On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2021.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges Axelrad, R. B. Coleman, and J. N. Harris.
Defendant Orric B. Mitchell challenges his conviction and sentence for second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). On appeal, he asserts numerous errors including the court's admission of other crimes evidence and failure to offer a limiting instruction in regard thereto, improper jury charges, failure to dismiss the indictment, admission of a video recording of a high-speed police chase, violation of defendant's right to a speedy trial, and an excessive sentence. We are unpersuaded by defendant's arguments and affirm; however, we remand for resentencing.
On July 8, 2007, at approximately 3:30 a.m., defendant was driving at eighty-three miles per hour in a gold-colored Lincoln sedan along Route 9 in Howell Township. Police Officer David MacNeil was on duty, monitoring traffic along defendant's route with the use of radar and noticed defendant's vehicle approaching at a high rate of speed. The officer immediately pursued defendant and drew close enough to identify the vehicle's license plate number, which he entered into the police vehicle's mobile data terminal and called out over the radio to alert other officers in the area. When Officer MacNeil activated the overhead lights on his patrol car, defendant accelerated in response, exceeding speeds of 100 miles per hour.
The patrol car was equipped with a forward-looking video camera and recording device that captured portions of the chase.
As defendant continued north with Officer MacNeil in hot pursuit, defendant began to pass other vehicles by driving on the shoulder of the road. At one point, defendant turned off his headlights in an effort to cloak his presence. Due to safety concerns, Officer MacNeil suspended the pursuit due to the high level of risk.
As defendant entered Freehold Township, Police Officer Scott Keenan of the Freehold Township police department resumed the pursuit, registering speeds up to 120 miles per hour. Eventually, defendant failed to successfully navigate a left-hand turn and crashed his vehicle. He then fled on foot but was apprehended and arrested shortly thereafter. Defendant was read his Miranda*fn1 rights and initially refused to make a statement. Once he was returned to the scene of the crash, however, he asserted that he had been carjacked by an Italian man at a WaWa convenience store in Howell, but the carjacker had managed to escape, and the police had arrested the wrong person.
On June 4, 2008, the court conducted a Driver*fn2 hearing relating to the video recording, and ruled on defendant's motion to dismiss the indictment due to the State's alleged failure to present exculpatory evidence to the grand jury. During the grand jury proceedings, the State had neither shown the video recording of the high-speed pursuit nor offered the radar readings. Defendant asserted that the omission of the video recording and radar readings was misleading, which resulted in a defective grand jury proceeding requiring dismissal of the indictment.
After viewing the video recording of the high-speed chase and considering the testimony of officers MacNeil and Keenan, the court denied defendant's motion to dismiss the indictment finding that the video recording was not exculpatory. Rather, the court ruled that the video recording clearly showed the vehicle, which defendant was operating, traveling at a very high rate of speed with a "potential [to cause] significant injury to anyone who came in its path." In addition, the court found that exculpatory evidence had been presented to the jury in the form of testimony that defendant had claimed he was the victim of a carjacking.
The court also ruled that the video recording of the pursuit was admissible, finding it was reliable evidence, not altered, cut, or changed in any way; the chain of custody was properly preserved; and that the video recording accurately depicted the vehicle in question "being driven in a wanton and willful disregard of the safety of others and at a very, very high rate of speed."
Officer Keenan also testified about defendant's Miranda rights. The officer indicated that shortly after arriving at the scene of the crash, he read defendant his Miranda rights. He further related that defendant fell silent and that none of the officers questioned him, except to determine whether he was injured. In short order, however, defendant volunteered that he had been carjacked by an Italian male and that the officers had arrested the wrong person. On cross-examination, Officer Keenan acknowledged that the police report did not include any mention of defendant's statement of being victimized. As a result, defendant argued that he made no such statement, and Officer Keenan was lying.
The court found Officer Keenan "highly credible," and determined that defendant was read and understood his rights after the arrest. Accordingly, if defendant had made a statement that he was the one carjacked, it was a voluntary statement, admissible at trial.
The State presented photographs of the damaged vehicle during the trial. Defendant objected to their admission claiming that he had not been provided the photographs prior to trial and therefore did not have the opportunity to inspect them or prepare a defense. The owner of the Lincoln -- defendant's one-time girlfriend, Alicia Jackson -- testified that the photographs were taken on July 10, 2007, while the vehicle was in the police impound lot, and that the photographs accurately depicted the extent of the damage that the vehicle sustained. Jackson testified she mailed copies of the photographs to defendant while he was incarcerated awaiting trial and that he acknowledged receiving them.
As part of its jury charge, the court gave the following instruction with regard to eluding:
Now, it is alleged the defendant's conduct involved various violations of the motor vehicle laws both in Howell Township and in Freehold. Among those were allegations of speeding, reckless driving, improper passing, failure to yield the lane, passing on the right, no headlights, unlicensed driver, and driving while suspended to name a few. Whether a defendant is guilty or not guilty of those offenses will be determined by an appropriate court. In other words, it is not your job to decide whether he is guilty or not guilty of any of those motor vehicle offenses. However, you may consider the evidence that he committed such offenses in deciding whether he created a risk of death or injury.
At the same time, remember that you are never required or compelled to draw this inference. As I've already explained, 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 or reject any inference if you wish.
The court also instructed the jury with regard to the resisting arrest by flight charge, noting that that State was required to prove that "defendant, fearing that he would be arrested, fled for the purpose of evading that arrest."
On appeal, defendant presents us with eleven discrete points:
POINT 1: THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL BY PERMITTING TESTIMONY REGARDING OTHER CRIMES ALLEGEDLY COMMITTED BY DEFENDANT (PLAIN ERROR).
POINT 2: EVEN IF THE OTHER-CRIMES EVIDENCE WAS PROPERLY ADMITTED, THE JURY INSTRUCTIONS LIMITING THE ADMISSIBILITY OF THIS EVIDENCE WERE INSUFFICIENT (PLAIN ERROR).
POINT 3: THE JURY CHARGE ON ELUDING WAS IMPROPER (PLAIN ERROR).
POINT 4: DEFENDANT'S DISCOVERY RIGHTS WERE VIOLATED BECAUSE PHOTOS OF THE ALLEGED DAMAGED CAR WERE NOT PROVIDED TO DEFENDANT BEFORE TRIAL, AND THE PHOTOS WERE INSUFFICIENTLY AUTHENTICATED FOR ADMISSION AT TRIAL.
POINT 5: THE VIDEO SURVEILLANCE SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE AS NOT SUFFICIENTLY RELIABLE UNDER DRIVER.
POINT 6: DEFENDANT'S ORAL STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE ...