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State v. Green

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 27, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOUGLAS C. GREEN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-0171.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 16, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

After a jury trial, defendant Douglas C. Green was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The trial judge, sitting as a municipal court judge, additionally found defendant guilty of driving while his license was suspended, N.J.S.A. 39:3-40, and improper passing, N.J.S.A. 39:4-85. The jury acquitted defendant of fourth-degree aggravated assault upon police officer James Van de Zilver, N.J.S.A. 2C:12-1(b)(5)(a), and could not reach a verdict on two other counts charging defendant with third-degree aggravated assault upon police officer Christopher Spagnuolo, N.J.S.A. 2C:12-1(b)(5)(a), and second-degree aggravated assault while fleeing or attempting to elude Spagnuolo, N.J.S.A. 2C:12-1(b)(6). The judge granted the prosecutor's subsequent motion to dismiss those counts.

Prior to sentencing, defendant moved for a new trial or for judgment notwithstanding the verdict (JNOV). The judge denied most aspects of defendant's motion, however, he did agree that the jury's verdict on the resisting arrest charge needed to be molded to a disorderly persons violation. The judge sentenced defendant to five years imprisonment on the eluding charge and 180 days on the resisting arrest charge with both terms to run concurrently. He imposed the appropriate penalties and assessments on these counts and the motor vehicle offenses.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT ON COUNT TWO CHARGING SECOND-DEGREE ELUDING. THE TRIAL COURT IMPROPERLY ADDED AN ADDITIONAL THEORY OF CULPABILITY TO A CRIME OF THIRD-DEGREE ELUDING. [Partially raised below.]

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION TO CONDUCT AN IN CAMERA REVIEW OF OFFICER SPAGNUOLO'S PERSONNEL FILE TO DETERMINE IF THERE EXISTED RELEVANT INFORMATION TO ENABLE THE DEFENDANT TO PROPERLY CROSS-EXAMINE AND IMPEACH HIS CREDIBILITY AS A VICTIM. THE COURT'S DENIAL DEPRIVED THE DEFENDANT OF HIS RIGHT OF CONFRONTATION GUARANTEED BY THE SIXTH AMENDMENT.

POINT III

THE COURT ERRED IN ADMITTING THE DEFENDANT'S PRIOR CONVICTIONS. IN THE ALTERNATIVE, THE COURT SHOULD HAVE SANITIZED THE CONVICTIONS AND ISSUED AN IMMEDIATE LIMITING INSTRUCTION NOTWITHSTANDING ITS INCLUSION OF A LIMITING INSTRUCTION DURING THE CHARGE TO THE JURY. THE COURT ERRED WHEN IT PERMITTED THE ADMISSION OF THE NURSE'S TESTIMONY WHICH WHEN COUPLED WITH THE ADMISSION OF THE PRIOR CONVICTIONS, CONVEYED TO THE JURY THAT THE DEFENDANT WAS A BAD PERSON, THEREBY DEPRIVING HIM OF A FAIR TRIAL. [Partially raised below.]

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO PERMIT THE DEFENSE TO REOPEN ITS CASE TO INTRODUCE IMPORTANT PHOTOGRAPHS OF THE DEFENDANT AND WHEN IT DENIED THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THIS ERROR.

POINT V

VARIOUS ASPECTS OF THE COURT'S CHARGE, BOTH PRELIMINARY AND FINAL, DEPRIVED THE DEFENDANT OF A FAIR TRIAL REQUIRING REVERSAL OF HIS CONVICTIONS. [Not raised below.]

POINT VI

THE TRIAL COURT ERRED WHEN IT REFUSED TO CHARGE THE JURY WITH REGARD TO THE DEFENSE OF NECESSITY.

We have considered these contentions in light of the record and applicable legal standards. We affirm.

I.

The State commenced its case with the testimony of detective Harry Van de Zilver of the Lakewood police department. He testified that on February 26, 2004, at approximately 5:00 p.m., he and two other officers were in plainclothes in an unmarked police van when they noticed defendant drive past them at a high rate of speed. Van de Zilver recognized defendant and he believed defendant recognized him as a police officer. Intending to stop defendant's car, the officers turned their vehicle around and radioed for a marked police unit to assist them as they followed defendant's vehicle. Although the officers ultimately lost sight of defendant, they broadcast a description of his car, a partial description of its license plate number, and its general direction of travel. They continued in that direction themselves.

