September 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAUL CALDERON A/K/A RAUL VEGA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Messano and Chambers.
Defendant Raul Calderon appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). After granting the State's motion to impose a mandatory extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f), the judge sentenced defendant to an eight-year term of imprisonment with four years of parole ineligibility. On appeal, defendant raises the following points for our consideration:
POINT ONE THE TRIAL COURT ERRED IN GIVING THE JURY A "FLIGHT" INSTRUCTION OVER DEFENSE COUNSEL'S OBJECTION AS IT WAS NOT SUFFICIENTLY SUPPORTED BY THE EVIDENCE BELOW.
POINT TWO THE TRIAL COURT ERRED IN BEGINNING THE SECOND DAY OF TRIAL WITHOUT DEFENDANT'S PRESENCE IN VIOLATION OF HIS CONFRONTATION AND DUE PROCESS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS. (partially raised below)
POINT THREE THE TRIAL COURT'S FINDINGS OF AGGRAVATING FACTORS THREE AND NINE CONSTITUTED JUDICIAL FACT FINDING BEYOND PROOF OF [DEFENDANT'S] PRIOR CONVICTION THUS IMPERMISSIBLY INVADING THE PROVINCE OF THE JURY UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The State's first witness, police officer Richard Schubert, testified that on September 26, 2003, shortly after 9:00 p.m., he, along with fellow officers Ray Reilly and Carlo Caparuvva, was in an unmarked police car in the vicinity of 307 Elizabeth Avenue, in Elizabeth. Schubert observed defendant, a man of "considerable stature," and five or six other individuals standing in front of a Chinese restaurant at that location. He saw a car stop near the group, and a man, later identified as Tomas Gonzalez, exited the vehicle and walked with defendant down an alleyway next to the restaurant.
Although Schubert's car was parked some distance away, he testified that he was able to see Gonzalez hand defendant some money and defendant hand Gonzalez an "unknown object." Gonzalez returned to his car, and, as he drove away, Schubert and his fellow officers followed in their car. Gonzalez made a left turn down an driveway that ran between Elizabeth Avenue and neighboring First Avenue a short distance from the restaurant, and the officers "activated [their] flashing lights," and possibly the "air horn siren," before they stopped Gonzalez's car.
In order to follow Gonzalez, the police car moved directly past the Chinese restaurant where defendant stood before the alleyway transaction with Gonzalez, and where he had returned afterwards, though Schubert did not recall seeing defendant as they pursued Gonzalez's vehicle. Eventually, Gonzalez was searched and arrested when the officers found a "plastic bag of cocaine in his pocket."*fn1
Schubert testified that he, along with other officers, crossed Elizabeth Avenue to return to number 307, but defendant was no longer standing on the sidewalk in front. With the permission of defendant's mother, who lived there, the officers entered an apartment above the restaurant. They eventually located defendant in "the attic apartment lying on a bed fully clothed with  a blanket pulled over him . . . . [H]e was  out of breath breathing heavy." No drugs or money were found on defendant, in the apartment at 307 Elizabeth Avenue, or in the alleyway next to the restaurant.
Caparuvva's testimony corroborated much of Schulman's, however, he also testified that after the officers had stopped Gonzalez's car, he retreated back up the driveway toward Elizabeth Avenue to "keep on eye on the seller and make sure that he didn't get out of the area." Caparuvva further testified that defendant was walking on Elizabeth Avenue toward the driveway and was "[l]ooking around." Caparuvva was unsure whether defendant saw him or "the lights or the motor vehicle stop," but something "spooked [defendant] and he briskly turned around and started walking fast up the street back towards the Chinese" restaurant.
Caparuvva visually followed defendant who walked down the alleyway were the transaction with Gonzalez had occurred. Caparuvva crossed the street and followed the same path, and observed in the back yard of the building an open door to the rear entrance of the apartment above the Chinese restaurant. Caparuvva surmised defendant had entered through the rear entrance and radioed for back-up support. Eventually, he entered the premises with other officers and located defendant in the condition to which Schubert had testified. The State rested after Caparuvva's testimony.
Defendant's sole witness was Thomas Monarque, a defense investigator who testified as to certain measurements he made around the 307 Elizabeth Avenue area. After summations and charge, the jury eventually returned a verdict of guilty on the single count that was submitted to them.
At the charge conference, the State requested that the judge charge flight. Defense counsel objected, noting
[T]he only problem I have, the flight charge is generally intended if you find that the defendant, fearing that an accusation or arrest would be made against him took refuge in flight for purposes of evading the accusation or arrest. There was no testimony . . . that they were even going after [defendant]. Therefore, I don't think that flight is appropriate here.
Although he reserved decision at that moment, the judge eventually decided that the charge was appropriate and read the Model Criminal Jury Charge on flight to the jury. Defendant now argues that decision was reversible error because "there was insufficient evidence to infer that defendant left the scene to avoid apprehension and thus demonstrated consciousness of guilt." We disagree.
