May 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BULENT CEYLAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-02-00174.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Parrillo, Yannotti and Espinosa.
Tried by a jury, defendant Bulent Ceylan was convicted on November 3, 2000 of second-degree eluding, N.J.S.A. 2C:29-2b. Following his conviction, defendant fled the jurisdiction and therefore was not sentenced until August 24, 2006, having been extradited from Sweden in connection with an unrelated aggravated manslaughter charge, at which time he received a nine-year term of imprisonment. Defendant appeals and we affirm.
According to the State's proofs, around 1:00 a.m. on August 28, 1999, defendant fled the scene of an automobile accident that he was involved in while driving his Jeep Cherokee in Woodbridge. After several lane changes, defendant had struck the driver's side of a vehicle driven by John Muller, causing Muller's vehicle to careen to the right and defendant's vehicle to move far left where his Jeep struck the concrete center median. The accident caused extensive front-end damage to defendant's Jeep, including to one of his headlights. After defendant regained control of his Jeep, he immediately drove away. Meanwhile, Muller pulled his vehicle off of the road and called Woodbridge Police, informing them that he was hit by a white Jeep Cherokee that left the scene without stopping. Woodbridge Police Officer Richard Culton arrived at the scene, interviewed both Muller and another witness, and provided Woodbridge police dispatch with a description of the vehicle that left the scene.
After leaving the scene of the accident, defendant drove to a restaurant in Woodbridge to drop off a go-go dancer, whom he had met for dinner the evening before and who was with him during the accident. After returning her to her car, defendant headed northbound on the Garden State Parkway towards his home in Norwood, where he lived with his wife. Along the way, defendant was pulled over by the State Police, who allowed defendant to continue on his way after defendant explained that another vehicle had hit his car. Defendant then exited the Parkway at Exit 165, en route home.
Only a few miles from defendant's Norwood home, Haworth Police Officer Kevin Kiel observed defendant traveling towards him on Sunset Avenue with a broken headlight and extensive front-end damage. When Kiel attempted to stop defendant's vehicle, defendant accelerated to nearly sixty-five miles per hour, crossing onto the wrong side of Sunset Avenue and passing a vehicle in a no-passing zone with a speed limit of thirty-five miles per hour. Officer Kiel, who had activated all of his patrol car's sirens and emergency lights, including the roof lights, blinking lights, strobe lights and flashing lights, and had accelerated to seventy miles per hour, pursued defendant for about a mile, observing smoke, fluids and particles coming from the Jeep, until defendant made a sudden stop.
Kiel drew his firearm, approached the Jeep and ordered the driver to turn off the engine and throw the keys out of the window. Defendant complied and exited the vehicle, at which time he was frisked, handcuffed, advised of his Miranda*fn1 rights and placed in the rear of Kiel's patrol car. Kiel observed significant damage to the Jeep Cherokee's front-end, including the passenger-side headlight, side-view mirror, and fender, which were all missing. When Kiel questioned defendant why he did not stop, defendant claimed that he had not noticed Kiel pursuing him because he was arguing with his wife on his cell phone. Kiel neither checked defendant or the Jeep for a cell phone nor attempted to obtain defendant's phone records. Defendant also explained that his Jeep was struck by another vehicle while parked in a lot a couple of days ago.
At police headquarters, when asked how the damage occurred to his Jeep, defendant gave a different account, stating that he had fallen asleep on the Parkway and hit a barrier. Suspicious of defendant's explanation, Kiel transmitted local alarms to county and State police. Upon learning that defendant worked in Woodbridge, Kiel also contacted Woodbridge Police and eventually spoke with Officer Culton, who confirmed that a hit and run involving a white Jeep Cherokee occurred earlier that evening in Woodbridge. The damage to defendant's Jeep matched Culton's description of the Woodbridge accident. When Kiel confronted defendant with this information, defendant began to cry, explaining that he had fled the scene of the accident because a female was with him in the vehicle and he did not want her name mentioned in the police report for fear that his wife would learn of her presence.
