March 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMAR J. WEST, A/K/A RAHIM WEST, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0619.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Messano and Yannotti.
Following a jury trial, defendant Lamar West was found guilty of second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29- 2(a)(2) (count two); and the lesser-included disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1) (count three). The judge sentenced defendant to six years' imprisonment on count one; concurrent prison sentences of eighteen-months on count two; and two months on count three. Defendant raises the following arguments on appeal:
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT KNEW THAT IT WAS THE POLICE WHO WERE FOLLOWING HIM IN AN UNMARKED TRUCK, THE VERDICTS ON COUNTS ONE AND TWO OF THE INDICTMENT WERE AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. POINT II
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE POLICE'S CREDIBILITY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J.. CONST., (1947), ART. 1 PAR. 10. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On September 3, 2008, Officer William Gatling, Detective Imperiale*fn1 and Sergeant Ladimir Tavares of the Irvington Police Department were patrolling the area of 18th Avenue and 22nd Street in an unmarked burgundy Ford Expedition. The vehicle was equipped with lights on the visor, a strip light across the windshield, "wig-wags,"*fn2 and a siren. The three officers were in plain clothes but were wearing tactical vests with the word "police" on the front and back, and displayed their badges over the vests.
The officers "observed a blue Buick traveling . . . above the speed limit . . . of [twenty-five] miles an hour[,]" and "perceived it to possibly be a stolen vehicle, due to the way it was driving carelessly." They followed the vehicle as it drove "erratically" and passed "double-parked vehicles at a high rate of speed" in a residential neighborhood. The officers activated their lights and sirens and "were within maybe two car lengths of the vehicle."
Gatling testified that when the lights were activated, the driver of the Buick, whom Gatling identified as defendant, pulled the vehicle to the side of the road and extended his hand suggesting he was asking the officers if "[they] wanted him to pull over right there." Gatling exited the unmarked vehicle, and, as he began to approach the Buick, defendant drove off and "continued to . . . drive erratically around [other] vehicles" and "blew the stop sign" at the corner of 19th Avenue and Grove Street, a major intersection. Gatling "immediately" radioed headquarters to advise of the situation and provided the vehicle's plate number and direction of travel.
At trial, a tape of the dispatch was played, and Gatling testified that Lieutenant Young could be heard directing headquarters to tell the officers to abort the pursuit. Gatling further testified that he never heard such instructions, and it was likely they were not relayed because of competing broadcasts he was making regarding the pursuit.
The officers continued to follow defendant as he drove erratically down 19th Avenue toward Eastern Parkway. When defendant reached the intersection, he attempted to pass another vehicle but was unable to negotiate the turn and crashed into a fence separating Eastern Parkway and the Garden State Parkway (GSP). Gatling saw defendant, his face bleeding, exit the vehicle, look at the officers and crawl under the GSP fence in an attempt to flee. Gatling and Tavares crawled under the fence and continued to pursue defendant on foot while yelling, "stop, police," several times.
At the same time, State Police trooper Russell Johnson was transporting a prisoner in a marked vehicle north on the GSP when he observed "two to three" officers pursuing someone on foot alongside the road. Johnson attempted to stop defendant by positioning his vehicle in front of him, but defendant ran around the car. Johnson exited his car and yelled, "[s]top, police," but defendant kept running. Johnson caught defendant and tackled him to the ground.
Gatling and Tavares arrived within seconds and handcuffed defendant as he continued to flail his arms. After processing, and despite his refusal, defendant was taken to Beth Israel Medical Center where he received six stitches above his eyebrow. On cross examination, Johnson acknowledged that he never activated his lights or his vehicle's camera during the incident as required by State Police protocol.
Defendant testified he did not know he was being pursued by police until Johnson pulled up behind him and yelled, "Police." He "immediately stopped running[,]" and was subsequently tackled by the trooper. He testified that immediately thereafter "the cops" came alongside, and he did not resist arrest at any time.
Defendant further testified that he saw a black truck pull up behind him, almost hitting his bumper, but that he did not clearly see the occupants or whether they were wearing tactical vests or badges. Defendant denied signaling the truck, and he did not see any lights, hear any sirens, know that his pursuers were police officers, or disobey any commands to stop.
Rather, defendant claimed he was trying to park when he saw the truck drive up from behind. He thought he was in danger because he was in an area where he previously had gotten into a verbal argument with another man, and he was "in fear for [his] life." Defendant admitted running several stop signs but testified he would have stopped had he known the police were chasing him.
Defendant argues the verdicts on eluding and resisting arrest by flight were against the weight of the evidence because "the [S]tate failed to prove an essential element of the offenses . . . beyond a reasonable doubt" since defendant "did not know that the people who were chasing him were police." Defendant further argues the jury instructions on mistake of fact were insufficient. Both arguments are unpersuasive.
"An appellate court will not consider an argument that a jury verdict is against the weight of the evidence unless the appellant moved for a new trial before the trial court on that ground." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) (citing R. 2:10-1), certif. denied, 151 N.J. 470 (1997). Defendant made no such motion before the trial judge.
"[W]e can proceed to the merits, if we choose, in the interest of justice." State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). So, for the sake of completeness, we consider the merits of defendant's argument.
As defendant correctly contends, the State must prove beyond a reasonable doubt that defendant knew he was fleeing from law enforcement officers to support a conviction for eluding and resisting arrest by flight. "[T]he offense of eluding consists simply of 'knowingly' fleeing or attempting to elude a law enforcement officer by motor vehicle after receiving a signal to stop." State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). "To be guilty of fourth-degree resisting arrest, a defendant must have reason to know that a law enforcement officer is attempting to effect the arrest . . . ." State v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994).
