December 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARON HARRIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0728.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010 - Decided Before Judges Axelrad, Lihotz, and J. N. Harris.
Defendant Caron Harris appeals from his convictions and sentence for two counts of aggravated assault and two counts of resisting arrest, for which he received an aggregate sentence of five years imprisonment with a two and one-half-year period of parole ineligibility. On appeal, defendant asserts a multitude of trial errors including improper jury instructions, various evidentiary errors, and what he considers to be an unfair and excessive sentence imposed by the Law Division. We affirm.
The following facts are gleaned from the trial record, which evidently convinced the jury to acquit defendant of the most serious charges, but to convict him of resisting arrest and aggravated assault. At approximately 11:40 p.m. on February 25, 2007, off-duty Jersey City Detective Joseph Walsh was traveling along Culver Avenue in Jersey City near the intersection of Culver and Route 440. Walsh heard gunshots and saw a muzzle flash between a red Pontiac and a maroon Toyota Scion traveling northbound on Route 440.
In response to what he had heard and seen, Walsh moved behind the two vehicles and followed the Scion when it turned right at Claremont Avenue. When the two cars came to a stop light at the intersection of Culver and West Side Avenues, plain clothes police officers Rodriguez and Lanzo, who had responded to a call placed by Walsh, exited their unmarked car in the middle of the intersection and approached the Scion on foot and with their badges on display. Before they could reach the Scion, it continued through the red light and turned left onto West Side Avenue. Police officers Nisbet and O'Connell then joined in the pursuit. The Scion was observed "cutting in and out of cars" and passing through four red lights.
Near the intersection of West Side and Virginia Avenues, Nisbet noticed the driver of the Scion, later identified as defendant, make a reaching motion towards the passenger side of the vehicle. Nisbet then lost sight of the vehicle, at which point police officers Cullinane and Licata picked up the chase in a marked police vehicle. After traveling through three more red lights, defendant's vehicle crashed into a light pole at the corner of West Side and Kensington Avenues.
Defendant then exited his vehicle and began running along Kensington Avenue. At one point defendant ran behind parked cars, temporarily shielding himself from the officers' view. Cullinane then noticed a foot sticking out from under a pile of garbage bags near a parked car. He and Licata attempted to pull defendant out from under the vehicle while directing that defendant show them his hands. According to the officers, defendant began screaming, then "flailing, kicking [his legs up at the officers], and punching, refusing to give [the officers] his hands so [they] could handcuff him." This resulted in both officers being struck in the upper chest and face. Eventually, defendant was subdued and taken into custody.
A .45 caliber handgun containing one live round was later recovered at the intersection of West Side and Virginia Avenues where the officers had previously observed defendant make a reaching motion towards the passenger side of the vehicle. An investigation of the area along Route 440 where Walsh had initially heard gun shots yielded two spent .45 caliber shell casings, however no evidence was presented to directly link the casings to the .45 caliber weapon recovered from the other location.
In addition to being issued eleven motor vehicle summonses, defendant was charged by a Hudson County Grand Jury with second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (counts four and five); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) (count eight).
Before it deliberated, the jury was instructed that it could consider defendant's alleged flight as evidence of his consciousness of guilt. The jury ultimately found defendant guilty of two counts of aggravated assault -- one in the third-degree and one in the fourth-degree -- and two counts of resisting arrest -- one in the fourth degree and one as a disorderly persons offense.*fn1 He was sentenced to five years imprisonment with a two and one-half-year period of parole ineligibility on count four and lesser concurrent sentences on the remaining counts.
On appeal, defendant raises the following points:
Point One: THE TRIAL COURT'S JURY INSTRUCTION TO THE JURY ON THE DOCTRINE OF FLIGHT WAS PLAIN ERROR. (Not Raised Below) Point Two: DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S LIMITATIONS OF THE CROSS-EXAMINATIONS OF OFFICER NISBET AND INVESTIGATOR DIAZ TO PRECLUDE TESTIMONY AS TO THE PREVALENCE OF .45 CALIBER HANDGUNS IN JERSEY CITY.