At trial, defendant denied traveling over sixty miles per hour on Sunset Avenue and insisted that he had passed the slow moving pick-up truck legally. He claimed that he neither heard nor saw Kiel pursuing him because he was talking on his cell phone to his wife, from whom he was separated at the time. Defendant also denied that Kiel activated his patrol car's lights and sirens until just before defendant stopped his Jeep. He reiterated that he had earlier fled the scene of the Woodbridge accident because of the presence of the female in his car. He admitted, however, lying to Kiel when he claimed his Jeep was struck while parked in a lot and later that he had fallen asleep on the Parkway and hit a barrier.
Crediting the State's version, the jury convicted defendant of second-degree eluding. This appeal follows in which defendant raises the following issues:
I. THE TRIAL COURT ERRED IN ADMITTING A PLETHORA OF IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF OTHER BAD ACTS COMMITTED BY THE DEFENDANT, THE PREJUDICIAL VALUE OF WHICH OUTWEIGHED ITS PROBATIVE VALUE, AND DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9 AND 10.
A. The Trial Court Erred In Admitting Irrelevant Evidence In Violation Of N.J.R.E. 403.
B. The Trial Court Erred In Admitting Highly Prejudicial Other-Crimes Evidence In Violation Of N.J.R.E. 404(b).
C. Even If Evidence Of The Woodbridge Accident Were Not Admissible In Its Entirety, It Should Have Been Sanitized.
II. BECAUSE THE PROSECUTOR COMMITTED MISCONDUCT IN SHIFTING THE BURDEN OF PROOF AND LYING TO THE JURY, THE DEFENDANT'S MOTION FOR A MISTRIAL WAS IMPROPERLY DENIED. MOREOVER, THE COURT'S CURATIVE INSTRUCTION WAS TOO DEFICIENT TO NEGATE THE DAMAGE OF THE PROSECUTOR'S IMPLICATION AND FALSE STATEMENT. THEREFORE, THESE ERRORS, INDIVIDUALLY AND CUMULATIVELY, POTENTIALLY LED THE JURY TO DRAW IMPROPER INFERENCES AGAINST THE DEFENDANT, AND VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9 AND 10.
A. The Prosecutor Improperly Shifted The Burden Of Proof.
B. The Prosecutor Blatantly Misrepresented a Fact That Went to the Heart of the Case.
C. Defendant's Motion For A Mistrial Should Have Been Granted, And The Court's Curative Instruction Was Woefully Inadequate.
D. Suppression Motion.
III. THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTION. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.
IV. DEFENDANT'S SENTENCE IS EXCESSIVE.
We address these issues in the order raised.
At trial, defendant objected to evidence of his hit-and-run accident in Woodbridge as highly prejudicial and therefore inadmissible under N.J.R.E. 403. Following a pre-trial hearing, the court admitted this evidence under N.J.R.E. 404(b) to show defendant's motive in eluding police. Defendant now argues that even if relevant, the evidence should have been excluded under N.J.R.E. 403 because its probative value was minimal given the one hour and twenty minute lapse in time from the Woodbridge accident to the Haworth police pursuit, and was substantially outweighed by the risk of undue prejudice. Alternatively, defendant argues that the court improperly sanitized the evidence prior to admitting it. We disagree with both contentions.
It is well-settled that a trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). This standard governs review of the admissibility of other-crime evidence under N.J.R.E. 404(b), which is left to the discretion of the trial court, "'because of its intimate knowledge of the case.'" State v. Covell, 157 N.J. 554, 564 (1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). And appellate courts will only overturn a N.J.R.E. 403 determination upon "a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).
N.J.R.E. 404(b) provides:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Evidence of other crimes, wrongs or acts, is inadmissible "to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Stevens, 115 N.J. 289, 293 (1989). However, "[t]he Rule expressly permits such evidence to be admitted to prove other facts in issue," including motive. Ibid.
In State v. Cofield, 127 N.J. 328 (1991), the Supreme Court enunciated a four-part test for admission of evidence of other crimes or bad acts under N.J.R.E. 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. at 338.]