Officer Joseph Prebish, who was riding with detective Van de Zilver, testified that other officers ultimately stopped defendant's vehicle in the parking lot of Holy Family Church and he identified defendant in court. Prebish did not recall seeing any struggle in the church parking lot between defendant and the other five or six officers that were already there.

Officer Christopher Spagnuolo testified. Spagnuolo was on duty in full uniform and in a marked police unit when he heard the radio broadcast by Prebish that described defendant's vehicle and requested assistance in stopping the car. Spagnuolo spotted defendant's vehicle and began to pursue it with his lights and sirens on. Defendant pulled over to the side of the road, and Spagnuolo approached the vehicle after broadcasting his location on his portable radio.

Spagnuolo testified that defendant was very belligerent and refused to shut off the ignition as requested. As Spagnuolo reached in the car to remove the keys, defendant grabbed his arm and tried to pull him into the vehicle. Spagnuolo struggled with defendant but was unable to free himself from his grasp and ultimately had both hands in the vehicle as defendant raised the window of the car.

Dropping the radio that he held in his right hand into the car, Spagnuolo was able to free himself partially as defendant placed the car in drive. With one arm still in the car, Spagnuolo was dragged eight to ten feet as he used his pepper spray on defendant. The officer freed himself completely, returned to his police vehicle, and pursued defendant's car for approximately five hundred yards until it turned into the church parking lot.

Officer James Van de Zilver, in another marked police unit, immediately took up the pursuit of defendant's car as it fled from Spagnuolo. As defendant emerged from his vehicle in the church parking lot, Van de Zilver drew his weapon and ordered defendant to the ground; defendant refused, however, and knocked the gun from his hand. A physical struggle ensued and Van de Zilver and Spagnuolo were pulled to the ground. Eventually, with the assistance of others, Spagnuolo handcuffed defendant and placed him in custody. Spagnuolo suffered minor injuries from the incident and was out of work for three days. On cross-examination, Spagnuolo acknowledged that he had not turned on his police vehicle's video recording system during the incident, even though departmental policy required him to do so.

Officer James Van de Zilver testified that he pursued defendant's car for approximately four hundred yards before it turned into the church parking lot. He saw the car passing vehicles and saw defendant waving his arms while he was driving.

Van de Zilver claimed that defendant exited his car in the parking lot, walked toward him, and knocked his gun out of his hand. Defendant told the officers, "I'll let you arrest me," but nonetheless refused to heed their commands to get on the ground. Van de Zilver's vehicle's video and audio recording system was operational during the stop of defendant's car and the ensuing melee in the church parking lot. The State played the tape for the jury.

During cross-examination, Van de Zilver acknowledged that the audio recording of the incident included defendant's reference to his earlier contact with Spagnuolo, specifically, defendant exclaimed, "The cop walked up to me and started attacking me, and I'm getting arrested?" Van de Zilver also acknowledged that "because of the severity of how [things] were going down," he failed to point his vehicle's video camera in the direction of the physical encounter with defendant.*fn1

The State's last witness was officer Thomas Langenberger who also responded to the church parking lot and participated in the arrest of defendant. He too had forgotten to turn on the video recording system in his police car. Langenberger testified that defendant was not injured in any way because of the altercation with the officers.

After the judge denied his motion to dismiss, defendant called his first witness, Lakewood police captain Charles H. Smith. He testified regarding the department's video recording policy noting it was "implemented to ensure the integrity of the field operations of the [police department] personnel." Smith acknowledged that the policy was also implemented to "protect[] [] police officers from allegation[s] of misconduct."

During pre-trial motions, over defendant's objection, the judge ruled that defendant's prior convictions from 1999 for possession of CDS in the second-degree, and possession of CDS within 1000 feet of a school zone, would be admissible for impeachment purposes if defendant testified. As the second day of trial testimony began, the judge extensively questioned defendant about his decision to testify in his own behalf. Defendant indicated that he had had ample time to discuss the issue with his attorney, fully understood the judge's earlier ruling, and in fact wished to testify.

