On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 03-07-1389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Defendant Earl Sanders appeals from his conviction, following a jury trial, of third-degree theft of movable property, N.J.S.A. 2C:20-3(a), Count One; second-degree eluding, N.J.S.A. 2C:29-2(b), Counts Two and Three; simple assault, N.J.S.A. 2C:12-1(b)(5)(a), Counts Five and Six; and resisting arrest, 2C:29-2(a), Count Seven.*fn1 The State moved for imposition of a mandatory term pursuant to N.J.S.A. 2C:44-3(a) and/or 3(f). The court granted the State's motion and sentenced defendant to an aggregate twenty-year custodial term, with an eight-year period of parole ineligibility. We affirm.
Defendant raises the following points on appeal for our consideration:
POINT I A COURSE OF MISCONDUCT BY THE PROSECUTOR, DURING CROSS[-]EXAMINATION OF THE DEFENDANT, DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10 (Partially Raised Below).
A. During Cross-Examination, The Prosecutor Challenged Mr. Sanders To Characterize The Veracity Of Officer Blake's Testimony.
B. The Prosecutor Made Improper Use [O]f Mr. Sanders' Prior Convictions.
C. The Prosecutor Led the Jury [T]o Believe That He Had Evidence of Mr. Sanders' Dishonesty That Was Outside [T]he Record.
THE JURY INSTRUCTIONS ON DIMINISHED CAPACITY AND INTOXICATION WERE FATALLY FLAWED. (Not Raised Below).
A. The Diminished Capacity Instruction Was Inadequate.
B. Defense Counsel's Request [T]o Charge Intoxication Should Have Been Denied. (Not Raised Below).
POINT III IT WAS ERROR NOT TO CHARGE JOYRIDING AS A LESSER[-]INCLUDED OFFENSE. (Not Raised Below).
POINT IV THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES.
Defendant filed a pro se supplemental brief raising the following points for our consideration:
POINT ONE THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY TERMINATING DEFENDANT'S RIGHT TO SELF-REPRESENTATION, THEREBY DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND[.] [VI] AND [XIV], AND N.J. CONST. ART. 1, PAR. 10. POINT TWO DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING BOTH PRETRIAL AND TRIAL PROCEEDINGS[,] THEREBY DENYING DEFENDANT THE RIGHT TO A FAIR TRIAL, AND RESULTED IN A MANIFEST DENIAL OF JUSTICE. U.S. CONST. AMEND[.] [VI] AND [XIV,] AND N.J. CONST. ART. 1 PAR. 10. (Raised Below).
A. PRETRIAL ERRORS AND CONFLICT OF INTEREST. (Raised Below).
B. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL. (Raised Below).
According to the evidence presented at trial, the underlying incident that led to defendant's prosecution and conviction occurred on March 8, 2003, when he placed a 9-1-1 call to report that his family was dead and there were imposters posing as his family in his house. The following day, March 9, an officer picked defendant up on a street curb and defendant was admitted to the Crisis Center (Center) of Jersey Shore Medical Center at 2:55 a.m. The hospital record revealed that he was wild and agitated and was hallucinating for a number of hours after his admission. He remained hospitalized for observation and was discharged the next day around 8:15 a.m.
As defendant was leaving the hospital grounds, he entered a medical transportation vehicle that was parked nearby with its engine running, and proceeded to drive away. The vehicle was reported stolen approximately fifteen minutes later. Asbury Park Patrolman Dennis Blake spotted the vehicle an hour later and attempted to pull it over. Defendant testified that when he saw the police vehicle with its overhead lights activated signaling him to pull over, he became scared and took off with the intent to "drive up Asbury Park Avenue and go directly to the police station but due to the traffic it wasn't allowed[.] I couldn't do it." Defendant was able to speed away from Blake and other police vehicles that had joined the pursuit and, in doing so, ran two stop signs, five red lights, drove in the direction of approaching traffic, causing those motorists to veer away in an effort to avoid a collision, drove onto a resident's front lawn, and struck two civilian vehicles. Defendant eventually entered onto Route 35 where he continued to lead police on a chase. While on Route 35, he rammed a police car.
Police were eventually able to block the vehicle defendant was driving, but this was only after defendant drove his vehicle in the direction of Neptune Township Detective Brian Fromhold, who had exited his car and approached defendant. Fromhold discharged his weapon after defendant failed to heed his yell to defendant to stop the vehicle. When other officers enclosed the vehicle, causing its tires to become lodged against a tree, the vehicle remained stationary. It took six officers to remove defendant from the vehicle, as defendant resisted their efforts. He was subdued and placed under arrest.
Defendant contends that when the prosecutor asked him to explain the contradiction between his testimony that he was driving the vehicle towards the police station and Officer Blake's testimony that he, at one point in the pursuit, drove away from the police station, the State was improperly requesting that he characterize Officer Blake's testimony. Additionally, defendant urges that the State improperly inquired into plea negotiations in connection with unrelated charges that were still pending against him at the time of trial and the potential sentence he could receive on those charges as a motive for his flight. Finally, defendant contends that when he repeatedly expressed his understanding that the plea negotiations on the unrelated charges did not involve imposition of a custodial term, he negated the State's theory that his flight was motivated out of fear of incarceration. The prosecutor, however, through rhetorical questioning and direct statements to him, suggested that he personally knew defendant was being untruthful about the plea negotiations. These direct statements from the prosecutor to defendant relating to the plea negotiations included: "You know that is not true. You were going to State Prison. . . . Three years New Jersey State Prison. . . . That wasn't something I said, sir? . . . Did I ever say that, sir? Did you hear those words from my mouth?"
We first address the issue of the prosecutor's statements. A "prosecutor's duty is twofold: a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Smith, 167 N.J. 158, 177 (2001) (citing State v. Ramseur, 106 N.J. 123, 320 (1987)). In deciding whether there has been prosecutorial misconduct, a court must perform a two-prong test to determine "whether the prosecutor committed misconduct, and, if so, 'whether the prosecutor's conduct constitutes grounds for a new trial.'" State v. Wakefield, 190 N.J. 397, 446 (2007), cert. denied, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008) (quoting Smith, supra, 167 N.J. at 181).
A court will not reverse on grounds of prosecutorial misconduct absent evidence of "'misconduct [that] was so egregious that it deprived the defendant of a fair trial.'" State v. Koskovich, 168 N.J. 448, 488 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Prosecutorial misconduct warrants reversal only if the appellate court finds that the misconduct was "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001) (internal quotation marks omitted)).
A. Prosecutor's Questions Related to Officer Blake's Testimony We initially observe that there was no objection to the prosecutor's questions to defendant related to Blake's testimony. Thus, we review defendant's claimed error under the plain error standard of review, namely, if there was error in this line of questioning, was it "of ...