In order to satisfy the first-prong of the Cofield test, evidence must be relevant to a material issue that is genuinely disputed. Cofield, supra, 127 N.J. at 338 (citing Stevens, supra, 115 N.J. at 301). "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In criminal prosecutions, New Jersey courts generally admit a wider range of evidence when motive or intent of the accused is material." Covell, supra, 157 N.J. at 565 (citing State v. Rogers, 19 N.J. 218, 228 (1955)). This includes evidence "that 'tend[s] to shed light' on a defendant's motive" or "'tend[s] fairly to explain his actions.'" Ibid. (quoting Rogers, supra, 19 N.J. at 228). This inquiry favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976).
Under part two of the Cofield test, the evidence must be similar in kind and reasonably close in time. Cofield, supra, 127 N.J. at 338. However, "when motive is the object of the proffered evidence, similarity is not a requirement for admissibility." State v. Castagna, 400 N.J. Super. 164, 179 (App. Div. 2008). Moreover, the courts have upheld satisfaction of the temporal requirement in cases involving substantially extended periods of time between the prior bad act and the crime charged. See State v. Angoy, 329 N.J. Super. 79, 87 (App. Div.) (affirming the admission of evidence of an act occurring a month before the crime charged), certif. denied, 165 N.J. 138 (2000); Stevens, supra, 115 N.J. at 295-96 (affirming the admission of evidence of an act occurring over two years prior to the crime charged).
The third prong of the Cofield test requires that the State prove the other crime or bad act by clear and convincing evidence. Cofield, supra, 127 N.J. at 338; see also State v. Crumb, 307 N.J. Super. 204, 212, 231-32 (App. Div. 1997) (upholding admission of the defendant's letters, verses and drawings demonstrating his hatred towards African-Americans into evidence under N.J.R.E. 404(b) to prove the defendant's motive in murdering an African-American man), certif. denied, 153 N.J. 215 (1998).
The fourth and final factor required by Cofield applies the balancing test of N.J.R.E. 403, Cofield, supra, 127 N.J. at 338, excluding otherwise relevant "evidence if 'its probative value is substantially outweighed by the risk of . . . undue prejudice.'" Covell, supra, 157 N.J. at 568 (quoting N.J.R.E. 403). "In particular, evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Generally, "[t]he 'more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it' under N.J.R.E. 403." Id. at 569 (quoting State v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied, 102 N.J. 298 (1985)).
Evidence of motive, however, "require[s] a very strong showing of prejudice to justify exclusion." Id. at 570 (emphasis added). In fact, such evidence "is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant.'" State v. Carter, 91 N.J. 86, 106 (1982) (quoting 1 Wharton on Criminal Evidence § 170 at 316 (13th ed. 1972)). To underscore the court's tendency to admit motive evidence, the Court in Covell, supra, cited examples of highly inflammatory but admissible sexual conduct evidence, including evidence of a defendant's lewd acts as relevant to a charge of child abuse. 157 N.J. at 571 (citations omitted).
Here, the State has satisfied all four elements of the Cofield test. Second-degree eluding a police officer requires a defendant to have knowingly fled or attempted to elude police after the police signaled him to stop his vehicle. N.J.S.A. 2C:29-2b. Clearly, evidence of the hit-and-run Woodbridge accident occurring less than an hour-and-a-half before is highly relevant to defendant's state of mind during the eluding event and to his motivation for acting as such. Thus, it is material in establishing the elements of the crime of eluding and has nothing to do with defendant's predisposition for criminal behavior. Given defendant's contrary account that he was simply distracted and did not notice the pursuing officer, the probative value of the State's alternative explanation, namely that defendant did not want to get caught for leaving the scene of the Woodbridge accident, becomes even more significant.
As to Cofield's second prong, although the Woodbridge accident bears no similarity to the eluding incident save for the use of the same car common to both, the two events were close in time (one hour and twenty minutes apart) and geographically proximate (sixty miles away). Even more significant, the two incidents were part of a continuing episode with no intervening or superseding event taking place, beginning with defendant driving his vehicle immediately following the Woodbridge accident, dropping off his female companion, and continuing to drive to Haworth where the police pursuit occurred.
