May 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRANCE WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-02-0197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Fuentes and Simonelli.
Following the denial of his motion to suppress, a jury convicted defendant Terrance Williams of third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a handgun without first obtaining a permit to carry it, N.J.S.A. 2C:39-59b (count six); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a (count ten). The jury acquitted defendant of possession of a certain weapon (handgun) with purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a (count five); and second-degree eluding police, N.J.S.A. 2C:29-2b (count eleven).*fn1 Defendant subsequently entered an unconditional guilty plea to count nine in exchange for the State's agreement to a ten-year term of imprisonment with a five-year period of parole ineligibility concurrent to any sentence imposed on his conviction on the other counts, and to waive extended terms on both sentences.
The trial judge sentenced defendant on count nine to a seven-year term of imprisonment with a five-year period of parole ineligibility; to a concurrent five-year term of imprisonment on counts one and six; and to a concurrent eighteen-month term of imprisonment on count ten. The judge also imposed the appropriate assessments, penalties, and fee, and suspended defendant's driver's license for six months.
We gather the facts from the record developed before the trial court.
At approximately 3:00 a.m. on August 24, 2005, Officers Christopher Monahan and Patrick Sullivan of the Jersey City Police Department, who were in uniform driving in a marked patrol car, saw the driver of a white four-door Buick Regal fail to stop at a stop sign, make a right turn, and almost strike their car. The officers followed the Buick and entered its license plate number into the mobile data terminal. Upon discovering that the Buick was unregistered, Monahan radioed headquarters that he and Sullivan were following it and would attempt to effectuate a stop. The officers requested backup and continued following the Buick with their patrol car's siren and lights activated.
The Buick's driver eventually pulled over. However, as other officers who had arrived at the scene approached it, the driver sped away. Monahan and Sullivan followed the fleeing Buick, which reached speeds of fifty to sixty miles per hour in a residential twenty-five mile per hour zone, failed to stop at several stop signs, and almost strike several parked vehicles. The Buick continued to an intersection, where it failed to negotiate a left turn and stopped after hitting a sewer grate at the corner.
The officers stopped behind the Buick and saw the driver and the back seat passenger exit from the driver's side and the other passenger exit from the front passenger side. The individuals ran, leaving the Buick in the intersection with its engine running, doors open and lights on. Monahan assumed that defendant was the driver because defendant was the first individual he saw exit the driver's side. Monahan chased defendant and apprehended him approximately thirty feet from the Buick. Sullivan apprehended the front seat passenger, later identified as co-defendant Kearney Powell, a few feet from the Buick. The officers read both men their Miranda*fn2 rights and placed them in a patrol car. The third individual was never apprehended.
Monahan and Sullivan then went back to the Buick, which was still in the intersection with its engine running, doors open, and lights on, to secure it. Upon approaching the vehicle, they saw a .38 caliber handgun on the front seat and glycine packages rubber-banded together on the passenger-side floor, which had spilled from a McDonald's bag. Based on his training and experience, Monahan recognized the substance inside the glycine bags as heroin. He also discovered that the handgun was fully loaded. The Buick was impounded because it lacked registration and had been used in the commission of a crime, namely, eluding the police.
Defendant filed a motion to suppress the items found in the Buick, contending that the search was unreasonable because the police failed to follow the Attorney General's pursuit guidelines. Except to argue that the officer did not advise a supervisor of the pursuit, defendant did not identify the specific guidelines they allegedly violated. Defendant also contended that the Buick was not abandoned property, and that the handgun and drugs were not in plain view.
Finding the officers' testimony credible, the trial judge denied the motion. The judge found that the Attorney General's pursuit guidelines did not apply, as they "are not for the purpose of protecting defendants' rights, but to protect the citizens of the [S]tate from potential pursuits that could be dangerous." The judge concluded that
[B]oth defendants fled the car, and the officers . . . now . . . have a vehicle running with its headlights on at an intersection with all the doors open, and are directed to secure the vehicle.
And each and every time that the officers testify as to the reason for going back, the first reason they gave was to secure the vehicle, which makes perfect sense . . . you don't leave an abandoned --and a fleeing vehicle after a high-speed chase with the police is clearly abandoning the vehicle -- you don't leave a running vehicle in the city at that hour of the morning without securing it. It's obviously going to have to be moved either by tow or by driving it to put it in another location, shutting the car off and taking the keys out.
Now by the act of walking over to the vehicle, which is something [the officers] had to have done based upon the way the defendants left the vehicle, they could clearly see in plain view a handgun and narcotics paraphernalia and packaging clearly in the front of the car.
Based upon that, those items were in plain view and comport with all New Jersey law, and securing anything in plain view at a place that they had a right to be, doing something they had to do.