"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). However, a defendant's mere departure from the scene of a crime is distinguishable from "flight."
For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt. [State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966).]
The Supreme Court, expressly referencing our model jury charge on the issue, recently said, "[E]vidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension," State v. Ingram, 196 N.J. 23, 46 (2008), further noting "departure to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47. Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).
Here, Caparuvva's testimony, if believed, was sufficient to establish that defendant's departure from the sidewalk outside 307 Elizabeth Avenue was "flight," i.e., departure made "with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Sullivan, supra, 43 N.J. at 238-39. Immediately after he engaged in a hand-to-hand transaction with defendant, the police stopped Gonzalez's car; in doing so, they activated the lights on their unmarked police car and possibly used the car's air horn; defendant walked to an area of the street where he could see the motor vehicle stop; when he either saw the stop, or Caparuvva, he quickly reversed direction and walked "briskly" the other way; he entered his mother's home through a backyard entrance and he hid under a blanket, fully-clothed, until found by the police. Under the totality of these circumstances, we conclude the evidence was sufficient for the jury to infer defendant's departure was motivated by a consciousness of guilt, and the flight charge was appropriate.
Defendant failed to timely appear for the start of the second day of trial testimony. As Caparuvva was about to testify, the judge indicated that defendant had been given his "Hudson[/]Hall*fn2 " warnings, and that he was going to start the trial without him. Defense counsel objected, noting she had called her client at 9:30 a.m., while the court was awaiting Caparuvva's arrival, and that her "client indicated that he was on his way down Elizabeth Avenue . . . and that he would be here in about [five], [ten] minutes." The judge responded, "Well, we did wait the [five] or [ten] minutes . . . . Bring the jury in." The judge told the jurors, "[T]he defendant has been delayed. He's in the middle of traffic on his way. We're going to continue without him at this point . . . . [D]on't be surprised when he comes in and sits down." Caparuvva began his testimony, and while the record is unclear as to exactly when defendant did in fact arrive in court, shortly into his testimony, Caparuvva was asked to identify defendant in court for the jury, and he did so.
On appeal, defendant contends he was denied his constitutional right "to confront the witnesses against him when [the judge] began the second day of the trial in his absence." It is the State's contention that defendant, whose trial had commenced in his presence the day before, and who had also received "actual notice" from the judge, had waived his right to be present.*fn3
Rule 3:16(b) provides in pertinent part
The defendant shall be present at every stage of the trial . . . . Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found . . . from . . . 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, or (2) trial has commenced in defendant's presence.
We have long recognized "the discretionary power of the court to order continuance of a trial despite defendant's voluntary absence where he was present at the commencement thereof." State v. Lynch, 177 N.J. Super. 107, 111 (App. Div.), certif. denied, 87 N.J. 347 (1981). Under such circumstances, the State need not prove defendant's absence was voluntary. Id. at 113.
We liken the facts of this case to those presented in State v. Hammond, 231 N.J. Super. 535 (App. Div.), certif. denied, 117 N.J. 636 (1989). There, after defendant failed to appear for the final day of trial, defense counsel requested that the judge not begin until 9:30 a.m. Id. at 538. The judge consented to delay until 9:25 a.m., began his charge to the jury at 9:30 a.m. despite the defendant's absence, and told the jury "we understand that [defendant] did tell somebody that he was catching a bus from where he resides . . . and he's been here every morning on time, but he's not here, so we'll have to start whether he comes or not." Id. at 539. In fact, the defendant had arrived shortly after the judge commenced the charge, but had mistakenly been barred from the courtroom by a sheriff's officer who believed no one should be admitted during the charge. Id. at 539-40. The defendant was permitted to enter before the jury retired, and told the judge he "had to catch a bus." Id. at 540. We concluded that under the circumstances, the "defendant precipitated his own absence," id. at 542, and that "[t]he trial judge . . . made reasonable efforts to ensure [the] defendant's presence." Id. at 543.
So too here, defendant's failure to appear at 9:00 a.m. was both "voluntary and unjustified" in that he was fully aware of his need to be in court at that time, had been there punctually for the prior day of trial, and was presumably aware of the traffic in the area and how long it would take for him to travel from his home to the courthouse. Furthermore, to the extent defendant told his attorney he would be there in five or ten minutes, it is clear from the record he was not. Having reasonably attempted to accommodate defendant's tardiness, the judge did not mistakenly exercise his discretion by beginning the trial in his absence.
Defendant concedes that his final argument, directed to the extended-term sentence he received, is completely governed by the Supreme Court's decision in State v. Thomas, 188 N.J. 137 (2006). Defendant argues that case "was wrongly decided" and urges us to vacate his sentence and remand the matter for re-sentencing. We find the contention to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).