Third, there is clear and convincing evidence of defendant's involvement in the Woodbridge accident. Three witnesses testified, including the driver of the vehicle struck in Woodbridge, an objective eyewitness to the accident, and the responding police officer. More important, defendant himself testified that he had left the scene of the Woodbridge accident.
Lastly, we are satisfied that the risk of prejudice does not outweigh the probative worth of this evidence. We discern no improper inference of propensity to commit the crime of eluding from the mere fact that defendant left the scene of a motor vehicle accident. In any event, the court's clear and comprehensive instruction to the jury on the limited use of such evidence, Cofield, supra, 127 N.J. at 340-41, eliminated whatever potential for prejudice inhered in this evidence. Clearly, a court's limiting instruction on N.J.R.E. 404(b) evidence must "'be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Id. at 341 (quoting Stevens, supra, 115 N.J. at 304). Here, the court specifically cautioned the jury to limit use of the evidence to defendant's motive:
However, our rules do permit evidence of other wrongs or acts when that evidence is used for a narrow, specific purpose. In this case the State offers testimony on the issue of motive. That is, the State says that the defendant eluded Sergeant Kiel.
Whether this evidence does, in fact, demonstrate a motive for the behavior of the defendant is for you to decide. You may decide that the evidence does not demonstrate a motive for eluding and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate such a motive for eluding and use it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed other wrongs or acts he must be guilty of the present crime.
I have permitted introduction of this evidence only to help you decide the specific question of motive. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other wrongs or acts. [(emphasis added).]
These instructions are similar to those given in Covell, supra, 157 N.J. at 574-75, and State v. Cusick, 219 N.J. Super. 452, 466-67 (App. Div.), certif. denied, 109 N.J. 54 (1987). Defendant did not object to this charge. We therefore conclude that the court's instructions adequately "'explain[ed] precisely the permitted and prohibited purposes of the evidence,'" and was therefore proper. See Cofield, supra, 127 N.J. at 341 (quoting Stevens, supra, 115 N.J. at 304).
Just as the court's instruction helped minimize any potential prejudice, so did its efforts in sanitizing the challenged evidence. See State v. Barden, 195 N.J. 375, 390 (2008); State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999). On this score, the court excluded testimony about defendant's alleged intoxication at the time of the accident or any injuries sustained by Muller as a result of the accident. Moreover, defendant did not object to Officer Culton's testimony regarding defendant's relationship with the go-go dancer. In fact, defendant himself testified during direct examination that he had left the scene of the Woodbridge accident without stopping, so as to avoid his wife learning of the female passenger.
In sum, we discern no abuse of judicial discretion in admitting evidence of the Woodbridge accident under N.J.R.E. 404(b) as evidence of defendant's motive to commit the crime charged. Applying the balancing test of N.J.R.E. 403, we conclude that the probative value of the challenged evidence substantially outweighed its prejudicial effect, which was greatly reduced by the court's sanitization effort and its clear and proper instruction on the limited use thereof.
Defendant next contends that the court erred in denying his motion for a mistrial on the grounds of misconduct by the prosecutor who impermissibly suggested during defendant's cross-examination and summation that by not producing his cell phone records, defendant had not met his burden of proving that he was on the phone during the police pursuit. We disagree.
During cross-examination, the prosecutor inquired whether defendant had a copy of his cell phone bill, to verify that he was speaking on the phone during the police pursuit, as he had explained to Officer Kiel. Defense counsel objected, advising the court that the State had not subpoenaed the bill. The court allowed questioning to continue. Defendant then responded that he did not remember which company he used at the time of the accident and did not have a copy of his bill. Later, during summation, the prosecutor explained why the State did not subpoena defendant's phone records:
And about this being on a cell phone. Did we subpoena his records? No. I don't know [defendant's] cell phone company. We don't have the ability to simply get every cell phone company that there is and subpoena every record and go on a wild goose chase. We don't have that ability.
We've heard people talk about the power of the State and the authority of the State. We don't have it. Certainly [defendant] did not tell us who his cell phone company was.
