May 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELIJAH PITTMAN AKA ELIJAH M. PITTMAN AKA EMMITT GREEN IBN PITTMAN AKA ELIJAH PITMAN AKA IBM PITTMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-1156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2010
Before Judges Parrillo and Ashrafi.
Tried by a jury, defendant Elijah Pittman was found guilty of second-degree eluding, N.J.S.A. 2C:29-2b, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(6). On the eluding conviction, defendant was sentenced to six years in prison with a two-year period of parole ineligibility, and for aggravated assault, a consecutive eight-year term with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, and we affirm.
According to the State's proofs, at around 7:30 p.m. on August 22, 2006, while still daylight with clear weather, Union Township Police Officer Michael Wittevrongel was monitoring eastbound Route 22 traffic in a marked patrol car parked about ten feet away in a lot perpendicular to the roadway. The officer noticed a Chrysler Fifth Avenue approaching in the left lane with no front license plate, but a New Jersey license plate on the back. Wittevrongel focused solely on this car as it passed by at about forty to forty-five miles per hour, paying particular attention because its driver's side door lock was damaged, indicating that it could have been stolen. At the same time, Wittevrongel observed a male driver and a female passenger.
Wittevrongel ran the number on the rear license plate and found that it was not registered to that vehicle or any other. As a result, he radioed two other officers in the area, David Roman and Walter Stinner, for assistance. Wittevrongel then pulled out onto Route 22 in pursuit, losing sight of the Chrysler for no more than thirty seconds. He eventually caught up to the Chrysler near the Lowes Shopping Center on Route 22, where he saw his fellow officers pull out from the Lowes' parking lot, in their police cruiser, activate their lights and sirens, and signal for defendant to stop. Wittevrongel did the same, taking over as the primary unit in pursuit, only losing sight of the vehicle for an instant just before it ultimately crashed a few minutes later. While in pursuit, Officer Stinner also observed that the driver was male and the passenger, female.
With the police vehicles following, the Chrysler accelerated to about seventy miles per hour in the forty-five mile per hour speed zone, "weaving in and out of traffic," driving erratically, and suddenly "pull[ing] from the left lane, clear across the right lane of traffic, and right off the [exit] ramp." By then, the officers had been pursuing the vehicle for approximately 3.3 miles. When Wittevrongel reached the top of the exit ramp, he saw that the Chrysler - which he lost sight of for only "a fraction of a second" when it shot down the ramp - had rear-ended another vehicle, a Saturn, at a stop sign at the bottom of the ramp. The impact forced the Saturn all the way across the street and into a parking lot where it collided with a tractor trailer.
The Chrysler had sustained heavy front-end damage and was still smoking and rolling the wrong way down a one-way street as the passenger remained inside while the driver attempted to exit, despite the fact that his door would not open. Wittevrongel, after quickly checking that the driver of the Saturn was all right, used his police cruiser to block the Chrysler from moving any further. Inside that vehicle was defendant, in the driver's seat, along with a passenger, defendant's cousin Nicole Pittman. Defendant, who was the same person Wittevrongel saw in the driver's seat when he first observed the vehicle on Route 22,*fn1 was then placed under arrest. Carol McBride, the driver of the Saturn vehicle, sustained injuries to her neck, back, and shoulders that left her, more than a year later, with continuing pain and still unable to drive.
Having credited the State's version, the jury found defendant guilty of second-degree eluding and aggravated assault for which he was sentenced to consecutive prison terms. For the first time on appeal, defendant challenges the court's jury charge for failing to give the identification and "false in one, false in all" instructions, omitting a paragraph from the eluding charge, and erroneously instructing on defendant's right to remain silent. Defendant also argues that the imposition of consecutive sentences was an abuse of discretion. Specifically, defendant argues:
I. THE COURT'S JURY INSTRUCTION ERRORS REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. (Not Raised Below).
A. The Court's Failure To Instruct The Jury Sua Sponte That The State Had To Prove Identification Beyond A Reasonable Doubt Denied Defendant His Constitutional Rights To Due Process And A Fair Trial. U.S. Const. Amends. V, VI, XIV; N.J. Const. ¶¶ 1, 9, and 10.
B. The Court Erred In Not Charging "False In One False In All" Sua Sponte, Thus Prejudicing Defendant Where The Primary Witnesses Were Law Enforcement Officers. (Not Raised Below).
C. The Court Erroneously Omitted A Paragraph From The Model Charge On Eluding, Thus Diluting The State's Burden Of Proof. (Not Raised Below).
II. THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below).
III. THE COURT'S IMPOSITION OF CONSECUTIVE SENTENCES CONSTITUTES AN ABUSE OF DISCRETION, AND THE REASONS STATED CONTRAVENE YARBOUGH PRINCIPLES.
We find no merit to any of these contentions.