Point Three: THE TRIAL COURT ERRED BY PERMITTING SERGEANT MCKERRY TO RENDER AN UNQUALIFIED EXPERT.
Point Four: THE ADMISSION INTO EVIDENCE OF THE MOTOR VEHICLE SUMMONSES DENIED DEFENDANT A FAIR TRIAL.
Point Five: DEFENDANT WAS UNDULY PREJUDICED BY OFFICER NISBET'S TESTIMONY WHICH OFFERED A LEGAL CONCLUSION AS TO DEFENDANT'S GUILT. Point Six: DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
From our review of the trial record, we are firmly convinced that defendant's arguments are unavailing, and we affirm the convictions and aggregate sentence imposed.
Defendant first asserts that the trial court's instructions regarding flight constituted plain error because they failed to carefully distinguish among the several charges in the indictment. Specifically, he argues that an inference of guilt should not have been drawn with respect to the eluding,*fn2
aggravated assault, and resisting arrest charges because those charges arose out of conduct occurring after defendant's alleged flight.
Because defendant did not object to the jury charge at trial, we consider the issue pursuant to the doctrine of plain error. R. 1:7-2; R. 2:10-2; State v. Walker, 203 N.J. 73, 89 (2010); see also State v. Burns, 192 N.J. 312, 341 (2007). In the context of a jury charge, we review the alleged error in conjunction with the actual charge, as well as the strength of the evidence and arguments presented at trial. State v. Chapland, 187 N.J. 275, 289 (2006) (a finding of plain error depends upon "the strength of the State's case"); State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.) (noting that the question is "whether the error made it easier for the State to get a conviction"), certif. denied, 200 N.J. 370 (2009). Although errors in a jury charge are "poor candidates for rehabilitation under the harmless error [rule]," a conviction should not be overturned if the jury was able to make a fair evaluation of the competent evidence, and returned a "verdict of guilt which is supported overwhelmingly by properly admitted evidence." State v. Simon, 79 N.J. 191, 206-07 (1979); see also State v. Jordan, 147 N.J. 409, 422 (1997).
In the present case, the jury was instructed in relevant part:
There has been some testimony in the case from which you may infer that the defendant fled shortly after the commission of the crime. The defendant denies he fled from the police. The question of whether the defendant fled . . . is [a] question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find however that the defendant fearing that an accusation would be made against him on the charge involved in the indictment, he took refuge in flight for a purpose of evading the accusation or arrest on the charges then you may consider such flight in connection with all other evidence in the case as an indication or proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest.
We begin with "the well-established principle that certain conduct of a defendant subsequent to the commission of a crime may indicate his consciousness of guilt." State v. Phillips, 166 N.J. Super. 153, 159 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). In particular, flight from custody or the scene of a crime is generally admissible to draw an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993), if done with the purpose of avoiding apprehension, prosecution, or arrest. Id. at 418-19; State v. Ingram, 196 N.J. 23, 46 (2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure" is not enough. State v. Long, 119 N.J. 439, 499 (1990).
Although evidence of flight is generally admissible, "[t]he potential for prejudice to the defendant and the marginal probative value of evidence of flight," requires the court to carefully consider the manner in which such evidence is presented to a jury. Mann, supra, 132 N.J. at 420. The probative value of flight evidence depends on: the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. [Ibid. (quoting United States v. Myers, 550
F.2d 1036, 1049 (1977)).]
Because defendant takes issue with the instruction on flight as it was
applied to all charges, we consider each conviction*fn3
to determine whether the flight instruction as provided to
the jury was "clearly capable of producing an unjust result" on that
charge. R. 2:10-2.
Defendant persuasively argues that the trial court erred in instructing the jury that it could consider defendant's earlier flight in determining whether he was guilty of resisting arrest. The charges of resisting arrest related to defendant's resistance to the police officers' attempt to place him under arrest following defendant's attempted flight on foot.
The trial court instructed the jurors that if they found defendant "took refuge in flight for a purpose of evading the accusation or arrest on the charges then . . . they may consider such flight . . . as an indication or proof of consciousness of guilt." This instruction did not explicitly restrict the flight charge to specific counts in the indictment. Because the facts make clear that the resisting arrest charges arose out of conduct occurring subsequent to defendant's flight, this undifferentiated flight instruction was inappropriate as overly inclusive.
Nonetheless, our canvass of the record satisfies us that the error was harmless in light of the substantial evidence supporting defendant's convictions for resisting arrest. See Docaj, supra, 407 N.J. Super. at 369; cf. State ex rel. A.S., 203 N.J. 131, 153 (2010). The standard "for determining whether an error is harmless 'is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'" State v. Sanchez, 129 N.J. 261, 278 (1992) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 710 (1967)). Here, defendant's flight was clearly understood as ending upon his apprehension, and thus we find no reasonable possibility that its introduction into evidence contributed to the convictions for resisting arrest.
Defendant makes the same argument as to his convictions for aggravated assault. Because those charges arose out of the same conduct that gave rise to defendant's convictions for resisting arrest, the global flight instruction was likewise overly-broad as to those counts. Nevertheless, given the abundance of evidence and the totality of the circumstances, the error was harmless beyond a reasonable doubt. Furthermore, the fact that defendant was acquitted of eluding and the weapons-related charges strongly confirms that the jury was able to distinguish between the separate counts in the indictment and render a just verdict as to each. Thus, while we recognize that a too wide-ranging instruction on flight was theoretically unsuitable to the circumstances, it did not rise to the level of plain error. See State v. Macon, 57 N.J. 325, 336 (1971) (the possibility of an unjust result must be "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached").
Defendant next urges that his constitutional right of confrontation was infringed because the State's witnesses, Nisbet and Diaz,*fn4 were prohibited from testifying as to the prevalence of .45 caliber pistols in Jersey City. The trial court refused to admit such testimony on grounds of relevance, juror confusion, and low probative value. Defendant now asserts that Nisbet's testimony constituted a proper lay opinion permitted pursuant to N.J.R.E. 701.
Both the federal and New Jersey constitutions guarantee criminal defendants the right to "be confronted with the witnesses against them." U.S. Const. amend VI; N.J. Const. art. 1, para. 10. The confrontation principle assures a defendant's opportunity to "elicit favorable testimony on cross-examination of the [S]tate's witnesses." State v. Budis, 125 N.J. 519, 531 (1991). However, a court may exclude testimony where fairness and reliability are in question. Id. at 531-32; State v. Labrutto, 114 N.J. 187, 197 (1989); State v. Murray, 240 N.J. Super. 378, 394 (App. Div.) ("[T]he scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown."), certif. denied, 122 N.J. 334 (1990).
We do not find that the putative evidence of endemic .45 caliber handgun presence in Jersey City was relevant to defendant's case. Moreover, neither State witness was demonstrated to possess the background or experience necessary to testify on the specific matter. Diaz was qualified as an expert on the operability of firearms, not on the prevalence of .45 caliber handguns in Jersey City. Nor did Nisbet's long-time experience as a police officer qualify him as an expert on the numerosity of .45 caliber handguns in the locale where defendant was accused of the illicit possession of same. Anecdotal information or idiosyncratic statistics about such weapons' use, possession, and seizures -- even if relevant to defendant's situation -- were properly excluded. Accordingly, there was no error of constitutional magnitude.
Defendant next asserts that the trial court erred in permitting Sergeant McKerry, the officer who secured the .45 caliber handgun, to offer an "unqualified expert opinion," and as a consequence, he was denied the right to a fair trial. During the cross-examination of McKerry, defense counsel asked if "the only way . . . [to] definitively find out if there were fingerprints on this weapon would be to do the fingerprint analysis," to which McKerry responded "[y]es." On its redirect examination, the State asked McKerry if, "based upon [his] training and experience in the field . . . it [would] be feasible in the condition this weapon was found to fingerprint it," to which the witness responded, "[n]o." The trial court held that the State's limited inquiry was permissible on grounds that defense counsel had opened the door to that line of questioning.
