December 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NORMAN ADAMS, A/K/A TONY ADAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 05-03-0484, 03-02-0289, and 02-08-1914.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Rodríguez, Waugh and Newman.
Defendant Norman Adams appeals his conviction of third-degree eluding arrest, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a); and the resulting sentence of an aggregate ten-year imprisonment term with four years of parole ineligibility. We reject defendant's arguments on appeal challenging his conviction. However, we remand to the trial court for resentencing consistent with the opinion set forth below and vacate a portion of the May 26, 2006, judgment of conviction.
On December 26, 2004, at around 3:45 in the afternoon, Englewood Police Officers Joseph Doyle and Jamie Gilert were conducting an unrelated traffic stop on West Palisade Avenue near the intersection of James Street in Englewood. Doyle observed defendant Adams walking down the street. Doyle recognized Adams. He knew that there was an outstanding warrant for Adams in Englewood and that his driver's license was suspended. Doyle discussed the situation with Gilert. At that point, both officers returned to their separate patrol cars. Gilert then radioed Doyle that Adams had entered a silver Oldsmobile and was driving down West Palisade Avenue.
Doyle and Gilert, in tandem, followed Adams on West Palisade Avenue and onto Lafayette Avenue without turning on either their lights or sirens. Doyle testified that, after Adams had turned onto Rosemont Avenue, both he and Gilert turned on their lights and, subsequently, their sirens. Eventually, Adams pulled into the driveway of his Summit Avenue residence in Teaneck. Doyle used his patrol car to block Adams's vehicle in the driveway. At trial, two defense witnesses testified that when Doyle and Gilert arrived at Adams's house, neither the lights nor the sirens of the patrol cars were on.
Doyle got out his vehicle and yelled to Adams that "he was under arrest" and "to get on the ground." Doyle testified that Adams did not respond to his request but walked towards him and Gilert with both hands in the pockets of his sweatshirt. Doyle, in response to seeing something black in Adams's left hand, drew his gun; Gilert did the same. The object was ultimately determined to be a cell phone.
Adams removed his hands from his pockets but continued to walk towards Doyle. Doyle holstered his gun and produced his baton. Doyle testified that at this point, Adams attempted to punch him, but missed. Doyle then struck Adams twice with his baton. A scuffle ensued between Doyle and Adams. During the scuffle, Gilert controlled the crowd that had formed to watch the events. After the arrival of additional police units, Adams was subdued.
On March 14, 2005, Adams was indicted on three counts: (1) second-degree eluding arrest, N.J.S.A. 2C:29-2(b); (2) third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); and (3) third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5).
A jury found Adams guilty of third-degree eluding arrest, a lesser included offense under count one, and third-degree resisting arrest under count two. The jury acquitted Adams of the aggravated assault charge in count three. After granting the State's motion for an extended term, the trial judge sentenced Adams to concurrent seven-year sentences with three years of parole ineligibility for each count.
At the time of his sentencing, Adams pled guilty to violating his prior probationary status on indictment number 03-02-00289-I. The probation officer recommended any sentence imposed for the violation run concurrently with the already imposed seven-year sentences, but he did not object to the State seeking an additional sentence. The trial judge sentenced Adams to an additional three-year term of imprisonment with one year of parole ineligibility to run consecutive to the two seven-year terms. In the aggregate, Adams was sentenced to ten years of imprisonment with four years of parole ineligibility.
Adams raises the following points on appeal:
POINT ONE THE TRIAL COURT IMPROPERLY BOLSTERED THE STATE'S CASE BY TELLING A JUROR THAT POLICE OFFICERS DO NOT FREQUENTLY LIE.
POINT TWO THE TRIAL COURT VIOLATED MR. ADAMS'S RIGHT TO DUE PROCESS BY INSTRUCTING THE JURY THAT THE STATE HAD PROVEN AN ELEMENT OF THE CRIME OF ELUDING. (Not Raised Below).
POINT THREE THE PROSECUTOR MINIMIZED THE JURY'S DUTY BY DIMINISHING THE IMPORTANCE OF THE ELEMENTS OF THE CRIME OF ELUDING.
POINT FOUR THE PROSECUTOR IMPROPERLY COMMENTED ON MR. ADAMS'S RIGHT TO REMAIN SILENT.
POINT FIVE PROSECUTORIAL MISCONDUCT DEPRIVED MR. ADAMS OF A FAIR TRIAL.
A. THE PROSECUTOR MADE INFLAMMATORY STATEMENTS APPEALING TO THE EMOTIONS OF THE JURY, AND DEPRIVING MR. ADAMS OF A FAIR TRIAL.
