October 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL T. CHRISTOFFERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-07-0544.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Messano and Espinosa.
Following a jury trial, defendant Daniel T. Christofferson was found guilty of first-degree carjacking, N.J.S.A. 2C:15-2(a); third-degree theft of an automobile, N.J.S.A. 2C:20-10(c); two counts of second-degree aggravated assault while eluding a law enforcement officer in a stolen vehicle, N.J.S.A. 2C:12-1(b)(6); and two counts of second-degree assault by auto while under the influence of alcohol and within 1000 feet of school property, N.J.S.A. 2C:12-1(c)(3)(a). After merging the theft charge with the carjacking charge, the judge imposed a sentence of twenty years imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He imposed concurrent sentences on the remaining counts of the indictment.
Defendant raises the following issues on appeal:
THE JUDGE ERRED IN GRATUITOUSLY CHARGING THE JURY THAT IT MAY INFER CONSCIOUSNESS OF GUILT IF IT DETERMINED THE DEFENDANT PURPOSELY MADE FALSE STATEMENTS TO THE POLICE, AS THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT MADE INTENTIONALLY FALSE STATEMENTS. . . .
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. . . . (Not Raised Below)
UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN SENTENCING THIS YOUTHFUL DEFENDANT TO AN AGGREGATE 20-YEAR TERM OF IMPRISONMENT, SUBJECT TO NERA, ON HIS FIRST CRIMINAL CONVICTIONS, BY FAILING TO FOLLOW THE GUIDELINES IN STATE V. ZADOYAN. . . .
In a pro se supplemental brief, defendant has raised the following additional issues:
THE DEFENDANT'S CONFESSION WAS IMPROPERLY ADMITTED BASED ON THE FACT THAT THE DEFENDANT'S CONFESSION WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY; FURTHER, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT REQUIRING RECORDATION OF THE PRE-INTERVIEW PHASE OF POLICE CUSTODIAL INTERROGATION OF THE DEFENDANT BY THE RESPONDENT PURSUANT TO SUPREME COURT RECOMMENDATION[S] IN [STATE V. COOK] AND N.J. COURT [RULE] 3:17 ET SEQ.
A MOTION TO SUPPRESS THE EVIDENCE IN THIS MATTER SHOULD HAVE BEEN ENTERED AND GRANTED
THE VERDICT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE AND COUNSEL[']S AND DEFENDANT DANIEL CHRISTOFFERSON['S] MOTION FOR A NEW TRIAL AND OR FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED
THE CONVICTION MUST BE OVERTURNED BASED ON THE FAILURE TO INSTRUCT THE JURY PROPERLY ON CONSTRUCTIVE POSSESSION We have considered these arguments in light of the record and applicable legal standards. We affirm.
The testimony at trial revealed the following. On May 22, 2008, at approximately 10:00 p.m., Johanna Cwiek was driving her friend to a fast food restaurant when, while stopped at a red light on Route 27, she felt an impact to the front of her car. Cwiek saw a "cab flip over and land by the light post," and her car was pushed onto the curb. She crawled out of the passenger side of her car as police and emergency vehicles arrived. Cwiek was taken to the hospital, treated for minor head injuries and released.
Linda Smith was also driving on Route 27 when her car was impacted from behind by the cab, which then swerved into the opposite lane of traffic and overturned. Smith also suffered injuries that required hospitalization.
Vincent Sabo, a New Brunswick police captain, was driving his unmarked police vehicle on Route 27 in the left lane. He observed a white cab pass him on the right side going approximately 70 miles per hour, and shortly thereafter saw smoke coming from an intersection ahead. Sabo activated the lights of his car and positioned it to block the flow of traffic. Using a school-zone map, Sabo identified the McKinley School as being within a 1000-foot radius of the accident.
