eight); and third-degree criminal mischief, N.J.S.A. 2C:17-3a (count nine). The jury returned a verdict of not guilty on count four, third-degree resisting arrest, N.J.S.A. 2C:29-2a.
After merging defendant's convictions on counts seven and eight into his convictions on counts one and two, the trial judge sentenced defendant to the following terms of incarceration: on counts one and two, concurrent eight-year terms; on counts three, five and nine, five-year terms concurrent with one another and with the sentences imposed on counts one and two; and on count six, an eighteen-month term, concurrent with all others. Pursuant to N.J.S.A. 2C:43-7.2, defendant must serve eighty-five percent of the eight-year term for aggravated assault and a three-year term of parole supervision. In addition, the judge imposed the appropriate assessments and penalties and required defendant to pay restitution in the amount of $4200 for damage caused to a police car.
We affirm defendant's convictions. Because the judge imposed a sentence on count five for fourth-degree resisting arrest that is within the range of sentences available for a crime of the third degree, we remand for correction of that illegal sentence. N.J.S.A. 2C:43-6a(4).
On April 30, 2005, defendant, driving a Mercedes with a passenger in his car, led police officers from three municipalities on a motor vehicle pursuit. Officer Luciano, one of the several officers who participated, was injured. He identified defendant as the driver after defendant was apprehended. The arrest was made by Detective DelDuca of the Union County Prosecutor's Office. When the officers in pursuit lost sight of the Mercedes, the detective went to the home of the registered owner, saw two men get out of the car, followed the men, ordered defendant to stop and had to struggle with defendant to restrain him with handcuffs.
The episode began during the early morning hours of April 30, 2005. Officer Hale of the Watchung Police Department saw a Mercedes pass through the intersection of Route 22 and Terrill Road against a red light. Officer Hale followed the Mercedes, got the license plate number and turned on his police car's overhead lights. The Mercedes continued along Terrill Road into Scotch Plains, passed through another intersection in disregard of another red light and came close to hitting a police car driven by an officer from Scotch Plains. After traveling in a residential area of Scotch Plains at a speed as great as sixty miles per hour, the Mercedes returned to and traveled east on Route 22, where it reached a speed as great as ninety miles per hour.
In Mountainside, defendant lost control of the Mercedes while attempting to negotiate a turn. Officer Luciano pulled his police car behind the Mercedes. Defendant briefly turned his head toward the rear window of the Mercedes, allowing Officer Luciano to see the full side of his face and his hair, which was chin length and styled in either dreadlocks or braids. Defendant's passenger had short hair, "shaved." Defendant put the Mercedes in reverse, and backed into the police car. The impact was sufficient to cause damage requiring repairs costing $4203.39. After backing into the police car, defendant and his passenger left the scene in the Mercedes. Because of the damage to his patrol car and the soreness of his neck, Officer Luciano was unable to follow. Another officer continued the chase until he lost sight of the Mercedes in Union.
The license plate number of the Mercedes was checked against motor vehicle records, and Detective DelDuca went to the Irvington address of the registered owner, Sharmaine Williams. The Mercedes was in the driveway, and its driver was backing it toward an open garage. When DelDuca pulled up to the driveway, the driver reversed direction and drove toward the street. DelDuca pulled into the driveway. The Mercedes stopped a few feet from DelDuca's car. Two men got out of the car and ran. DelDuca, who was watching the approaching car and not its occupants, could not say which one of the men was driving. Identifying himself as an officer, DelDuca pursued and was able to catch defendant. Defendant got on the ground as directed, but he cursed at DelDuca and resisted the detective's efforts to handcuff him.
The passenger was not apprehended. DelDuca lost sight of that man after he jumped a fence.
Defendant had a Florida's driver's license, which bore a photograph of him and the name "Monte Baller." Defendant first identified himself as Monte Baller and gave a street address for his residence that was the address of his aunt's home, not his. He later gave the officers his own name. Defendant was the subject of warrants issued for traffic-related and disorderly persons offenses. A photograph of defendant taken at the time of his arrest shows that his hair was styled with braids.