Defendant left work at approximately 4:15 p.m. on the day in question and tried to visit his son, but the boy was not home. He acknowledged that he knew detective Van de Zilver, that the detective knew him, that he knew a van with tinted windows was following him, but he claimed that he could not see who was driving the van because the driver and front seat passenger wore hooded shirts. Defendant claimed that he was in bumper-to-bumper traffic when Spagnuolo's vehicle pulled behind his and he immediately pulled over to the shoulder in response.

According to defendant, Spagnuolo approached him in a menacing manner, ordered him to turn off his ignition, and when defendant queried why, Spagnuolo reached in and tried to turn it off himself. When defendant grabbed his arm, Spagnuolo hit him in the head with his police radio and "maced" him. Defendant admitted that he then raised the car window and pulled the car away. Defendant testified that when he saw the second police car behind him, he pulled into the church parking lot, the first available safe spot where he could bring the car to a halt.

With respect to his actions in the parking lot, defendant denied ever assaulting any of the officers or knocking Van de Zilver's gun from his grasp. Defendant acknowledged that he did not "get on the ground" as ordered because he was frightened after his encounter with Spagnuolo. He claimed one of the officers stepped on his head twice as he lay on the ground.

On cross-examination, defendant acknowledged his prior convictions and identified photographs taken at the Ocean County jail on the night of his arrest. Although these photos apparently showed no bruises, injuries or swelling to defendant's head or face, defendant claimed that the photos failed to show the back of his head or the left side of his face where Spagnuolo had struck him. Defendant rested after his testimony.

The State called Amy Gonzales, a nurse from the Ocean County Jail, as a rebuttal witness. She testified that defendant denied any injuries that night when she performed a medical screening prior to his admission to the facility. She also failed to note any injuries during her cursory examination of defendant; however, she noted on the medical forms she completed that night that defendant had suffered a gun shot to his leg some six months earlier. Defense counsel did not object to this testimony nor seek a curative instruction.

The judge then permitted defendant to testify on sur-rebuttal. Defendant claimed that the police allowed him to wash his eyes, wash his hands, and supplied him with ice for the bumps on his head and face at the police station before transporting him to the jail. This concluded the testimony in the case.

The judge apparently supplied a written version of his proposed charge and jury verdict sheet to both attorneys, advising that "when [they were] ready, we can sit down and have a charge conference." We gather, however, that a conference did not take place until after summations and that it was held in the judge's chambers without a record.

Immediately prior to instructing the jurors, but outside their presence, the judge indicated that defense counsel "requested [a] necessity charge, as was referred to in the case of State v. Romano."*fn2 The judge indicated "that the Legislature has addressed that," and he would "put those model charges in as [defense counsel] has requested, justification and self-defense, both with regard to the resisting, [and] with regard to the aggravated assault." Defense counsel raised no objections to the charge as given.

Jury deliberations commenced late in the afternoon and continued the following morning after the judge had responded to several jury questions. These included a requested read-back of defendant's testimony and instructions as to the elements of the crimes charged. During deliberations, defense counsel requested the case be re-opened to permit the introduction of a photocopy of a photograph taken of defendant on the night in question at the Lakewood police department. Defense counsel acknowledged the State furnished the photocopy in discovery. The judge denied the request, finding it was made well after the case ended; he further noted the photograph "len[t] no probative value to the issue at hand, because it is photocopied in black and white . . . and [] is not a good-quality photocopy."

Near the end of the second day of deliberations, the jury indicated they were deadlocked on certain counts. The judge, without objection, decided to take the partial verdicts as we have set forth above and the prosecutor dismissed the remaining counts of the indictment. Defendant's pro se motion for a new trial or for JNOV as supplemented by defense counsel was heard on the day of sentencing. By that time, two letters written by a juror, one to the judge and one to defendant, were before the court. We discuss their contents below. The judge partially granted defendant's motion, as we have noted, imposed sentence, and this appeal ensued.

II.

We find a number of arguments raised by defendant to be of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments as to those points.

In Point I, defendant argues that the trial judge abused his discretion by denying his motion for JNOV because the State failed to prove the necessary elements of second degree eluding, and because the judge "improperly added an alternative theory of culpability" not in the criminal code. In the alternative, defendant asserts that the trial judge should have molded the jury verdict to the crime of third degree eluding. We disagree.

N.J.S.A. 2C:29-2(b) provides:

Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.