Defendant argues he was entitled to a sua sponte identification charge because his defense was misidentification. We perceive no reversible error in the omission of this instruction. R. 2:10-2; State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005).
When identification is a "key issue," a defendant is entitled to an identification instruction. State v. Green, 86 N.J. 281, 291-92 (1981). See also, e.g. State v. Cotto, 182 N.J. 316, 325 (2005); State v. Robinson, 165 N.J. 32, 40 (2000); State v. Cromedy, 158 N.J. 112, 128 (1999). Here, however, defendant presented no evidence in support of a misidentification defense, nor did he advance any such direct argument during opening and closing statements. If anything, defendant's trial strategy was to suggest through cross-examination that from a stationary position beside the roadway, Officer Wittevrongel could not have seen the details that he observed on defendant's vehicle as it drove by - specifically, the damaged lock, the missing front plate, and the number on the rear plate.*fn2
Moreover, the identification of the driver as a male, which in this instance was dispositive of the issue since the only other person present was female, did not depend, as in the usual case, on the "'vagaries of eyewitness identification[,]'" State v. Pierce, 330 N.J. Super. 479, 488 (App. Div. 2000) (quoting United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed. 2d 1149, 1158 (1967)), or on circumstances that greatly limited the witness's perception of events or called into question the reliability of his identification. See, e.g., Green, supra, 86 N.J. at 285-87 (sole eyewitness rape victim's identification of assailant was made one year post-offense, which occurred at night while the assailant remained behind the victim, after she had initially described her attacker as five inches shorter and thirty pounds lighter than the defendant); Pierce, supra, 330 N.J. Super. at 487 (witness's identification of defendant was based on a "brief late night street encounter[,]" her initial description was inconsistent with the defendant's appearance, and she could not identify the defendant until the fifth time she was shown photograph); State v. Frey, 194 N.J. Super. 326, 329-30 (App. Div. 1984) (victim, as only witness, saw assailant briefly before eyes taped shut). Because identification was not a significant issue in this case, the omission of an identification instruction was not clearly capable of producing an unjust result, as the court's general jury charge on credibility sufficed as proper instruction for the evaluation of such testimony. See Pierce, supra, 330 N.J. Super. at 488 (citing Green, supra, 86 N.J. at 290).
In any event, a determination of whether an omission of an identification instruction constitutes "plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." Cotto, supra, 182 N.J. at 326. Independent identification of a perpetrator by multiple witnesses may constitute such corroborative evidence. See Gaines, supra, 377 N.J. Super. at 626; see also State v. Salaam, 225 N.J. Super. 66, 71-72 (App. Div.), certif. denied, 111 N.J. 609 (1988).
In this case, Officer Wittevrongel identified defendant as the driver of the vehicle during the pursuit. Both Wittevrongel and Officer Stinner testified that they each observed a male driver and female passenger. Also, Wittevrongel testified that defendant was in the driver's seat of the car when he first observed the Chrysler and he found defendant in the driver's seat of the car after the crash. Accordingly, this is not a case in which the State relied on one eyewitness, State v. Davis, 363 N.J. Super. 556, 559-61 (App. Div. 2003); Frey, supra, 194 N.J. Super. at 329-30, or where the eyewitness made inconsistent statements, Green, supra, 86 N.J. at 291-92; Pierce, supra, 330 N.J. Super. at 487. On the contrary, there was sufficient corroborating evidence of identity so as to render any error in the omission of an identification charge harmless.
Neither did the court err in failing to give, sua sponte, a "false in one, false in all" instruction. "[A] trial judge in his discretion may give the charge in any situation in which he reasonably believes a jury may find a basis for its application." State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L.Ed. 2d 374 (1961). Here, there is no evidence that Officer Wittevrongel testified falsely. To the contrary, he credibly admitted to having lost sight of the Chrysler for twenty to thirty seconds after it passed him. The officer also testified that he did not lose sight of the car as it exited because "you go down a tiny hill a fraction of a second." Moreover, Wittevrongel said that he paid attention to the Chrysler while momentarily checking on McBride's condition.
Under the circumstances, there was no abuse of discretion in failing to give the "false in one, false in all" charge. Instead, the judge instructed:
You may consider whether the witness testified with intent to deceive you.
You may consider the reasonableness or unreasonableness of the testimony the witness has given.
You may consider whether the witness made any inconsistent or contradictory statement.
And any and all other matters in the evidence which serve to support or discredit his or her testimony.
Through that process, you may accept all of it, a portion of it, or none of it. [(Emphasis added).]
This instruction provided adequate guidance to the jury in assessing witness credibility. No more was required.
Defendant argues that the trial court's omission of the following paragraph from the model charge on eluding reduced the State's burden:
If you find that [defendant] was the owner of the vehicle, you may infer that (he/she) was operating that vehicle at the time of the offense. However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish. [Model Jury Charge (Criminal), Eluding an Officer [Second and Third Degree] (Nov. (2004).]