B. THE STATE'S REFERENCES, DURING OPENING AND CLOSING ARGUMENTS, TO THE ACTIONS OF THE GRAND JURY DEPRIVED MR. ADAMS OF A FAIR TRIAL. (Not Raised Below).
C. THE PROSECUTOR'S IMPERMISSIBLE INSERTION OF PRIOR BAD ACT EVIDENCE DEPRIVED MR. ADAMS OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT SIX NUMEROUS TRIAL COURT ERRORS DEPRIVED MR. ADAMS OF A FAIR TRIAL.
A. THE TRIAL COURT FAILED TO CONDUCT VIOR DIRE AT A SIDE BAR, THUS TAINTING THE JURY POOL WHEN A POTENTIAL JUROR BOLSTERED THE STATE'S WITNESS.
B. THE TRIAL COURT ERRED BY TELLING THE JURY POOL OF MR. ADAMS'S ALIAS. (Not Raised Below).
C. THE TRIAL COURT FAILED TO GIVE A LIMITING INSTRUCTION WHEN THE STATE FIRST INTRODUCED MR. ADAMS'S PRIOR BAD ACTS, THEREBY DEPRIVING MR. ADAMS OF A FAIR TRIAL. (Not Raised Below).
POINT SEVEN THE STATE'S MAIN WITNESS TOLD THE JURY THAT MR. ADAMS WAS GUILTY, THEREBY DEPRIVING MR. ADAMS OF HIS RIGHT TO A TRIAL BY JURY. (Not Raised Below).
POINT EIGHT THE CUMULATIVE NATURE OF THE TRIAL COURT AND STATE'S ERRORS DEPRIVED MR. ADAMS OF A FAIR TRIAL.
POINT NINE MR. ADAMS'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006).
POINT TEN MR. ADAMS'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT ILLEGALLY IMPOSED TWO DISCRETIONARY EXTENDED TERMS.
POINT ELEVEN THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 104 (1986).
POINT TWELVE THE TRIAL COURT ILLEGALLY SENTENCED MR. ADAMS UNDER INDICTMENT NUMBER 02-08-1914 ON MAY 26, 2006.
With respect to Adams's points two through seven, supra, we find them to be without merit and not warranting discussion in a written opinion on appeal. Rule 2:11-3(e)(2).
We do address the issue raised by Adams in point one, supra. Adams argues that the trial court improperly bolstered the testimony of the police officers. Adams takes issue with the following exchange that occurred at the sidebar voir dire of a juror who was seated at his trial:
[DEFENSE COUNSEL]: Would you tend to believe a police officer's testimony over a, someone else's testimony just because he's a police officer?
JUROR NUMBER ELEVEN: Probably
THE COURT: Let me explore that. Now, I instructed that you consider all the circumstances. One of the circumstances is that he or she is a police officer. You would take that into account. Even letters let's say.
JUROR NUMBER ELEVEN: I'd have to really listen to what the case was. Yes.
THE COURT: In other words, would you be able to decide, and maybe the police officer was mistaken? Can you accept that police officers are mistaken at times?
JUROR NUMBER ELEVEN: Yes.
THE COURT: Can you accept that police officers sometimes lie?
JUROR NUMBER ELEVEN: Yes. I guess.
THE COURT: Fortunately not frequently. You can accept that?
JUROR NUMBER ELEVEN: Yes.
THE COURT: So, would you accept the testimony of a police officer because he or she is a police officer or would you weigh all the factors, and some of which I will instruct you should be considered by you and your fellow jurors? Would you be able to do that?
JUROR NUMBER ELEVEN: Probably.
THE COURT: Well, could you do your very best?
JUROR NUMBER ELEVEN: Yes.
THE COURT: I don't think we can ask any person for more than that.
Following the exchange, defense counsel objected to the trial judge's statement that police officers do not "frequently" lie. However, defense counsel did not use a preemptory challenge against this juror.
In reviewing the potentially prejudicial statements of the trial judge, we must consider the transcript of the proceedings as a whole. State v. Zwillman, 112 N.J. Super. 6, 20 (1970).
The basic test is whether the error thus viewed excites a reasonable apprehension that prejudice resulted to the defendant. And where the ultimate issue is life and liberty, we cannot wash the record in cynical acid before making our evaluation. Nor are we authorized to look at the proof, "resolve conflicting evidence, and reach the conclusion that the error was harmless because we think the defendant was guilty."
[State v. Wolak, 26 N.J. 464, 481 (1958) (internal citation omitted) (quoting State v. Orecchio, 16 N.J. 125, 130 (1954)).]