Defendant contends he could not be guilty of eluding because it was undisputed that he came to a complete stop upon receipt of Spagnuolo's signal and therefore, his flight from Spagnuolo, whether justified or not, was not an act encompassed by the statute. He further contends that his conduct while pursued by Van de Zilver did not constitute eluding because (1) he did not immediately see the officer's lights; and (2) he did stop at the first safe opportunity. Lastly and alternatively, defendant argues that any injuries sustained by Spagnuolo occurred after defendant had fully stopped and thus cannot elevate the crime to second-degree eluding.

As to the first contention, we have said that "eluding consists simply of fleeing by motor vehicle from a person who the perpetrator knows to be a law enforcement officer." State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd 175 N.J. 201 (2002). The State's proofs in this regard, therefore, were sufficient to allow the jury to conclude that defendant fled from Spagnuolo by car.

Defendant contends that by telling the jury they could find defendant guilty if the State "prove[d] beyond a reasonable doubt that [defendant] knew he was being pursued by police officers but still did not stop, or after stopping, the defendant proceeded again without having been authorized by the police to proceed," the judge added language to the model charge that defined a theory of culpability not contained in the statute. Defendant notes further that in his letter to the judge, the juror noted that "[defendant] was found guilty of eluding police because he had not been told by the officer that he could leave." Since defendant made no objection to the charge at the time, our review must be conducted under the plain error standard. State v. Afanador, 151 N.J. 41, 54 (1997).

However, defendant argues that even assessed by that standard, the juror's letter demonstrates the erroneous instruction was "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

We disagree with the premise that the additional instruction was a misstatement of the law. Viewing the evidence in a manner most favorable to the State, as the trial judge was required to do when considering defendant's post-trial motion, defendant 1) failed to turn off his ignition when requested; 2) grabbed the officer's arm; 3) raised the car window trapping the officer's arm; and 4) subsequently left the scene with the officer's arm still inside the car. Defendant never contended he believed he was free to resume driving. Thus, we have no doubt that reasonable jurors could have found defendant guilty of eluding. While the judge admittedly deviated from the model jury charge, he was simply molding the instruction to the facts presented. See State v. Savage, 172 N.J. 374, 389 (2002) (reaffirming the need of the trial judge to "relate the law to the facts of a case").

Since there was sufficient evidence to support the conviction based solely upon defendant's actions with respect to Spagnuolo, his argument regarding his conduct while Van de Zilver was pursuing him is moot. As to the claim that the evidence did not support a second-degree eluding, we disagree because the evidence produced fully supported the jury's conclusion that Spagnuolo suffered injuries because of defendant's actions in leaving the scene of the original stop.

We likewise find no merit to defendant's Point III. He argues that the trial judge should not have allowed his prior convictions to be admitted for impeachment purposes, or alternatively, should have sanitized the convictions and given an immediate limiting instruction rather than wait to include the charge in the general instructions at the end of the trial. He further contends that in conjunction with Nurse Gonzales' testimony regarding his bullet wound, the evidence portrayed defendant as a "bad person" and prejudiced the jury against him.

"Whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978). This discretionary authority is broad and "the burden of proof to justify exclusion rests on the defendant." Ibid. Here, there was no mistaken exercise of discretion since the convictions did not fall outside the "ten-year rule" generally followed by New Jersey courts and were not remote. State v. Morris, 242 N.J. Super. 532, 544-46 (App. Div.), certif. denied, 122 N.J. 408 (1990). Nor was sanitization required because the prior convictions were not for a crime similar to that which defendant currently faced. See State v. Brunson, 132 N.J. 377, 394 (1993) (noting that only similar crimes need to be sanitized). Defendant cites no authority for the proposition that the jury should have received a limiting instruction immediately, he acknowledges no request for one was made, and admits the final instructions actually given were correct.

As to Gonzales' testimony about defendant's bullet wound, the judge was unable to take any curative action because defendant did not object to the testimony, request that the judge strike it, or request an instruction for the jury. Given the fleeting nature of the comment, its admission was not plain error standing either alone or in conjunction with the testimony regarding defendant's prior convictions. R. 2:10-2.

We find no merit to defendant's Point IV in which he argues that the judge abused his discretion by denying his request to reopen the case for the introduction of a photocopy of an arrest photograph. The decision to reopen a case for the introduction of additional evidence is within the discretion of the trial judge and will not be disturbed unless it amounts to a clear abuse of that discretion. State v. Wolf, 44 N.J. 176, 191 (1965); State v. Cooper, 10 N.J. 532, 564 (1952). Given that the evidence was admittedly in defendant's possession for some time, had not suddenly or unexpectedly appeared, and that the judge found it to be of little probative value, the denial of the request was not a mistaken exercise of judicial discretion.

III.

A.

We next consider defendant's challenges to the judge's jury charge. In Point V he argues that the judge's preliminary instructions, his charge as to the requisite mental states required for conviction, and his instructions on the eluding charge were erroneous and require reversal of his conviction. We disagree.

Since there were no objections below, we review the arguments raised under the plain error standard, and we commence by recognizing the well-settled principle that "appropriate and proper charges to a jury are essential to a fair trial." State v. Green, 86 N.J. 281, 287 (1981)(citation omitted). However, "[i]n the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007)(quoting State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge has been held to be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (citation omitted), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.

Defendant contends that the judge's preliminary instructions before and after the jury was sworn omitted those portions of the criminal model jury charge regarding burden of proof, presumption of innocence and reasonable doubt. He further contends that the judge defined the mental state of "knowing" or "knowingly" only once during his statement of the elements of each crime. Lastly, he argues again that the judge added instructions to the model charge on eluding thereby encompassing behavior not punished by the statute. He further claims that the crime of second-degree eluding requires the "culpability requirement of a knowing mens rea and the failure of the court to so instruct and the Model Jury Charge to so include it in its instruction is plain error."

As to this latter claim, the Supreme Court has concluded otherwise. State v. Thomas, 187 N.J. 119, 137 (2006). Additionally, we have already addressed above defendant's other argument regarding the eluding instructions.

While it would have been preferable for the judge to recite the entire model preliminary charges to the jurors, we cannot conclude the omission was plain error. The final instructions to the jury followed the model charge and adequately instructed the jury before they began their deliberations as to the important concepts of presumption of innocence, burden of proof and reasonable doubt. Defendant does not contend otherwise.

Lastly, we find no plain error in the judge's failure to repeat the definition of "knowing" or "knowingly" when he provided instructions on each substantive crime. Defendant does not contend the instruction was erroneous, only that it should have been repeated. Defendant is not entitled to the verbatim use of the model charges; rather, he is entitled to an adequate instruction on the law, which he received here. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002)(citation omitted). Since defendant has failed to demonstrate that the jury charge inadequately stated the law, was misleading or ambiguous, or created a genuine risk that the definitions confused the jurors, State v. Parker, 124 N.J. 628, 636 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed. 2d 625 (1992), defendant has not demonstrated plain error.

B.

In Point VI, defendant argues that the jury should have received an instruction on the defense of necessity, N.J.S.A. 2C:3-2(a), under our holding in Romano, supra, 355 N.J. Super. 21. Since defendant requested the charge pre-trial, the plain error standard does not apply to our review. In short, he contends that the facts supported a conclusion that his flight from Spagnuolo's motor vehicle stop was justified by the necessity to avoid further assaultive behavior by the officer.

In Romano, we reversed the defendant's DWI conviction, concluded he was entitled to assert the defense of necessity, and held that the State bore the burden of proof to overcome that defense. Id. at 23. We set forth the elements of the necessity defense as follows:

(1) There must be a situation of emergency arising without fault on the part of the actor concerned;

(2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;

(3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and

(4) The injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong. [Id. at 29. (citing State v. Tate, 194 N.J. Super. 622, 628 (App. Div. 1984), rev'd on other grounds, 102 N.J. 64 (1986)).]

We further noted that "[i]f the legislature 'has in fact anticipated the choice of evils and determined the balance to be struck between the competing values, defendants and courts alike are precluded from reassessing those values to determine whether certain conduct is justified[,]'" thus making the defense unavailable. Id. at 30 (quoting Tate, supra, 102 N.J. at 74).

Unfortunately, the transcript fails to reveal the judge's full consideration of the issue and contains only his oblique reference to the fact "that the Legislature has addressed that[.]" While we cannot discern what the judge meant, we are satisfied that refusing to give any charge on necessity was not error under these circumstances.