Defendant contends that a qualified expert -- not McKerry -- should have provided the information elicited by the State regarding the feasibility of detecting fingerprints on the handgun. Because defendant objected at trial, we review the trial court's ruling under the harmful error standard of review.
R. 2:10-2. Our task is to determine whether McKerry's testimony was so damaging to defendant's case to "raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
It is well-accepted that fingerprint analysis requires an expert opinion. State v. Fortin, 189 N.J. 579, 602 n.12 (2007), aff'd in part rev'd in part, 198 N.J. 619 (2009). Whether a witness is qualified as an expert rests within the sound discretion of the trial court, and will be reviewed only for "manifest error and injustice." State v. Townsend, 186 N.J. 473, 493 (2006) (quoting State v. Torres, 183 N.J. 554, 572 (2005)); Ryan v. Renny, 203 N.J. 37, 50 (2010).
The State does not purport, and the record does not suggest, that McKerry was qualified as an expert in fingerprint analysis. Nonetheless, even if it was tangentially erroneous to allow McKerry's lay opinion about fingerprinting to reach the jurors' ears, it was harmless and non-prejudicial because defendant was not convicted of either weapons offense charged. See State v. Pickett, 241 N.J. Super. 259, 265 (1990) (errors relating to counts for which defendant was acquitted are rendered moot).
Defendant's fourth point challenges the trial court's admission of the eleven motor vehicle summonses that were issued against him as a result of the events of February 25, 2007. He claims that their admission into evidence was unduly prejudicial and denied him a fair trial. Specifically, defendant submits that their admission constituted improper bolstering of the State's witnesses, rather than for the sole and proper purpose of facilitating the determination of the eluding charge by the jury.
Defendant concedes that because he was charged with second-degree eluding, the State was not only permitted, but required to prove that defendant's conduct "create[d] a risk of death or injury to any person." N.J.S.A. 2C:29-2(b). The statute creates a permissive inference that such a risk existed if defendant violated a motor vehicle offense under chapter 4 of Title 39. Ibid. It is further acknowledged that the trial judge was acting as the trier of fact on the motor vehicle charges.
When the State sought to admit the summonses into evidence at trial, defense counsel initially objected, but then withdrew his objection on assurance from the court that the summonses were only being admitted to prove they had been issued. It was not until the jury charge conference that defense counsel renewed his objection on grounds that the only relevant summonses were those issued by the officers who defendant was charged with eluding.
The trial court ruled that the summonses were corroborative of the officers' testimony at trial, but that it would consider a tailored instruction to defendant's specifications. However, defense counsel short-circuited the trial court's offer to consider a limiting instruction, saying "I don't, Judge . . . I don't want them highlighted any further than then having them in front of them."
During the jury instruction on the last element of the eluding charge, "that the flight or attempt to elude created a risk of death or injury to any person," the court specifically listed each of the six traffic violations from which the jurors could infer "risk of death or injury." These six offenses were singled out precisely because they were relevant to the eluding charge. The court also reminded the jury that whether defendant is guilty or not guilty of the aforementioned offenses would be decided by another court.
There was nothing improper about the trial court admitting the summonses into evidence and submitting them to the jury for their consideration on the eluding charge. See State v. Dixon, 346 N.J. Super. 126, 137-38 (2001). While defendant is correct that such summonses are not evidence of guilt, the court specifically instructed the jury of this fact and never suggested to the jury that the summonses could be regarded as such.
Even if it was error to submit every summons to the jury for their corroborative effect on the officers' testimony, the error was harmless beyond a reasonable doubt, since defendant was acquitted of eluding, the charge most directly linked to the evidence at issue. Moreover, although defendant argues that the summonses could have bolstered the officers' credibility generally, this court has taken into account a defendant's acquittal on the most serious charge in an indictment in determining that an error was harmless beyond a reasonable doubt. See State v. Pillar, 359 N.J. Super. 249, 285 (App. Div.), certif. denied, 177 N.J. 572 (2003). Here, defendant was acquitted of the most serious offense charged, second-degree eluding. Therefore, even if it was error to submit all eleven summonses to the jury for corroborative purposes, such an error raises no concern that defendant was deprived of a fair trial. See Macon, supra, 57 N.J. at 340.
