October 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WENDELL WALDRON A/K/A KEVIN WALDON A/K/A COLIN LAWSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3600.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Sapp-Peterson and Simonelli.
Defendant, Wendell Waldron, appeals his conviction, following a jury trial, for second-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest without force, N.J.S.A. 2C:29-2(a), and the imposition of an aggregate seven-year term of imprisonment. We affirm.
On appeal, defendant raises the following points for our consideration:
MR. WALDRON WAS DEPRIVED OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT DUE TO THE ASSISTANT PROSECUTOR'S IMPROPER REMARKS DURING SUMMATION. (Not raised below).
THE ASSISTANT PROSECUTOR'S IMPROPER REMARKS DURING SUMMATION DEPRIVED MR. WALDRON OF A FAIR TRIAL. (Not raised below).
MR. WALDRON WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The circumstances that gave rise to these convictions occurred when two Port Authority of New Jersey and New York (PA) police officers, Michael Kelly (Officer Kelly) and Richie Schaffer (Officer Schaffer), on duty at Newark Liberty Airport, pulled their vehicle behind a parked and unattended silver Pathfinder. The rear window of the vehicle displayed an expired temporary registration. As Officer Kelly approached the vehicle, an unidentified male, whom police later identified as defendant, exited the terminal and told the officers that he had just dropped off his girlfriend. When asked to produce his driving credentials, the individual handed over his driver's license and then told the officers he had to get the registration and insurance card from the vehicle. He entered the vehicle but then sped away. The two officers pursued the vehicle into Newark, never losing sight of it. After the Pathfinder's tires blew out, when the vehicle went over a curb, the driver exited the vehicle and proceeded to flee on foot. Once the driver exited the vehicle, Officer Kelly also exited his vehicle and pursued the individual on foot, but he eventually lost sight of him.
PA Detective Sergeant Billy Smith (Det. Sgt. Smith), who was also at the airport in an unmarked vehicle that evening, joined the pursuit after hearing that two of his officers were pursuing a vehicle. He observed both vehicles as he was traveling down a connector road onto Route 78 and followed both vehicles at that point. He testified that after the tires of the Pathfinder blew out, the vehicle came to rest on the corner of West Bigelow Street and Ridgewood Avenue (Ridgewood) in Newark. He observed the driver exit the vehicle and flee down Ridgewood with Officer Kelly pursuing him on foot. The pursuit led Office Kelly and the individual into a vacant lot on Ridgewood. Det. Sgt. Smith continued down Ridgewood in his vehicle and observed the individual go behind a house, into a second vacant lot located on the other side of the house, and then duck behind a large bush. He radioed the individual's location to the pursuing officers.
Officer Kelly testified that as he turned a corner in pursuit of the individual heading down Ridgewood, he saw Det. Sgt. Smith pointing towards a broken basement window. He jumped through the window and took the individual into custody after a brief struggle. He identified defendant as the individual he encountered at the airport and later arrested in the basement. In addition to the testimony of Officer Kelly and Det. Sgt. Smith, the State also presented an audiotape of the transmissions that were made by the officers during their pursuit of defendant from the airport into Newark.
Defendant presented one witness, Sheila St. Hilaire, who testified that defendant had spent the night of June 17, 2002, into the early morning hours of June 18, with her and an exotic dancer at the dancer's home. According to St. Hilaire, defendant did not leave the dancer's home until "close to five, if not a little bit after five."
In both Points I and II, defendant contends the prosecutor engaged in prosecutorial misconduct during closing argument that warrants reversal of his conviction. Because defendant failed to object to the offending comments during trial, we review the allegations of prosecutorial misconduct under the plain error standard, namely, whether the prosecutor's remarks were "clearly capable of producing an unjust result." R. 2:10-2. In our analysis to determine whether the prosecutor's comments here warrant reversal, we assess whether the claimed misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). We are mindful that the prosecution's duty to achieve justice does not forbid a presentation of the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Rather, what is prohibited is prosecutorial advocacy that employs improper methods that result in a wrongful conviction. See State v. Farrell, 61 N.J. 99, 105 (1972) (noting "'it is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Farrell, supra, 61 N.J. at 105 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935))).
Defendant claims the following remarks violated his constitutional right to remain silent:
Can you imagine if he gave the license and did get away? Hey[,] someone stole [my] license? Someone stole my wallet three days earlier. That's all you've got to come in here and say. If he got away, hey, it was -- it wasn't -- you know, if he gets away it was -- it was a good tactical decision for Mr. Wald[r]on on that day, if he gets away. Because then it's -- it's a -- it's -- as much as [defense counsel] stands here and makes arguments that they still got the wrong guy in light of all this evidence, can you imagine if they didn't apprehend him.
All someone has to do is come in and that's -- you know, I was somewhere else, with another in -- Ms. -- Ms. St. Hilaire, bring a third party, that threesome in to say that I was, in fact, with him, and --and his wallet had gotten stolen.
In the context of this trial, we are satisfied that these remarks cannot be characterized as implicating post-arrest silence. Post-arrest silence is generally silence by a defendant after an arrest and administration of Miranda*fn1 warnings, which silence the prosecution later attempts to use to challenge the credibility of exculpatory testimony given or exculpatory evidence presented by a defendant at trial. See State v. Elkwisni, 190 N.J. 169, 177 (2007) (reiterating that under our state law, a prosecutor may not use a defendant's silence at the time of his arrest and after receiving Miranda warnings to impeach later exculpatory testimony from the defendant at trial). That is not what occurred here. The prosecution simply posited a scenario that if defendant had successfully eluded the police, he would have then been in a position to say that his wallet or license had been stolen on a previous occasion to support his claim of mistaken identity. Although this comment was gratuitous and irrelevant, it did not violate defendant's privilege against self-incrimination.