Defendant argues that he could have "potentially benefited from an inverse inference had evidence been presented that ownership lay with someone other than the defendant[,] [and] [t]hus, the judge's failure to include the paragraph in the instruction lessened the State's burden [of proof]. . . ." This argument is without merit. R. 2:11-3(e)(2).
The omitted portion of the Model Jury Charge serves only to inform juries that they can infer from a defendant's ownership of a vehicle that the defendant also was the driver of that vehicle at the time of the charged offense. Yet, ownership of the Chrysler was never verified nor was it ever an issue at trial. This is because the State is not required to prove a "connection" to the car to prove second-degree eluding under N.J.S.A. 2C:29-2b. The State need only prove that defendant was "operating a motor vehicle[.]" See N.J.S.A. 2C:29-2b.
Model jury charges "should be followed and read in their entirety to the jury" only "insofar as consistent with and modified to meet the facts adduced at trial[.]" State v. R.B., 183 N.J. 308, 325 (2005). Since the State did not argue that defendant was the owner of the vehicle, the omitted paragraph was irrelevant, as it pertained to neither the proofs in the case nor any element of the offenses charged.
Defendant elected not to testify and also chose to have the judge instruct the jury on his decision not to testify. Thus, the trial court instructed the jury:
Now, as you know, the defendant elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussion in any manner or any time. The defendant is entitled to have the jury consider all the evidence presented at trial. And he is presumed to be innocent even if he chooses not to testify. [(Emphasis added).]
Defendant contends that the word "even" in the last line of this excerpt "unmistakably and inescapably conveys the message that the defendant should have testified." Because defendant did not object to the proposed instruction, the plain error standard will again apply. See State v. Taffaro, 195 N.J. 442, 454 (2008); R. 2:10-2.
The trial court's instruction on defendant's election not to testify conformed to the then-current model jury charge, which used the word "even" in the last line. In 2009, the word "even" was replaced with the phrase "whether or not." Model Jury Charges (Criminal), Defendant's Election not to Testify (May 2009). However, the former charge was never held to be violative of a defendant's rights. Indeed, the trial court's instruction in this case, in clear and plain terms, properly advised the jury that they "must not consider for any purpose or in an manner" defendant's election not to testify. "[T]he jury is presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312, 335 (2007). There was no error here, much less plain error.
Defendant challenges the imposition of consecutive terms aggregating to a fourteen-year sentence with a nine-year parole bar. We find no abuse of discretion.
"[W]hen reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)).
[A]ppellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [State v. Roth, 95 N.J. 334, 365-66 (1984).]
With respect to consecutive terms, the Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), held that "there can be no free crimes in a system for which the punishment shall fit the crime[,]" and went on to enumerate certain factors sentencing courts should consider:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous[.]
"[T]here is no presumption in favor of concurrent sentences and therefore the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions." State v. Abdullah, 184 N.J. 497, 513-14 (2005). Thus, "the sentencing range is the maximum sentence for each offense added to every other offense." Id. at 514. According to Yarbough, supra, consecutive sentences may be appropriate when the charges constitute separate offenses for which consecutive offenses are appropriate, such as when they involve multiple victims, separate acts of violence, independent objectives, or separate times and places. Yarbough, supra, 100 N.J. at 643.
Here, in sentencing defendant on the two second-degree crimes for which he was convicted, the trial judge applied aggravating factors one ("nature and circumstances of the offense"); two ("gravity and seriousness of the harm inflicted on the victim"); three ("risk that the defendant will commit another offense"); six ("extent of the defendant's prior criminal record and the seriousness of the offenses"); and nine (need for deterrence). N.J.S.A. 2C:44-1. Additionally, the court found no mitigating factors.
In imposing consecutive sentences, the trial court found:
[T]he ability to impose consecutive sentences in this matter I think is appropriate under State v. Yarbough. There are . . . at least two separate victims.
There are the people who were put in danger by Mr. Pittman's actions along the area of the chase but then there is the actual injuries that were inflicted upon the victim and the aggravated assault case. I think clearly Yarbough -- while the incident may have occurred and been contemporaneous, the fact that there are two victims here clearly gives the Court the right and the duty to impose consecutive terms in this case.
We find defendant's aggregate sentence clearly within the sentencing guidelines and supported by the weight of the well-grounded aggravating factors and the non-existence of any mitigating circumstances. Moreover, the imposition of consecutive terms is reasonably explained by the multitude of victims involved, namely members of the public and the pursuing police officers who were at risk during the 3.3 mile car chase, and Carol McBride, who suffered actual and continuing injury as a result of the aggravated assault which ended defendant's criminal episode.