Because of some discrepancies in Monahan's testimony at the suppression hearing about the Buick driver's identity, defendant called the officer as a trial witness to cast doubt on whether defendant was the driver. However, Monahan explained that his suppression hearing testimony was mistaken and that he was now certain that Powell was the passenger and defendant was the driver.
Against these facts, defendant raises the following arguments on appeal:
POINT 1 - THE CONVICTION FOR RESISTING ARREST MUST BE VACATED AS IT WAS MERELY A CONTINUATION OF THE "ELUDING" CHARGE FOR WHICH THE DEFENDANT WAS ACQUITTED.
POINT 2 - THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR TRIAL COUNSEL'S CALLING OFFICER MONAHAN THAT RESULTED IN MONAHAN'S REAFFIRMING THE DEFENDANT AS THE DRIVER AND OF BEING APPREHENDED BY MONAHAN IN SUPPORT OF THE RESISTING ARREST CHARGE.
POINT 3 - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS AS THE STATE DID NOT ESTABLISH THE INITIAL REASONABLENESS OF THE OFFICER'S ACTIONS AND "PLAIN VIEW" DID NOT APPLY.
Defendant argues in Point I that his conviction for resisting arrest must be vacated because (1) the resisting arrest charge was a continuation of the eluding charge for which he was acquitted; (2) there was no evidence that Monahan ever yelled "stop, police" or any of its street equivalents; and (3) there was no evidence of any combat between him and Monahan that would constitute "resisting."
Defendant also argues for the first time on appeal that because the resisting arrest charge was predicated on resisting by means of flight, the trial judge erred in failing to charge the jury that they must distinguish "flight" from the Buick associated with the eluding offense from whatever they considered to be flight associated with resisting arrest, and that they must determine when the eluding ceased and flight associated with resisting arrest began. All of defendant's arguments lack merit.
A person is guilty of third-degree eluding if, while operating a motor vehicle, he or she "knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop." N.J.S.A. 2C:29-2b.
A person is guilty of the disorderly persons offense of resisting arrest "if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(1). A person is guilty of fourth-degree resisting arrest "if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(2).
Defendant cites no authority supporting his argument that resisting arrest should be treated as a continuation of the crime of eluding. The statutes, themselves, do not support this argument. Rather, the statutes clearly establish that the crimes of resisting arrest and eluding are separate and distinct and require different elements of proof, which do not overlap. Accordingly, an acquittal for eluding does not demand a similar result for resisting arrest.
Defendant also cites no authority supporting his argument that in order to be convicted of resisting arrest, a police officer must utter specific words that advise a defendant to stop. Nonetheless, we are satisfied that the totality of circumstances establishes that defendant was guilty of fourth-degree resisting arrest. Defendant was involved in a high speed pursuit with the police, who had activated their patrol car lights and siren, signaling defendant to stop. Defendant initially stopped but then fled with the police in pursuit. Defendant then ran from the Buick purposely attempting to prevent his arrest. Such flight, alone, is sufficient to convict him of fourth-degree resisting arrest. Further, unlike a third-degree conviction for resisting arrest, there need be no physical confrontation for a conviction for fourth-degree resisting arrest. Compare N.J.S.A. 2C:29-2a(3)(a) with N.J.S.A. 2C:29-2a(2).
We review defendant's contention about the alleged erroneous jury charge under the plain error standard of review. Plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). In assessing the propriety of the jury charges, we examine the entire charge to see whether it was ambiguous or misleading or misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).
The judge instructed the jury on resisting arrest by flight in accordance with N.J.S.A. 2C:29-2a. The judge then instructed the jury that it must first determine if "defendant committed the basic offense of resisting arrest[,]" and explained the four elements of this offense. The judge next instructed the jury that if the basic offense has been established, they must then determine if defendant "committed the more serious offense of resisting arrest . . . by the act of flight." The judge instructed the jury that "defendant denies flight. Mere departure from a place where a crime has been committed does not constitute flight. The State must prove beyond a reasonable doubt that the defendant, fearing that he would be arrested, fled for the purpose of evading the arrest."
The judge instructed the jury on eluding a police officer in accordance with N.J.S.A. 2C:29-2b. The judge then explained the six elements of this offense and instructed the jury that if they found all six elements were proved beyond a reasonable doubt, they must decide a seventh element, "that the flight or 4891-06T4 attempt to elude created a risk of death or injury to any person."
Having reviewed the charges as a whole, we are satisfied that no error, let alone plain error, occurred. The judge followed the model jury charges for resisting arrest and eluding an officer, see Model Jury Charge (Criminal), "Resisting Arrest-Flight Alleged" (2007); Model Jury Charge (Criminal), "Eluding an Officer [Second and Third Degree]" (2004), and otherwise gave the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." The charges included instructions on all "essential and fundamental issues and those dealing with substantially material points." State v. Green, 86 N.J. 281, 287-88, 290 (1981).