Defendant next claims the prosecutor improperly vouched for the credibility of Officer Kelly when he remarked, "I'll tell you what, he's an awesome officer. . . . I submit the City of Newark could use a couple of officers like him." Further, defendant urges that the prosecutor improperly appealed to the jurors' emotions with the following statement: "[T]hank God that this is a case about eluding and not a case where someone got injured. Thank God no little children came out of their houses, and thank God no children ha[d] to lose their father."
We agree that neither statement was proper. However, "[t]o justify reversal, [a] prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas (I), 161 N.J. 515, 575-76 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).
The comments vouching for Officer Kelly's credibility were "'clearly and unmistakably improper.'" Timmendequas (I), supra, 161 N.J. at 575-76. Nonetheless, the remarks did not "substantially prejudice defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 575.
In addition to being presented with testimony from Officer Kelly, who first confronted defendant at the airport before he fled in the Pathfinder, the jury heard the testimony of Det. Sgt. Smith. According to Det. Sgt. Smith, he joined the pursuit and never lost sight of defendant, even after defendant exited the Pathfinder and fled down Ridgewood. As a result, Det. Sgt. Smith indicated that he was able to direct the pursuing officers to his location. Moreover, the jury was also able to hear the radio transmission of the chase. Thus, the evidence before the jury was not limited to the testimony of Officer Kelly. Further, notwithstanding Officer Kelly's testimony that defendant resisted arrest with force, the jury acquitted defendant of this charge, clearly suggesting that the jury did not accept all of Officer Kelly's testimony concerning the incident, irrespective of the prosecutor's comments vouching for his credibility and character.
Turning to whether the prosecutor appealed to the jury's emotions during closing, defense counsel told the jury that Officer Kelly's report did not describe what a "high rate of speed" meant or identify the people who were "supposedly being attempted to be driven off the road. . . . [but] one thing we do know is there was no injuries to any other motorists. There was no accident involving any other motorists or any police car." The prosecutor's expression of relief that no children were hurt was doubtless in response to these remarks.
The record included testimony that defendant was traveling approximately sixty-five miles per hour within the City of Newark and, as defense counsel noted in her summation, the vehicle being chased "ultimately comes through Shabazz . . . High School field, which is across the street from Shabazz High School . . . ." Although these events occurred around 5:00 a.m., presumably, even without the prosecutor's remarks, the jurors would have harbored the same thoughts. The central issue before the jury, however, was not the manner in which the vehicle was being driven but whether defendant was the driver. Hence, these comments, while improper, were not so egregious as to have deprived defendant of a fair trial. State v. R.B., 183 N.J. 308, 334 (2005).
Finally, defendant did not object to any of the prosecutor's comments about which he now complains. Thus, the court was deprived of the opportunity to offer a curative instruction. R.B., supra, 183 N.J. at 333. Consequently, "'the remarks will not be deemed prejudicial [because] [t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made.'" Ibid. (quoting Frost, supra, 158 N.J. at 82-84 (internal quotations and citations omitted)).
The remaining arguments advanced by defendant in Points III and IV are without sufficient merit to warrant extensive discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2).
Specifically, defendant's claim that he was denied effective assistance of counsel because trial counsel failed to object to the prosecutor's improper comments, or move for a mistrial or request a curative instruction, raises questions of trial strategy not susceptible to resolution on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992) (noting "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."). An exception to this general principle exists where the trial record discloses the essential facts necessary to address the ineffective assistance of counsel claim. See State v. Castagna, 187 N.J. 293, 313 (2006); see also State v. Allah, 170 N.J. 269, 285 (2002). Our review of the record here does not persuade us that the record was sufficiently developed that we may consider defendant's claim on direct appeal.
Finally, defendant contends the seven-year aggregate term imposed by the court was excessive. We also reject this contention.
The court correctly applied the sentencing guidelines. State v. Roth, 95 N.J. 334, 365 (1984). There was substantial credible evidence in the record to support the court's consideration of the two aggravating factors: (1) the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and (2) the need to deter defendant from violating the law, N.J.S.A. 2C:44-1(a)(9), evidenced by defendant's lengthy prior criminal history that included six indictable convictions. Further, the court did not abuse its discretion when it failed to consider, as a mitigating factor, that defendant did not contemplate his conduct would threaten or cause serious harm, N.J.S.A. 2C:44-1(b)(2). A conviction for eluding police through the use of an automobile does not require actual injury to another but only that the "flight or attempt to elude creates a risk of death or injury to any person[.]" N.J.S.A. 2C:29-2(b). Despite the fact that the eluding occurred around 5:00 a.m., defendant led police on a high-speed chase on Route 78 and, at one point, swerved around one vehicle "almost swerving [that vehicle] towards [Officers Kelly and Schaffer] in between the two concrete dividers." He then exited Route 78 into Newark traveling sixty-five miles per hour down Ridgewood Avenue, disregarding a red traffic signal. This evidence more than sufficiently supports the court's decision not to consider the proffered mitigating factor.