First, defendant admitted that he failed to turn off his ignition despite Spagnuolo's direct command to do so. He also admitted that he grabbed the officer's arm as he reached in the vehicle to remove the keys. We see no justification for either of those actions. Thus, the very start of the continuous encounter with the police did not arise out of defendant's faultless behavior. In short, like the cases we distinguished in Romano, defendant "w[as] partially responsible for creating the situation which gave rise to the harm to be avoided." Id. at 32.

We parse defendant's argument to suggest that even if this undisputed conduct occurred, the necessity of his fleeing by car arose only after Spagnuolo hit him with the radio and sprayed him with mace. However, even viewed in that light, the necessity charge was not warranted.

Assuming arguendo defendant's testimony demonstrated an "imminent and compelling" emergency that "raise[d] a reasonable expectation of harm," the situation did not "present no reasonable opportunity to avoid the injury without doing the criminal act," that is driving off into traffic with the officer hanging on to the vehicle. Defendant acknowledged he made efforts to resist the officer's alleged assault. In fact, the judge instructed the jury on the issues of justification and self-defense. Under the circumstances presented, driving away was not the only reasonable action available to defendant.

Lastly, in fleeing Spagnuolo, defendant re-entered the roadway after being sprayed with mace and passed other vehicles while being pursued by Van de Zilver and Spagnuolo. Although he drove for only a short distance, this undoubtedly created the potential for serious harm that outweighed the potential injuries he claimed he might have suffered had he stayed in the car at the side of the road. The Supreme Court has noted, "[c]ases abound in which a suspect's 'flight from the police set in motion an ensuing chase that resulted in death or serious injury either to a police officer, a suspect, or a bystander.'" State v. Williams, 192 N.J. 1, 12-13 (2007) (quoting State v. Crawley, 187 N.J. 440, 455 n. 6, cert. denied, ___ U.S. ___, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006)). In sum, the decision not to charge necessity as a defense to the eluding charge was not error.

IV.

In Point II, defendant argues the trial judge abused his discretion by denying his pre-trial motion to "compel discovery of personnel records, investigative reports, internal reports relating to [] Spagnuolo and any prior incidents involving the officer's use of force in effectuating arrests." For purposes of our discussion, we refer to the requested documents simply as Spagnuolo's file.

At a hearing conducted before jury selection began, defense counsel argued he was entitled to the information "because . . . this is one of those rare circumstances where the Rules of Evidence would permit character evidence." He continued

[T]he victim in this case is Officer Spagnuolo . . . who along with . . . others were indicted in this county with regard to an alleged assault against Thomas Jacobs. Although they were acquitted under the criminal burden of proof, they have in fact paid [] Jacobs 1.2 million dollars.

Now . . . I'm not supposed to go on a fishing expedition; but in this case there is more than just a naked allegation, when you actually have the injury to [] Jacobs and the payment by the [t]own on his behalf.

I don't know when [Spagnuolo] came back on the force. I know he was found not guilty in 2002 . . . . I don't know whether there's internal disciplinary action, things of that nature.

But . . . the traits of character, in this case the aggressiveness or violence or propensity to violence of [] Spagnuolo, is clearly right on all fours in this case and one of the rare cases where we are allowed to do that.

The prosecutor objected, arguing that our opinion in State v. Aguiar, 322 N.J. Super. 175 (App. Div. 1999), permitted only the use of prior convictions of the victim to demonstrate a "propensity towards violence." Since Spagnuolo was acquitted, the proffered evidence was inadmissible. As to other "incidents" referenced in defendant's brief in support of the motion, the prosecutor claimed the State lacked any knowledge.

Defendant countered by arguing that he "d[id]n't know what l[ay] inside the personnel files or any evaluation of [] Spagnuolo." His motion was based upon newspaper accounts and "four tort claims" and "two or three cases" against Spagnuolo that "were administratively dismissed."

In his oral decision, the judge cited State v. Harris, 316 N.J. Super. 384 (App. Div. 1998), and State v. Kaszubinski, 177 N.J. Super. 136 (Law Div. 1980). He reasoned that defendant had failed to "allege any facts with which this [c]court can conclude, if taken as true, that [] Spagnuolo was engaged in an unlawful, excessive use of force in the course of arresting the defendant." The judge noted the lack of any allegation "as to prior contact with [] Spagnuolo, or prior interaction between [defendant] and [] Spagnuolo, to any extent whatsoever . . . ." The judge concluded "[a]bsent any specific allegation of police misconduct resulting in the need to defend himself, this [c]court cannot conclude that the personnel files of [] Spagnuolo contain any information material to this issue or exculpatory to this defendant . . . ." We note the record indicates the judge did not conduct an in camera review of any material before reaching this conclusion.

