On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-09-00631.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Payne and Reisner.
In connection with an incident in which he directed a racial slur at an African-American driver, threatened to shoot him, and then persisted in tailgating his car for several miles, defendant John Burnett Memmel was convicted of: second-degree bias intimidation, N.J.S.A. 2C:16-a1(3), threat to kill, N.J.S.A. 2C:12-3b, and unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e. He received an aggregate sentence of five years in prison.
Defendant contends that the verdict was against the weight of the evidence; the trial court abused its discretion in permitting a witness to testify and in limiting defendant from introducing certain character witness testimony; and the judge should have sentenced him to probation. Finding no merit in any of these contentions, we affirm.
This was the most pertinent trial evidence. On the evening of July 13,
2007, Quran D. Vaughn (Quran or QV), his fiancee Eboni*fn1
Barnes, and their two children were in their mini-van
traveling south on Route 206, a two-lane road. Defendant's pickup
truck emerged from a side street and made a sudden left turn directly
in front of their van. Quran, who was driving, swerved left into the
lane of oncoming traffic to avoid a collision, and defendant's truck
swerved right, onto the shoulder of Route 206. The Vaughn vehicle then
passed defendant's truck and returned to the right-hand lane.
Defendant followed them, and, according to Quran Vaughn, defendant was tailgating as he followed their vehicle. At the intersection of Routes 206 and 518, the van stopped behind several other vehicles waiting for a red light. Defendant moved into the left-turn lane, but although there were no cars in front of his vehicle, he did not proceed up to the light. Instead, his truck "slowly approached" the left side of the van, with the windows down. When the truck pulled even with the van, defendant pointed "a big, black gun" out the window, aimed at Quran's head. As defendant pointed the gun he asked "Do you want to get shot, nigger?"
According to Eboni, at that point, she believed that Quran was in danger of "hav[ing] his brains blown out right before my eyes" and everyone in the van was "terrified." The couple's six-year-old son asked his mother if the man was going to shoot them. Quran testified that he believed he was about to be shot and possibly killed. Quran, who is African-American, also testified that the use of the racial slur, together with the gun being pointed at him, caused him to feel "intimidated."*fn2 He believed that defendant targeted him for this abuse because of his race.
Trying to get away from defendant, Quran pulled the van into an abandoned gas station at the corner of Routes 518 and 206, and then turned back onto Route 206, believing that defendant would by then have made the left turn onto Route 518. However, defendant instead swerved back into the right lane of Route 206 and began following the van down Route 206 toward Princeton. According to Quran, defendant's pickup truck "was definitely on my heels and I was scared." When they finally reached Princeton, with defendant's truck still following, Quran turned the van into the parking lot of the Princeton Borough police station and shouted to a police officer that defendant had a gun in his truck. The officer apprehended defendant, whose vehicle was stopped at a red light near the police station.
In defendant's car, the police found an imitation gun, painted black to look like a real weapon. The State also presented testimony from Cathy Moldenhauer, a State trooper who, while off-duty, had observed defendant's vehicle driving erratically on Route 206 and called 9-1-1 to report it.
The defense presented testimony from defendant's wife and from the arresting police officer, designed to show that defendant may have been under the influence of painkillers at the time of the incident. The arresting police officer testified that, when arrested, defendant evinced slow, rambling and slurred speech but was polite and cooperative.
Defendant did not testify, and the defense did not contest that he directed the racial slur and the threat to Quran Vaughn. Nor did the defense contest that defendant possessed an imitation gun. Instead, the defense theory was that this was a "road rage" incident rather than a racially motivated attack. In his closing, counsel argued that defendant was a fair-minded and ...