In reviewing the record as a whole, we find that the trial judge's statement, while unfortunate, did not prejudice the defendant. The juror acknowledged during the above exchange that it was conceivable a police officer would lie or be mistaken about the facts. The juror also answered affirmatively when asked if she would do her "very best" to listen to all of the evidence and testimony presented at trial.
The resulting verdict illustrates that the jury did in fact listen to all the testimony and consider all the evidence presented. In their acquittal of Adams for aggravated assault on a police officer, count three, the jury necessarily believed testimony other than that of Doyle who stated that Adams "lunged toward" him and "tried to throw [a] punch." Additionally, the jury found Adams guilty not of second-degree eluding arrest, but of the lesser included offense of third-degree eluding arrest, N.J.S.A. 2C:29-2(b).*fn1 Clearly, the jury did not simply defer to the testimony of the police officer.
The ultimate disposition by the jury illustrates that the Adams was not prejudiced by the statements made by the trial judge. In reaching their decision, the jury necessarily weighed all the evidence and testimony presented, without giving absolute credence to the testimony of the police officers. We, therefore, affirm Adams's conviction.
We turn to the aggregate ten-year custodial term with four years of parole ineligibility imposed on Adams. In addressing Adams's points nine through twelve, supra, we find, and the State concedes as much, that the case must be remanded for resentencing.
Shortly after Adams was sentenced, the Supreme Court decided State v. Pierce, 188 N.J. 155 (2006). In Pierce, the Court expanded the range of permissible sentencing for defendants found to be statutorily eligible for an extended term under N.J.S.A. 2C:44-3(a). The Court stated:
[T]he range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. By recognizing that the top of the extended-term range is the "top" applicable to a persistent offender, we do not make mandatory a defendant's sentencing within the enhanced range. Rather, we merely acknowledge that the permissible range has expanded so that it reaches from the bottom of the original-term range to the top of the extended-term range. [Pierce, supra, 188 N.J. at 169.]
Prior to Pierce, the permissible sentencing range for a conviction of a third-degree crime with an extended term was five to ten years. N.J.S.A. 2C:43-7(a)(4). On remand, the trial judge must consider the now extended permissible sentencing range of three to ten years. See N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:43-7(a)(4).
In addition to remanding in light of Pierce, we also remand for resentencing because the trial judge improperly imposed two extended sentences, one for each count of conviction, when only one is permissible. State v. Papasavvas, 163 N.J. 565, 627 (2000) ("[A] court may impose only one extended term on one sentencing occasion."). As previously noted, the normal sentencing term for a conviction of a third-degree offense is three to five years. N.J.S.A. 2C:43-6(a)(3). However, the trial judge sentenced Adams to two extended terms of seven years when, at most, Adams could have received the extended term for one count of his conviction and a maximum of five years for the second count of conviction.
We also find it necessary to remand the case to provide the trial judge the opportunity to re-examine and, if choosing to impose a consecutive sentence for Adams's parole violation, to fully explain the reasoning for doing so. The trial judge, when issuing the consecutive sentence, stated,
I don't think Mr. Adams is a bad guy, or particularly dangerous guy, but nevertheless, he caused a ruckus and two officers had to actually draw their side arms. Again, it was a dangerous situation, and some of the neighbors and family misapprehended what was going on, and could have caused some really, really egregious consequences.
I find that under Yarborough,*fn2 it is appropriate to adjudge a sentence which is consecutive . . . .
We find, and the State concedes, that the trial judge did not adequately detail on the record his reasoning for imposing consecutive sentences as required by State v. Yarborough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
Finally, we vacate the May 26, 2006, judgment of conviction for violation of probation for indictment number 02-08-1914-I. It is not clear from the record how that part of the judgment came to be entered in the first place. The State concedes, and the record before us clearly reflects, that while Adams was initially sentenced to parole for that offense, his parole was revoked as "unsuccessful." Upon the revocation of his parole, Adams was sentenced to 364 days in jail, a sentence which he served. Therefore, Adams could not have violated his parole for indictment number 02-08-1914-I because he was not on parole for that indictment.
In conclusion, we affirm the conviction of Adams for third-degree eluding arrest, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). We remand the case for resentencing: (1) for reconsideration in light of the Supreme Court's decision in State v. Pierce; (2) because of the limitation that only one extended term can be applied at any one sentencing; and (3) because the trial judge failed to adequately state his reasoning for imposing consecutive, as opposed to concurrent, sentences. Finally, we vacate the portion of the May 26, 2006, judgment of conviction that erroneously refers to indictment number 02-08-1914-I.
Affirmed in part, remanded in part, and vacated in part.