Defendant gave the following testimony at trial. From August 2004 until April 2006, he and Sharmaine Williams, the registered owner of the Mercedes, lived together at the Irvington address shown on the registration for the Mercedes. On the morning of April 30, 2005, Ian Bowen, who is Ms. Williams's cousin, was driving the Mercedes. Ms. Williams had leased the Mercedes for Bowen. Defendant was a passenger in Bowen's car at the time of the chase. Although he tried to get Bowen to pull over in response to the police officer's signal, Bowen refused. After the chase, Bowen took defendant home. They were in the Mercedes in defendant's driveway when DelDuca arrived. Defendant got out and ran because he knew what Bowen had just done and was, for that reason, afraid.
On cross-examination, the assistant prosecutor asked defendant about Mr. Bowen and Ms. Williams. Defendant did not know how to reach Bowen, and, although he had a phone number for Ms. Williams in April 2006, he did not know how to reach her at the time of trial. Defendant acknowledged that the prosecutor was correct in asserting that Ms. Williams "would have very valuable information to corroborate the story [defendant was] telling the jury." The following questions and answers followed:
Q: You never gave that information to the police. Did You?"
A: What's that?
Q: You never -- Sharmaine -- you never had Sharmaine Williams contact anybody. Did you?
A: I was waiting to talk to the court to really bring Sharmaine Williams with me.
Q: In your mind, the most important time for that information is 3 o'clock on --
The last question was interrupted by an objection from defendant's attorney. The assistant prosecutor immediately responded, "I'll strike it." In giving the jurors their final instructions, the trial judge directed: "Arguments, statements, remarks and summations of Counsel and openings are not evidence and must -- cannot be treated as evidence."
In a brief filed by the Public Defender on his behalf, defendant raises the following issues:
I. CROSS-EXAMINATION OF THE DEFENDANT CONCERNING HIS POST-ARREST SILENCE, AND HIS FAILURE TO PROVIDE THE POLICE WITH THE DETAILS OF HIS EXCULPATORY TRIAL TESTIMONY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI. XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10).
II. THE DEFENDANT'S CONVICTION AND SENTENCE ON COUNT FIVE MUST BE VACATED AS THE JURY ACQUITTED HIM OF THAT OFFENSE.
III. THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
The State candidly acknowledges, and we agree, that it was improper for the prosecutor to question defendant about his failure to give the police information about Ms. Williams's purchase of the Mercedes for her cousin. A question of that sort is an impermissible comment on the silence of a defendant after arrest. See State v. Elkwisni, 190 N.J. 169, 177-81 (2007).
The conclusion that the assistant prosecutor transgressed, however, does not end this court's inquiry. Id. at 181; R. 2:10-2. Even where the transgression involves a constitutional right of the defendant, we must disregard error that is "clearly [in]capable of producing an unjust result" because it is "'harmless beyond a reasonable doubt.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967)). Reversal is not appropriate unless there is "'a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
In this case we have no doubt that the prosecutor's transgression was incapable of changing the outcome of this trial. The two questions were brief, and defendant gave a single, prompt and simple response; the prosecutor immediately withdrew and did not repeat the third question after defendant objected. See Elkwisni, supra, 190 N.J. at 181 (considering the number of questions and the prosecutor's response to an objection in concluding that the transgression was harmless). Defendant's response -- that he planned to bring Ms. Williams with him to court -- was consistent with his testimony and other evidence that he had ended his relationship with her prior to this trial. See ibid. (considering consistency between evidence of the defense and the answer given by defendant in response to an improper question about silence and concluding that the transgression was harmless). The limited significance of the evidence that Ms. Williams could provide was apparent. Nothing in the record, including anything defendant said, suggested that Ms. Williams would have any information about who was driving during the police chase or at any other time on the day in question. Defendant did not deny that he was in the Mercedes; the only question was whether he was the passenger or the driver. Under these circumstances, we have no doubt that the assistant prosecutor's improper question, which we do not condone, was incapable of affecting the outcome. We assume that the jurors followed the judge's direction and disregarded the improper comment. See State v. Bauman, 298 N.J. Super. 176, 207-08 (App. Div.), certif. denied, 150 N.J. 25 (1997).