Defendant argues it was an abuse of discretion requiring reversal for the judge to have denied his discovery request. Alternatively, he contends the judge should have conducted an in camera inspection of Spagnuolo's file to determine whether "there existed any relevant information for use by defense counsel"; the failure to do so was a violation of his right to confrontation under the federal and state constitutions. Defendant points to the juror's letter to the judge indicating that he learned after trial "this was not the first time that one of the officers involved . . . has been accused of police brutality . . . ." The juror specifically referenced Lakewood's civil settlement in the case in which Spagnuolo was acquitted.

It clearly would have been the better practice for the judge to have conducted an in camera review. Although the judge considered the issue pre-trial and did not have the benefit of defendant's testimony at the time, it is obvious that defendant claimed Spagnuolo used excessive and unjustified force during the motor vehicle stop. Indeed, by charging the jury on self-defense, the judge acknowledged that the question of who was the aggressor was central to the case. However, under the unique facts presented, we conclude that any error was harmless and does not require reversal.

We begin by noting that "[t]he determination of whether police personnel records should be disclosed involves a balancing between the public interest in maintaining the confidentiality of police personnel records and a defendant's guarantee of cross-examination under the Confrontation Clause." Harris, supra, 316 N.J. Super. at 397 (citation omitted). "In balancing these considerations, the party seeking an in camera inspection must advance 'some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.'" Id. at 398 (quoting Kaszubinski, supra, 177 N.J. Super. at 139).

The factual predicate actually advanced by defendant to compel discovery of Spagnuolo's file, however, was essentially limited to the earlier indictment in which the officer was accused, but acquitted, of assaulting another citizen. We therefore turn to consideration of whether defendant advanced a reasonable theory by which the judge could have determined the contents of Spagnuolo's personnel file might likely "contain[] material information." Harris, supra, 316 N.J. Super. at 399 (collecting out-of-state cases in which defendant's failure to do so justified the court's refusal to conduct an in camera inspection). Defendant argued that evidence regarding Spagnuolo's character trait--his propensity for violence--was admissible. Citing State v. Engels, 2 N.J. Super. 126, 129 (App.Div. 1949), and State v. Burgess, 141 N.J. Super. 13, 16 (App. Div. 1976), he claimed that "the conduct and the state of mind of the defendant is probative of whether he might not have acted in self-defense or under reasonable provocation . . . ."

Since the revision of our evidence rules, however, defendant's state of mind is not the touchstone for admissibility of character evidence regarding the alleged victim's violent tendency. A defendant "can adduce evidence of the victim's violent character for the purpose of proving that the victim's character for violence tends to show that the victim was the initial aggressor." State v. Jenewicz, ___ N.J. ___ (slip op. pg. 20) (2008)(emphasis added)(citation omitted). "Personal knowledge of the victim's propensity for violence is not a prerequisite for admission of victim character evidence under N.J.R.E. 404(a)(2)." State v. Aguiar, supra, 322 N.J. Super. at 184. However, the fact that "character evidence can be produced to prove a victim's propensity for violence does not end the admissibility inquiry[.]" Jenewicz, supra, ___ N.J. ___ (slip op. at p. 20).

A victim's prior conviction of a violent crime is admissible to prove he possessed the character trait of a propensity for violence. Aguiar, supra, 322 N.J. Super. at 183; N.J.R.E. 405(a). However, Spagnuolo was acquitted of the crime for which he was indicted and defendant does not assert any other criminal convictions exist.

Assuming a review of Spagnuolo's file would have revealed some prior bad acts he committed that did not result in a criminal conviction, such evidence would also be inadmissible to prove the alleged violent character trait. Pursuant to N.J.R.E. 405(b), specific instances of conduct cannot be used to prove a character trait unless the trait is "an essential element of [the] charge, claim, or defense." The Supreme Court has now held that "a victim's violent character is not an essential element of self-defense," thus making specific instances of bad conduct inadmissible to prove the character trait. Jenewicz, supra, ___ N.J. at ___ (slip op. p. 24).