Franklin Township police officer Jonathan Tuchmatulin responded to the scene of the accident which was near the border with New Brunswick. Tuchmatulin knew from his dispatcher that the incident might "possibly be a carjacking and that witnesses reported . . . the suspects . . . were seen running from the scene." A woman waved Tuchmatulin over and advised that the suspects might be in her back yard. The officer found defendant hiding in the "brush" in the back yard. When defendant refused to come out, Tuchmatulin and another officer "pulled him out." Defendant appeared to be intoxicated.
Sergeant Darin J. Russo also responded to the accident scene. He saw a young woman "sitting on the curb of [Route] 27." She identified herself as Brooke Williams, a passenger in the cab. Williams told Russo defendant was the driver of the cab. Russo also received a report of a carjacked cab at 447 Somerset Street, "a couple miles north of where the accident was." Russo and other officers responded to that location and retrieved pieces of a broken cell phone from the street. Russo directed another officer to locate the victim of the carjacking, Obaid Rahman, and return him to the scene of the accident. Rahman identified defendant as the man who carjacked his cab.
Rahman further testified that when he arrived earlier at 447 Somerset Street to pick up a fare, a young man and woman came out of the house and entered the back seat of his cab. Rahman advised it was company policy to receive payment before proceeding to the destination. The young man refused, cursed Rahman and moved into the front seat of the cab. Rahman was scared, exited the cab and tried to call the dispatcher on his cell phone. The young man exited the cab, grabbed the phone, "broke it" in half, threw part of it on the street, and drove away in the cab. Rahman hailed a passing cab from another cab company; that driver called the police who responded in a few minutes. Rahman could not identify defendant in court.
After his arrest, defendant told one of the officers that he was in the cab that flipped over and was injured. He was taken to the hospital, a nurse withdrew blood, and subsequent tests revealed defendant's blood alcohol content was .14.
Detective Gregory Price took a recorded statement from defendant in the hospital which was played for the jury. Defendant admitted calling the cab because Williams wanted to go home and arguing with the driver because he had no money to pay the fare. Defendant claimed that he "wasn't trying to hurt nobody," but merely wanted to drive Williams home. Defendant claimed he "was drinking a little bit," and could not recall what happened until the cab "flip[ped] over and somebody opened the door saying get out." Defendant's decision to drive the cab "was not planned" or "premeditated."
Defendant elected not to testify but did call an investigator, Noah Joseph, who had interviewed Rahman in January 2009 about the carjacking. Joseph testified that Rahman claimed he was not afraid of defendant and that he could not identify him because "it happened so long ago."
During the charge conference before summations, the following exchange took place:
Judge: Is it going to be an argument about purposeful false information to the police? Because there is case law that would indicate that a jury could use purposeful false information to infer consciousness of guilt.
Prosecutor: Well --Judge: I don't know if I'm going to be hearing that or not Prosecutor: You'll be hearing from me.
Judge: That's why I'm asking.
Prosecutor: In my closing I will be.
Judge: That's what I'm anticipating, the closing.
Prosecutor: I think that would be an appropriate charge . . . .
Defense counsel "vehemently object[ed]" after hearing the proposed charge. Before stating the basis for her objection, however, the judge continued, "I'm anticipating . . . given the nature of the case, that . . . the State's going to argue that parts of the statement were false. Parts of it true, parts of it false." Defense counsel then said, "Well, that's your ruling . . . I certainly understand."
In his closing instructions, the judge told the jury:
In this case the State's alleging that the Defendant purposely gave false information to the police knowing [it] to be false. The State is alleging that the statement shows the Defendant's consciousness of guilt.
You may reasonably infer Defendant's consciousness of guilt from any attempt to avoid accusation or arrest. You may reasonably infer . . . Defendant's consciousness of guilt when the Defendant purposely gives [a] false statement, knowing it's false, to the police. But, you're not required to draw this inference. This is an inference that may be drawn, but you're not required to draw it.
Defendant argues the charge was improper because the State "failed to provide any evidence that [he] purposely lied in his statement."
