February 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CRAIG BYRON A/K/A JOSEPH MARTIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-01-00071 and 06-06-00614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Graves and J. N. Harris.
Defendant appeals from a judgment of conviction following a jury trial finding him guilty of third-degree resisting arrest, N.J.S.A. 2C:29-2(a) and fourth-degree aggravated assault, N.J.S.A. 2C:12-(1)(b)(5). The trial judge merged the two charges, and defendant was sentenced to an aggregate term of three years incarceration.*fn1 Defendant argues that three major errors infected his trial: 1) the "State had not met its burden of proof as to the count of resisting arrest," 2) defendant's "burglary conviction should not have been admitted to impeach . . . credibility, as the conviction was too remote in time," and 3) the Assistant Prosecutor "made improper comments to the jury." After a rigorous review of the record and full consideration of the arguments presented on this appeal, we conclude that defendant's judgment of conviction is incontrovertible. We affirm.
While double-parked on Anna Street in Elizabeth around 10 p.m. on April 4, 2006, defendant encountered Police Officer Rodney Dorilus, who was on a routine street patrol, in a marked police vehicle. As defendant was getting out of a Buick four-door LeSabre to retrieve some documentation, he was instructed by Officer Dorilus to get back inside the car and then was ordered to put his hands on the front hood of the police vehicle. According to Officer Dorilus, defendant "seemed to be acting kind of nervous, just like his body movement, pacing back and forth a little bit." He further described defendant's nervousness as "just eyes, body movements like twitching around. Just looked nervous like."
After initially complying with the officer's request by placing his hands on the car, defendant's next actions were described by Officer Dorilus as follows:
He put his hands on the vehicle. I said sir, you're not under arrest. I'm just patting you down for my safety. I began to pat him down. Then he removed his hands. I said please leave your hands on the car. I'm patting you down for weapons. Then he removed his hands again. At this time I said okay, sir, you're not complying with what I'm asking you to do. I'm going to handcuff you. You're not under arrest. I'm handcuffing you for my safety. You're not complying with what I'm telling you to do. When I told him to put his hands behind his back he didn't. He turned around, faced me, kind of like nudged me a little bit, and then for no apparent reason he reached for the butt of my handgun. [(Emphasis added.)]
After the State rested, and defendant's motion for acquittal was denied, he testified on his own behalf to a version of the events that was not markedly dissimilar:
Q: And did you put - - where did he tell you to put your hands on the car?
A: At that time it was on the front hood of the car.
Q: What happened next?
A: I put my hands on the car. And then he said put your hands behind your back and I asked him for what.
Q: And what happened.
A: He never answered.
Q: Did you argue back and forth with him or what?
A: No, I attempted to flee.
THE COURT: Say that again you attempted - -
A: I attempted to flee. I tried to run.
A: Because I knew I had warrants.
Defendant and Officer Dorilus then engaged in a tussle, with fisticuffs, kicking, flailing, squirming, and generalized struggling. The battle moved from the street and onto the nearby sidewalk. At one point, Officer Dorilus said, "you're not under arrest, stop resisting arrest." The scuffle eventually ended after Officer Dorilus "finally put my weight on top of him and he couldn't go anywhere and then I was able to get onto the radio and call for a car. When I called for a car and he heard like sirens coming, he immediately stopped."
After subduing defendant, Officer Dorilus placed him under arrest. During the course of determining and confirming defendant's identity, Officer Dorilus learned that "Mr. Byron had I believe like seven warrants, outstanding warrants for his arrest."
Defendant contends that the trial judge erred in denying his motion for a judgment of acquittal on the resisting arrest charge because the State allegedly failed to prove that defendant knew he was being arrested. Defendant points to, and relies upon, Officer Dorilus's multiple admonitions that he was not under arrest to support his claim that the State failed to prove every essential element of the crime of resisting arrest beyond a reasonable doubt. We, however, reject this argument and concur with the trial court's assessment of the State's proofs in denying the motion:
As to the resisting arrest, the defense even in its own questioning of the witness indicated that after he was then going to be arrested the defendant struggled by kicking and struggling and it was quite an event and that goes both to the resisting arrest and also to the aggravated assault. I believe the police officer indicated that he did have some physical discomfort. That's one of the issues that I have some concern about as to the aggravated assault as whether the officer had to define the bodily injury meaning physical pain, illness, impairment of his physical condition. Exactly what he said I don't have that reflected in my notes, but I do note they were struggling and this kicking and this struggling went on for quite awhile until the defendant found out that there was backup coming to the scene he was putting up quite a fight. So based upon that the court finds there's a factual basis for all three counts. [The] [m]otion is denied.
In considering a motion for judgment of acquittal pursuant to Rule 3:18, a trial judge must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). "This test governs not only the trial judge's consideration of the motion, but also appellate review of his ruling." State v. Moffa, 42 N.J. 258, 263 (1964).
N.J.S.A. 2C:29-2(a) renders it unlawful if a person "by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). Resisting arrest requires purposeful conduct by a defendant to prevent the arrest. State v. Ambroselli, 356 N.J. Super. 377, 384-85 (App. Div. 2003) (observing that the State must prove beyond a reasonable doubt that it was the defendant's conscious object to prevent his or her own arrest); State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998).
We recognize that there is something to be said for defendant's point of view that, at least in the early stages of his encounter with Officer Dorilus--when defendant was repeatedly told that he was not being arrested--a finding of purposeful conduct would be attenuated. However, as the mêlée escalated, and the physical battle persisted, defendant's arrest was plainly inevitable; a reasonable jury could rationally infer that defendant's purpose long into the skirmish was to avoid that end result. As such, the motion for acquittal at the conclusion of the State's case was properly denied.