In his brief, defendant now argues, apparently for the first time, that Spagnuolo's file might have revealed evidence that "could affect the officer's credibility." In Harris, supra, the defendant claimed that the police officer victim, who knew defendant from prior arrests, was himself a drug abuser and had "shaken [defendant] down" on prior occasions. 316 N.J. Super. at 395. On the day the officer completed his testimony in the case, he was suspended by the police department for refusing to provide a urine sample to members of the internal affairs squad investigating a citizen's claim that the officer was shaking him down for drugs. Id. at 395-96. In reversing the trial judge's refusal to permit discovery of the officer's personnel file, we acknowledged "that courts generally allow either direct or in camera inspection of police personnel records when the defense claims the officer was the aggressor and the court finds that parts of the officer's personnel history may be relevant to the officer's credibility or to the defendant's claim of self-defense." Id. at 398.

We note several important factual distinctions between Harris and the case at hand. Defendant never claimed that he knew Spagnuolo or ever had any dealings with him prior to the day in question. Defendant never claimed that the factual circumstances surrounding Spagnuolo's prior bad act, the indictment for which he was acquitted, were in anyway similar to this case.*fn3

Nevertheless, since the judge refused to conduct an in camera review, we acknowledge that we cannot tell whether the personnel files contained information that might have been somehow relevant to Spagnuolo's credibility. However, we conclude that any error committed was harmless. We reach this conclusion for a number of reasons that are idiosyncratic to the facts presented.

First, the judge appropriately charged the jury with Criminal Model Jury charges N.J.S.A. on 2C:3-4, "Self-defense- Resisting Arrest," and "Self-defense in self-protection." In providing the latter, the judge told the jury to apply the instructions to its consideration of the three assaults charged in the indictment and the eluding charge. The jury acquitted defendant of one of those assaults, upon Van de Zilver, and could not reach a verdict as to the other two assaults charged, against Spagnuolo; these were ultimately dismissed. Therefore, assuming an in camera review of Spagnuolo's file would have revealed evidence admissible solely to affect the officer's credibility, defendant suffered no adverse consequences as a result of the failure to conduct the review at least as to the assault counts.

Nor did that failure create an adverse consequence to defendant on the resisting arrest charge. It is clear from the evidence, the summations of counsel, and the judge's charge that the State claimed defendant resisted arrest in the church parking lot, not at the scene of Spagnuolo's motor vehicle stop. Defendant acknowledged that he did not get on the ground when ordered by Van de Zilver and essentially conceded that he did not cooperate in the handcuffing procedure. We fail to see how any evidence affecting Spagnuolo's credibility regarding the motor vehicle stop would have made any difference to that outcome.

That leaves defendant's conviction for eluding. First, as noted above, the judge instructed the jury to apply the principles of self-defense to the assault charges, the resisting arrest charge, and the eluding charge. We question whether that was appropriate in the first instance. Under other facts, defendant may be entitled to the charge on necessity; but we are hard-pressed to see how self-defense can ever provide justification for commission of the crime of eluding. This is particularly true here given defendant's own testimony.

Defendant acknowledged he did not turn off his ignition when Spagnuolo requested him to do so; he further admitted that he grabbed the officer's arm when he tried to secure the keys. Both sides vigorously contested what happened thereafter, and defendant ultimately prevailed to the extent that the two charges of assault on Spagnuolo were dismissed. Assuming arguendo that a review of Spagnuolo's file could have produced some evidence adversely affecting his credibility, we fail to see how it would have mattered. Even if defendant's version of the ensuing events was accepted as true--Spagnuolo hit him with the radio and maced him after defendant grabbed his arm while it was in the vehicle--defendant was not legally entitled to flee in his vehicle and commit the crime of eluding unless he demonstrated the elements establishing the defense of necessity. As stated above, this he failed to do.

In sum, it was error for the trial court to refuse to conduct an in camera review of Spagnuolo's personnel file. However, under the unique circumstances of this case, particularly in light of defendant's own testimony, we find the error to be harmless. See Macon, supra, 57 N.J. at 338 (holding an error brought to the trial court's attention is harmless unless there is a reasonable doubt that the error contributed to the verdict).

Affirmed.


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