Model Jury Charge (Criminal), "Statement of Defendant," (rev'd. June 14, 2010), advises jurors that "[i]t is [their] function to determine whether or not the statement was actually made by the defendant, and, if made, whether the statement or any portion of it is credible." The following guidance is offered to the judge in a footnote thereafter:
If the State alleges the defendant purposely gave a false statement, knowing it was false, and the State wishes to use the statement to show a consciousness of guilt on the part of the defendant, you should consider altering this portion of the charge.
No suggested language is supplied.
Here, the judge cited three cases and based his instructions on their holdings. In State v. Mann, 132 N.J. 410, 421-22 (1993), the Court concluded that evidence of the defendant's suicide attempt was admissible to prove consciousness of guilt. The Court, however, hastened to add that "the evidence must be sufficient to support the inference," id. at 422, and the judge must instruct the jury on its proper use, as well as "alternative explanation[s]," which, if credited by the jury, prohibit an "infer[ence] of consciousness of guilt." Id. at 424. A second case cited by the judge, Hill v. Pinto, 394 F.2d 470, 473 (3rd Cir. 1968) (citing 2 Wigmore, Evidence, § 278 (3d ed. 1940), recognized the basic proposition that "[t]he making of . . . an admittedly false statement [i]s in itself evidence of guilt."*fn1
The footnote in the Model Charge is intended to alert trial judges of the need to alter its language if the State's introduction of the defendant's statement, or part of it, is not premised upon its truthfulness. If for example the State intends to place a defendant's statement before the jury and, at the same time, prove its falsity through other evidence, the model charge as written must be altered because the prosecution is not suggesting the statement was "credible." The import of this evidence may be simply to affect the defendant's credibility in general, or, it may be to suggest that defendant provided false information to avoid "[a]ccusation and the threat of prosecution." Mann, supra, at 422.
Thus, we have no quarrel with the propriety of giving a carefully-tailored charge in the proper case because it serves two purposes. First, it highlights for the jury the State's hybrid use of a defendant's statement, i.e., that some of the statement directly inculpates the defendant and other portions contain lies by which defendant sought exculpation. Second, if appropriate, the jury may infer defendant's consciousness of guilt from the purposely false statements.
Defendant's essential point here is that the facts did not support the consciousness of guilt inference. Indeed, as defendant notes, the State acknowledged that he provided the statement to Price while somewhat intoxicated and handcuffed to a bed in the hospital, i.e., he was already apprehended. In his summation, the prosecutor commented generally on defendant's statement by telling the jurors, "You were presented with a statement from a Defendant who basically admitted those things that he cannot deny, and denied those things he cannot admit." The prosecutor specifically argued that defendant "can't admit that he hurt somebody," and "wants to make it all seem that he's just trying to get Brooke home," i.e., that he did not "premeditate" taking the cab. However, the prosecutor never argued that these two falsehoods were evidence of defendant's "consciousness of guilt," or that in making them, defendant was attempting to avoid "accusation and the threat of prosecution." These falsehoods were, instead, statements affecting defendant's credibility generally or attempts by defendant to extricate himself from the most serious charges. In short, we would agree that the charge should not have been given under the circumstances.
Having said that, we are certain beyond any doubt that the instruction did not affect the outcome of this case. We recognize that a flawed jury instruction is generally not harmless error. See State v. Simon, 79 N.J. 191, 206 (1979) ("[T]he rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards designed to assure a fair trial.")(quotation omitted). Yet, as the Court noted,
This does not mean, of course, that an error involving important procedural aspects of a criminal trial can never be harmless. If such an error has not obviously detracted from securing and maintaining a fair and unbiased jury, or has not demonstrably impaired the ability of the jury to deliberate impartially upon its verdict, a conviction should not be reversed. Similarly, if the error does not deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence, the conviction should not be impugned. [Id. at 207 (citations omitted).]