The Sands/Brunson*fn2 paradigm is followed by this State's courts to determine whether criminal convictions of a testifying defendant are admissible to impeach his or her credibility. Defendant argues that the trial judge abused his discretion by permitting the State to impeach credibility with evidence of a third-degree burglary*fn3 conviction from 1995. He maintains that this conviction should have been excluded from the jury's consideration based upon its remoteness in time to the current charges.
We review a trial judge's decision to admit evidence of a defendant's prior convictions for an abuse of discretion. Sands, supra, 76 N.J. at 144. A judge's discretion on this issue is "broad," and "the burden of proof to justify exclusion [of such evidence] rests on the defendant." Ibid. "The key to exclusion is remoteness, [but] [r]emoteness cannot ordinarily be determined by the passage of time alone." Ibid. The more serious the crimes for which a defendant was convicted, the less problematic a lapse of time will become. Ibid.
Similarly, when a defendant has sustained a number of intervening prior convictions, a conviction that might otherwise be considered remote will no longer be so viewed. Id. at 145. As the Court held, "[w]hen a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence." Ibid. Thus, if a defendant "has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Ibid.
Defendant's burglary conviction was just over ten years old at the time of trial. However, between that conviction and the date of trial, defendant had been also convicted of one disorderly persons simple assault*fn4 and multiple disorderly persons charges for possession of drug paraphernalia.*fn5 The trial judge held:
We have here a situation whereby the conviction is [ten] and a half years old. The fact that the defendant has one prior assault conviction, disorderly person[s] and [eleven] prior paraphernalia convictions are intervening causes which push the envelope back. Had he had no intervening convictions since or any events since October 27th, 1995[,] the court still might have even permitted it since it's only [ten] and a half years old. But, however, with those [twelve] other municipal court offenses the court will permit the conviction to be brought to the jury's attention.
We discern no abuse of discretion in the trial court's conclusion, which was soundly based upon the totality of the circumstances given the defendant's extensive and almost unbroken skein of charges. Consequently, defendant's claim that the 1995 conviction was too remote, and violated the principles of Sands, is meritless.
Defendant also claims that he was deprived of a fair trial because the prosecutor engaged in misconduct by adversely commenting on defendant's supposed motive in resisting arrest of not "want[ing] to have to go back to state prison." This, according to defendant, was an impermissible use of defendant's prior conviction for a purpose beyond the acceptable credibility assessment by highlighting the conviction as the reason why defendant acted the way that he did on the night in question. Additionally, defendant criticizes a prosecutor's comment during summation that allegedly made a fear-mongering reference:
The defendant on the night in question is not the defendant you see here. The defendant you see here is well mannered, is well dressed.
He spoke to you. But think about the way the officer testified he was behaving. Back and forth, not complying with orders. The officer ordered him to get in the car. He got out of the car. He ordered him to get in the car again. Then the defendant came over to the car. He was nervous acting fidgety. He wouldn't comply when told to put his hand on the hood of the car. So he was a different person on the night in question than you see today.
Prosecutors occupy a unique position in the criminal justice system; their role is not to obtain convictions, but to see that justice is done. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); see State v. Spano, 64 N.J. 566, 568 (1974) (noting that prosecutors' actions and comments carry the full weight and authority of the State). They must refrain from employing improper methods calculated to produce wrongful convictions. State v. Frost, 158 N.J. 76, 83 (1999). Accordingly, in summation, prosecutors are "generally limited" to commenting on the evidence presented and what inferences may be drawn from that evidence; additionally, their legal and factual assertions must be accurate. State v. Smith, 167 N.J. 158, 182 (2001); Frost, supra, 158 N.J. at 85; Zola, supra, 112 N.J. at 426.
It is well established that a prosecutor is "permitted considerable latitude to make forceful, vigorous arguments" to a jury. State v. Nelson, 173 N.J. 417, 472 (2002) (citing State v. Chew, 150 N.J. 30, 84 (1997)). They are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented.
Frost, supra, 158 N.J. at 82. Furthermore, a prosecutor is also permitted to respond to arguments raised by the defense as long as the response does not constitute a foray beyond the evidence adduced at trial. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001).
The prosecutor's arguably disparaging remarks were fleeting, and did not exceed the bounds of permissible advocacy to a degree that raises any doubt in our minds as to the fairness of defendant's trial. See State v. Josephs, 174 N.J. 44, 120, 124-25 (2002); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. Pennington, 119 N.J. 547, 577 (1990). Even if the prosecutor's remarks could be considered improper, a conviction will not be reversed on this basis alone, unless the remarks were "'so egregious as to work a deprivation of a defendant's right to a fair trial.'" Nelson, supra, 173 N.J. at 472 (citing Pennington, supra, 119 N.J. at 566).
We are satisfied that the prosecutor's references on cross-examination to defendant's incarceration did not stray beyond reasonable advocacy. Nor do we find any fault with the prosecutor's summation commentary that highlighted defendant's interaction with the police and the events that followed, even if that commentary asked the jury to compare the demeanor of defendant in court with the person described to them during the testimony of Officer Dorilus. These comments had no reasonable capacity to engender generalized fear in the minds of jurors; rather, it was simply an argument that invited the jury to focus upon the different versions of the evidence and use its common sense to reach a just and proper verdict.
Under all of the circumstances, defendant's allegations of due process violations are unavailing. He was not unduly prejudiced as to deny him of a fair and impartial trial. The judgment of conviction is affirmed.