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State v. Givens

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MALIK H. GIVENS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-05-0176.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2008

Before Judges A. A. Rodríguez and Collester.

Following a jury trial, defendant Malik H. Givens was convicted of second-degree eluding, N.J.S.A. 2C:29-2b. The judge imposed a ten-year term and mandatory fines and penalties.

Defendant appeals. He limits his challenge to the jury instructions:

BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (Not Raised Below).

INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).

We disagree with both contentions.

Defendant argues that the judge did not tailor the jury charge to include the scenario presented by defendant through cross-examination at trial. There were no defense witnesses. However, the proofs were straight forward. In the late evening of December 4, 2005, Greenwich Township Police officer David Voll responded to the aid of another police officer from Alpha, who was in foot pursuit. Voll saw a blue Chevrolet speeding away from the scene. He stopped it and approached the driver. Suddenly the driver took off. Voll ordered the driver to stop. The driver stopped again. Once again, the driver took off.

A chase ensued. At times, the Chevrolet and Voll's police vehicle traveled in excess of 75 mph in a 35 mph zone. This chase occurred on a two-lane highway in a no-passing zone. At one point, the Chevrolet changed directions, but continued to drive on the southbound side of the road.

Eventually, the two vehicles collided. The police vehicle was disabled. However, the Chevrolet fled the scene. It was recovered, abandoned in a driveway. Subsequent police investigation developed the name of defendant as a possible driver. Voll identified defendant's photograph from an array. He also identified defendant in court as the driver of the Chevrolet.

We are mindful that, generally, "tailoring" or molding jury instruction may be necessary for comprehension by the jury of the applicable law. However, it was not necessary here. Defense counsel explored any possible doubt in the State's case. It was up to the jury to credit or reject the State's evidence. The judge's role was to explain the law, not to crystallize the parties' arguments.

Defendant also argues that the identification charge was erroneous and prejudicial because it failed to identify the weakness in the State's case. However, we perceive no error in the charge. Moreover, this was a short case. Defense counsel was fully aware of the weaknesses on the identification testimony. Counsel argued this point on sanctions.

We note that trial defense counsel made no objection.

Thus, the plain error standard applies. Rule 2:10-2. That rule provides:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

Not any possibility of an unjust result will suffice. Stated in terms of its effect in a jury trial, the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Judged against that standard, we find no plain error here. They key issue on this case was identification. The jury resolved that issue after being properly instructed on the law. There is no reason for us to interfere.

Affirmed.

20080827

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