Likewise, we have said that when an instruction is given that "correctly states the law, but is inapplicable to the facts or issues before the court . . . prejudice must be shown in order to constitute it reversible error." State v. Moore, 330 N.J. Super. 535, 542 (App. Div.) (quoting State v. Thomas, 76 N.J. 344, 365 (1978)), certif. denied, 165 N.J. 531 (2000).
In this case, the evidence of defendant's guilt was overwhelming. The prosecutor's closing argument appropriately focused the jury's attention on the credibility, or lack thereof, of defendant's claims regarding his intent in stealing the cab or causing injury. The instructions did not require the jury to draw any inference from defendant's false statements. In sum, we conclude the jury instructions were harmless and provide no basis to reverse defendant's conviction.
The arguments made in Point II and in defendant's supplemental pro se brief are of insufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following brief comments.
The judge provided the then-existing model charge regarding defendant's election not to testify, i.e., "[defendant is] entitled to the presumption of innocence even if (he/she) chooses not to testify." The model charge was changed after the trial in this case and now provides "[defendant is] presumed innocent whether or not he chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not To Testify," (rev'd. May 4, 2009). The use of the prior charge is not plain error. State v. Miller, 205 N.J. 109, 127 (2011).
In Points I and II of his pro se brief, defendant essentially challenges the admissibility of the statement he gave to Price. He contends that he did not knowingly and voluntarily waive his right to remain silent and a pre-statement interrogation was not recorded in violation of Rule 3:17.
We need not recite at length the testimony at the pre-trial evidentiary hearing concerning admission of the statement. It suffices to say that the judge considered all the relevant facts and determined defendant made a knowing, intelligent waiver of his Miranda*fn2 rights and "agreed to speak with the police." We defer to the judge's factual findings. State v. Nyhammer, 197 N.J. 383, 409, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Moreover, the judge properly applied "the totality-of-the-circumstances test," and we find no reason to reverse. Id. at 408.*fn3
Lastly, as noted above, the proof of defendant's guilt was overwhelming and the judge properly denied his post-verdict motion for judgment notwithstanding the verdict or for a new trial. The instructions regarding possession of a motor vehicle were proper.
Defendant was eighteen years old when he committed these crimes and had just turned nineteen when sentenced. Although this was his first adult conviction, defendant's juvenile record was comprised of a virtually unbroken string of offenses beginning in 2000. The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the possibility that defendant would commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record and seriousness of offenses for which he had been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence); and no mitigating factors, N.J.S.A. 2C:44-1(b). On the carjacking charge, the judge sentenced defendant to twenty years in prison with an 85% period of parole ineligibility.
Defendant's sentence was the midpoint of the permissible sentencing range for carjacking. See N.J.S.A. 2C:15-2(b) (setting the ordinary term of imprisonment between 10 and 30 years). Defendant contends, however, that the judge failed to follow our holding in State v. Zadoyan, 290 N.J. Super. 280 (App. Div. 1996), regarding factors to be considered in imposing sentences for carjacking. However, as we noted in State v. Leonard, 410 N.J. Super. 182, 189 (App. Div. 2009), certif. denied, 201 N.J. 157 (2010) (citation omitted), "the analytical premise underlying Zadoyan, the absence of a presumptive term for the crime of carjacking, . . . has been substantially weakened in light of the Supreme Court's abolition of presumptive sentencing in State v. Natale, 184 N.J. 458, 487 (2005)."
Our review of the trial judge's sentence is limited. An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. Id. at 608; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Like the defendant in Leonard whose first adult conviction resulted in a twenty-year sentence for carjacking, Leonard, supra, 410 N.J. Super. at 189-90, defendant had an extensive juvenile record that fully supported the judge's finding of aggravating sentencing factors three, six and nine. The crimes of which he was convicted involved violent harm to some, and the potential for even greater harm to others had the cab not overturned. We find no basis to disturb the sentence imposed.