Defense counsel objected, but the court allowed the State to proceed:
Now, if [defendant] was on a cell phone, he could have established that fact beyond any doubt at all. All he would have needed was a record of that cell phone call. We all get telephone bills. Many of you have cell phones. And common sense dictates if you were charged with eluding the police and you say I didn't know they were there, I was on a phone, you would hang on to that cell phone record. If you didn't have it, you would get it, and you produce it in court. Following the conclusion of summations, the court charged the jury, instructing them that "[t]he burden of proving each element of a charge beyond a reasonable doubt rests on the State. That burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or offer any proof relating to his innocence." The court also stated in its jury charge that the arguments and closings were not evidence:
Regardless of what counsel said or what I may say in recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts. Arguments, statements, remarks, openings and summation of the attorneys are not evidence and must not be treated as evidence. [(emphasis added).]
After the jury retired to deliberate, defense counsel moved for a mistrial based on the prosecutor's remarks about the missing cell phone records, which the court denied. Instead, the judge decided to give a supplemental curative instruction and defense counsel then recommended that a fair curative charge should be "that neither side had phone records or ever requested it." Consistent therewith, the court issued the following curative charge to the jury:
I do want to say one more thing to all of you. And that's with regard to a statement which was made in closing. The State suggested that they could not obtain the phone records. Both sides agree that neither side had phone records and neither requested them.
Defendant now claims that the court erred in not granting his motion for a mistrial.
"A mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice." State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Therefore, "[t]he trial court must determine whether the error can be cured by a cautionary instruction or other curative steps[,]" ibid. (citing State v. Winter, 96 N.J. 640, 646 (1984)), because our courts recognize that jurors are capable of following a curative instruction. Williams v. James, 113 N.J. 619, 632 (1989) (citing Winter, supra, 96 N.J. at 647). Ordinarily, a trial court's decision to deliver a curative instruction and avoid declaring a mistrial is entitled to deference, which a reviewing court will not disturb in the absence of an abuse of discretion that resulted in a manifest injustice. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010).
We perceive no abuse of discretion in the denial of defendant's mistrial motion in this case. "[T]he trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting[,]" Winter, supra, 96 N.J. at 647, concluded here that a curative instruction was adequate to preserve a fair trial, and her decision is entitled to deference. See ibid. Jurors, of course, are deemed capable of following a curative instruction. Ibid.
To be sure, prosecutorial comments suggesting that a defendant has a burden to produce exculpatory evidence are clearly improper. In reviewing whether such commentary warrants reversal, we consider several factors:
(1) whether defense counsel made timely and proper objections to the improper remarks;
(2) whether the remarks were withdrawn promptly; and
(3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.
[State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).]
In cases where a prosecutor's comments are deemed improper, courts have nonetheless declined to reverse a defendant's conviction because the trial court delivered curative instructions. State v. Jones, 364 N.J. Super. 376, 383 (App. Div. 2003); see State v. Jenkins, 349 N.J. Super. 464, 478 (App. Div.), certif. denied, 174 N.J. 43 (2002); State v. Sheika, 337 N.J. Super. 228, 250 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Here, the court did not rely solely on its general instructions on the presumption of innocence and burden of proof within its overall charge to the jury to erase any possible prejudice inherent in the suggestion that defendant failed to produce his cell phone records. Instead, the trial court issued a supplemental instruction, recommended by defense counsel in fact, that neither the State nor defendant requested or possessed defendant's cell phone records. The intended effect of this remedial instruction was to neutralize any adverse inference suggested by the State that defendant bore some burden of proof. The charge, satisfactory to counsel, effectively cured the prosecutor's erroneous comment.
Furthermore, the complained of error was harmless given the overwhelming proof of defendant's guilt. Whether defendant was on his cell phone or not at the outset of the police encounter, there is ample evidence that he knew he was being pursued by the police. Defendant engaged the police in a high-speed pursuit for eight-tenths of a mile on two residential streets, almost rear-ended a pick-up truck, traveled nearly double the speed limit, drove in the middle of the road with one headlight and drove on the wrong side of the road, all to evade capture by the police and avoid being held accountable for fleeing the scene of a vehicular accident shortly before the pursuit. In sum, defendant received a fair trial and no manifest injustice warrants disturbing his resultant conviction.
We have considered defendant's remaining issues and are satisfied that neither of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).