Defendant also argues that Nisbet's testimony that he observed defendant make a "lung[ing]" motion inside his vehicle, "as if he was throwing something out the . . . window," was unduly prejudicial such that his convictions should be reversed.
Our task is to determine whether the putative error "'is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting R. 2:10-2).
New Jersey courts have held that a police officer need not testify as an expert to offer a proper lay opinion or explain matters of common knowledge in the field. See Neno v. Clinton, 167 N.J. 573, 582 (2001); State v. Nesbitt, 185 N.J. 504, 516 (2006) (an officer's observation of defendant "directly handing something to the alleged purchaser and receiving what appeared to be payment in return" was proper lay opinion); Trentacost v. Brussel, 164 N.J. Super. 9, 20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (a detective's opinion that a neighborhood is located in a high crime area is admissible lay opinion); Labrutto, supra, 114 N.J. at 197 (investigating officer permitted to testify as to the point of impact of an automobile collision he witnessed).
Nisbet offered a proper lay opinion rationally based upon his personal observation of defendant and sixteen years experience in the field. He did not testify as to defendant's guilt and his perceptions were derived from his personal view of defendant's body movements inside the vehicle. See id. at 198. As for Nisbet's remarks as to what defendant's movements sometimes signal, the trial court swiftly addressed defense counsel's objection, telling the witness to "[j]ust tell us what you saw him do."
Moreover, alleged errors relating to counts for which a defendant was found not guilty are generally rendered inconsequential by virtue of defendant's acquittal on those counts. Pickett, supra, 241 N.J. Super. at 265. Here, defendant was not convicted of the gun offenses. Even if, as defendant contends, the issue is not moot, the jury was clearly unpersuaded by Nisbet's testimony since defendant was only convicted of resisting arrest and aggravated assault. Therefore, we cannot conclude that the testimony was "clearly capable of producing an unjust result." R. 2:10-2.
In defendant's final point, he submits that the sentence imposed for third-degree assault was excessive. In particular, defendant disputes the trial court's allegedly improper consideration of defendant's perceived lack of remorse.
An appellate court reviews sentencing decisions under an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). We determine first, if the proper sentencing guidelines were followed; second, if the factual findings in support of the sentence imposed "[are supported by] substantial evidence in the record . . . 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). "An appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court," State v. Bieniek, 200 N.J. 601, 608 (2010), but will review whether the court's application of those factors "'[was] based upon competent credible evidence in the record.'" Ibid. (quoting Roth, supra, 95 N.J. at 364-65). We will not overturn a sentence unless it is so unreasonable that it "shocks the judicial conscience." State v. Paduani, 307 N.J. Super. 134, 148 (App. Div. 1998).
The court found three aggravating factors including not only defendant's perceived level of remorse, but also his risk of recidivism, N.J.S.A. 2C:44-1(a)(3); his prior criminal history, N.J.S.A. 2C:44-1(a)(6); and the need to deter "the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. Concluding that "the aggravating factors substantially outweigh the mitigating factors," N.J.S.A. 2C:43-6(b), the court sentenced defendant to a term of five years together with the maximum two and one-half year period of parole ineligibility on the conviction for third-degree aggravated assault.
Defendant properly notes that "a defendant's refusal to acknowledge guilt following a conviction is generally not a germane factor in the sentencing decision." State v. Marks, 201 N.J. Super. 514, 540 (1985); see N.J.S.A. 2C:44-1(c)(1). However, the trial court focused not only on defendant's apparent lack of remorse, but also on his criminal record and history of dangerous and violent behavior. The court laid a factual basis for each of the three aggravating factors and properly found that no mitigating factors were present. Because the sentence was within the statutory range and the court's findings were supported by "sufficient credible evidence in the record," we will not disturb it. Marks, supra, 201 N.J. Super. at 539; State v. Perry, 124 N.J. 128, 176 (1991).