Defendant contends that his judgment of conviction and sentence reflect a conviction for a crime that the jury found was not proven by the State. The argument is based on defendant's confusion between the count numbers used to designate the crimes included on the verdict sheet and the count numbers in the indictment. The jurors found defendant not guilty of third-degree resisting arrest. Although that crime was charged in count four of the indictment, it was listed as count five on the verdict sheet. The jurors found defendant guilty of fourth-degree resisting arrest, which was charged as count five in the indictment and listed as count six on the verdict sheet. The judgment of conviction reflects a conviction for fourth-degree resisting on count five, which is consistent with the jury's verdict.
The error with respect to count five is in the sentence imposed. On this count, the judge sentenced defendant to a term of incarceration appropriate for a crime of the third degree, but defendant's conviction was for a crime of the fourth degree. Because the sentence is illegal, we remand for re-sentencing on count five.
Defendant's claim that his sentence is manifestly excessive lacks sufficient merit to warrant extended discussion. This court may not "substitute its judgment [about the appropriate sentence] for that of the trial court." State v. Natale, 184 N.J. 458, 489 (2005). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). Defendant's primary claim is that the judge did not find, as he and his attorney urged, a mitigating factor based on hardship to his family. While defendant and his attorney argued that defendant's three children would suffer hardship if he were imprisoned and they were deprived of his support, the presentence report, which was submitted to the trial judge without request for correction or addition, does not reflect defendant's income or his payment of child support and indicates that the children live with their mothers. See State v. Dalziel, 182 N.J. 494, 505 (2005) (discussing a similar inadequacy of evidence supporting this mitigating factor); State v. Kelly, 97 N.J. 178, 220 (1984) (discussing this mitigating factor where there is a presumption that incarceration is appropriate).
In a pro se supplemental brief, defendant raises three additional arguments*fn1
I. THE IDENTIFICATION PROCEDURES UTILIZED IN THIS MATTER WERE HIGHLY SUGGESTIVE AND RESULTED IN A IRREPARABLE MISIDENTIFICATION. THE DEFENDANT WAS DENIED A FAIR TRIAL IN VIOLATION OF THE U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, ¶ 1.
II. THE TRIAL COURT FAILED TO "REDO" THE IDENTIFICATION CHARGE TO THE JURY TO HELP CLARIFY THEIR PERPLEXITY CONCERNING "THE LEVEL OF REASONABLE IDENTIFICATION." THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL IN VIOLATION OF THE U.S. CONST. AMENDS. VI, XIV.
III. THE STATE WITHHELD MATERIAL EVIDENCE THAT WOULD HAVE BEEN HELPFUL TO THE DEFENSE IN CONDUCTING CROSS EXAMINATION. EVIDENCE MATERIAL IN [THE] SENSE THAT ITS SUPPRESSION UNDERMINES CONFIDENCE IN THE OUTCOME OF TRIAL. THE EXCULPATORY EVIDENCE WITHHELD BY THE STATE DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN VIOLATION OF THE U.S. CONST. AMEND. XIV.
After review of the record in light of the arguments presented, we conclude that the issues lack sufficient merit to warrant more than the brief comments that follow. R. 2:11-3(e)(1)(E).
First, the record provided on appeal does not include a record of or refer to a hearing on the admissibility of identification evidence. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This is a claim that cannot be considered without a record developed at a hearing on admissibility conducted pursuant to Rule 3:9-1(d) and N.J.R.E. 104. See State v. Rodriguez, 264 N.J. Super. 261, 268-70 (App. Div. 1993) (discussing standards for determining whether a hearing is required), aff'd o.b., 135 N.J. 3 (1994).
Second, although the judge gave the jury an identification charge that was proper and complete, the jurors subsequently asked the judge to explain "reasonable identification." The judge explained that it was the jurors obligation to determine whether the identification of defendant was "reasonable" and invited the jurors to seek additional guidance if needed. They did not request any additional guidance. Given the question asked and answer given, we cannot conclude that the judge's response was inappropriate. See State v. Savage, 172 N.J. 374, 394-95 (2002) (discussing judge's obligation to clarify the meaning of an ambiguous question and then address any confusion).
Third, there is no support in the record for defendant's assertion that the State suppressed a video of the pursuit that should have been recorded on equipment in Officer Luciano's patrol car. The only relevant evidence is Officer Luciano's testimony. According to the Officer, there was no recording because he failed to activate the device.
Defendant's convictions are affirmed; the matter is remanded for re-sentencing on count five.