Challenging the denial of his motion to suppress, defendant argues in Point III that Monahan and Sullivan lacked a reasonable articulable suspicion to stop the Buick; that the "plain view" doctrine did not apply because the officers were not legally in a position to "view" the handgun and drugs; that the officers should have obtained a search warrant; and that the officers' conduct was per se unreasonable because they violated the Attorney General's pursuit guidelines.*fn3
Our review of a trial judge's factual determinations is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We give great deference to the trial judge's factual findings on a motion to suppress when supported by adequate, substantial and credible evidence. Ibid. We will reverse only if we are convinced that the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We also give deference to the trial judge's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999). We give no deference to and are not bound by the judge's legal conclusions, which we review de novo. State v. Harris, 181 N.J. 391, 415 (2004). Applying these standards, we conclude that the trial judge properly denied the motion to suppress.
"Consistent with the Fourth Amendment of the United States Constitution and its analog, Article I, paragraph 7 of the New Jersey Constitution, 'a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Golotta, 178 N.J. 205, 212-13 (2003) (quoting Locurto, supra, 157 N.J. at 470). Whether the reasonable articulable suspicion standard has been met is fact-sensitive and depends on the totality of the surrounding circumstances. Id. at 213. This fact sensitive inquiry only "requires some minimal level of objective justification for making the stop." Ibid. (quotation omitted).
Here, prior to the stop, the officers saw the Buick's commit several motor vehicle violations, including failing to stop at a stop sign and operating an unregistered vehicle. N.J.S.A. 39:4-144 and N.J.S.A. 39:3-4. Thus, the officers had a reasonable articulable suspicion to stop the vehicle.
Also, when defendant initially pulled over, he knew that the police were signaling for him to do so. At that point, the law required him to bring his vehicle to a full stop regardless of whether the stop was legal or illegal. State v. Seymour, 289 N.J. Super. 80, 87 (App. Div. 1996). Although defendant briefly stopped, his subsequent flight from the approaching police officers gave Monahan and Sullivan probable cause to believe that he committed the crime of eluding.
Having concluded that defendant had no right to ignore [the officer's] signal and to continue driving for a mile and a quarter, we are satisfied that [the officer] had a right to continue to pursue defendant and stop him . . . [D]efendant's continued driving after [the officer's] signal constituted eluding. Because defendant was committing a third-degree crime in the presence of [the officer], probable cause existed to both seize and arrest defendant. [Ibid.].
During the eluding, Monahan and Sullivan also saw defendant speed in a residential area and drive recklessly, almost striking several vehicles. This provided the officers further probable cause to believe that defendant committed second-degree eluding by creating a risk of death or injury to any person. N.J.S.A. 2C:29-2b. Accordingly, the stop was legal.
Once the Buick's occupants fled and two of them were arrested, Monahan and Sullivan acted legally in seizing the handgun and drugs. "The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require that police officers obtain a warrant 'before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement.'" State v. Cassidy, 179 N.J. 150, 159-60 (2004) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). Accordingly, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." Cooke, supra, 163 N.J. at 664. One of those exceptions is the plain view exception, which requires that to justify seizing evidence without a warrant (1) the officer must "lawfully be in the viewing area[;]" (2) the discovery of the evidence must be "inadvertent, meaning that the officer did not know in advance where the evidence was located nor intend beforehand to seize it[;]" and (3) "the officer must have probable cause to associate the property with criminal activity." State v. Lane, 393 N.J. Super. 132, 144 (App. Div. 2007), certif. denied, 192 N.J. 600.
Applying this three-prong analysis, the trial judge found the search valid. Although defendant only challenges the first prong, we are satisfied that the record supports the judge's findings on all three prongs. The judge found, and we agree, that the officers were lawfully located at the Buick because it was their duty to secure it after defendant and his cohorts left it in the middle of the intersection at 3:00 a.m., engine running, doors open and lights on. To secure the vehicle, the officers inadvertently discovered the handgun and drugs, which were in plain view on the seat and front passenger floor. Because the officers had just pursued the unregistered Buick and observed numerous motor vehicle violations and the crime of eluding, they had probable cause to associate the evidence obtained in the vehicle with the criminal activity they had witnessed.
Defendant's argument relating to the officers' alleged violation of the Attorney General's pursuit guidelines lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Defendant again fails to identify the specific guidelines the officers allegedly violated, and provides no authority that such violation warrants reversal of his conviction.
We decline to address, on this direct appeal, defendant's argument in Point II that he was denied the effective assistance of counsel. A determination of that contention involves allegations and evidence that lie outside the trial record. State v. Preciose, 129 N.J. 451, 461 (1992).