"A person acts knowingly with respect to the nature of his conduct . . . if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2(b)(2). "[E]vidence of an actor's mistaken belief relates to whether the State has failed to prove an essential element of the charged offense beyond a reasonable doubt." State v. Sexton, 160 N.J. 93, 106 (1999). Such evidence is not a "defense," but instead is "an attack on the prosecution's ability to prove the requisite culpable mental state for at least one objective element of the crime." Id. at 99-100.
Here, there was ample proof that defendant was aware those attempting to stop his vehicle were police officers. Gatling testified that defendant pulled the car over, and when Gatling emerged from his vehicle with lights flashing and siren sounding, and dressed in a tactical vest with his police badge exposed, defendant sped off. Defendant continued to drive away until his car collided with a fence. Thereafter, defendant continued to flee until tackled by Johnson.
The jury was entitled to reject defendant's self-serving testimony regarding his "mistake." See Saunders, supra, 302 N.J. Super. at 524 ("The jury is free to believe or disbelieve a witness's testimony."). Therefore, "we find no 'miscarriage of justice under the law,' R. 2:10-1, because the 'trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (quoting Smith, supra, 262 N.J. Super. at 512 (quoting State v. Carter, 91 N.J. 86, 96 (1982))).
As to the jury charge, defendant never objected to the instructions on "mistake of fact" given by the judge.
Therefore, we will reverse only if it were plain error. See State v. Afanador, 151 N.J. 41, 54 (1997).
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The alleged error must be considered in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Though an erroneous jury charge is a "poor candidate for rehabilitation under the plain error theory[,]" Jordan, supra, 147 N.J. at 422 (citation omitted), any alleged error must be assessed in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.
At trial, the judge complied with defendant's request to charge "mistake of fact" and gave the following instruction:
In this case, the Defendant contends that he is not guilty of eluding or resisting arrest by flight because he mistakenly believed that the car behind him was not a police vehicle, and he did not understand that the police were trying to stop him, until he was confronted with the State Trooper.
If you find that the Defendant held this belief [then] he could not have acted with the state of mind that the State . . . is required to prove beyond a reasonable doubt.
If you find that the State has failed to prove beyond a reasonable doubt that the Defendant did not believe that he was being stopped by the police, you must find him not guilty of the offenses of eluding and resisting arrest by flight.
However, if you find that the State has proven beyond a reasonable doubt that the Defendant did understand that the police were trying to stop him, and you find that the State has proven all of the elements of each of these two offenses beyond a reasonable doubt, then you must find the Defendant guilty of the offenses that were charged.
These instructions followed the Model Jury Charge for "Ignorance or Mistake." See Model Jury Charge, "Ignorance or Mistake" (2007). Defendant does not contend otherwise.
Instead, defendant argues the instructions "failed to explain how such a mistake could impact the requisite element for eluding and for resisting arrest by flight." The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). As the Court has noted, "[t]he process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers." State v. R.B., 183 N.J. 308, 325 (2005). Defendant's contention regarding his mistaken belief was obvious, highlighted by defense counsel in summation, and the instructions as given adequately provided the jury with proper guidance by which to assess the evidence and apply the proper burden of proof.
Defendant contends the prosecutor impermissibly vouched for Gatling's credibility in her summation, citing the following comments:
There's no picture of the vehicle. If the officers wanted to make this a slam dunk case, two retired officers, an officer of eight, nine years, they're going to come and say, hey, I was driving a marked vehicle. But they didn't, they said I was driving a maroon Ford Expedition.
They could have said or I was in [an] unmarked Crown Vic. They could have made this case a lot stronger if they wanted to lie, but the fact is they're telling the truth.
There were three people on [defendant], and if the officers wanted to embellish and make something up, they would have said, yeah, no. There wasn't three, it was just . . . the trooper who actually caught up to him, and was trying to handcuff him, and that's the resisting part.
Defense counsel did not object, and, therefore, the plain error standard applies. R. 2:10-2.
"We have consistently recognized that prosecutors are afforded considerable leeway" and "are expected to make vigorous and forceful closing arguments to juries." State v. Smith, 167 N.J. 158, 177 (2001). "[I]n order to justify reversal, the [prosecutorial] misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" Id. at 181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). "Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.
"A prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied 182 N.J. 148 (2004); see also State v. Bradshaw, 195 N.J. 493, 510 (2008) ("Nor should the prosecutor vouch for the credibility of a witness.").
Here, defense counsel made the following remarks in his closing argument:
For you to believe the State's case and their explanation of Count Three, you must believe that this young man, while lying on the ground with approximately 500 pounds on top of him was able to, as Detective Gatling said, get up out of their grip, and resist violently.
That is what you must believe. And that's important, because one of the things you have to judge is the officers' credibility. Is it credible that this young man is on the ground, with his face being pressed into the pavement, with Trooper Johnson -- Trooper Johnson is not a small guy.
Now, police told you they were in an unconventional vehicle, they were not in uniforms. A[s] you sit here today, can any of you realistically tell what that vehicle looked like[?] Can you tell what Lamar West saw on that date[?]
Did you see a picture of that vehicle[?] Did you see where the lights were claimed to be[?] Did you see any of that[?] You don't have to take my word about that. You could take Detective Gatling, the six foot tall 245 pound man, who was on top of Mr. West, with another officer who weighed 190 pounds, and another officer weighing 165 pounds, while he resisted.
You could take the officer's word; you don't have to take my word about that. But I would think one of the things you need to see is what their vehicle looked like and what this young man saw on that date, because that is the key to this case.
Lamar West is not guilty. Everything will rest on the credibility of Detective Gatling. All he had to [do was] take the stand and say is he arrested this young man.
That's it. Why d[id] he have to get into [defendant] violently resisted, why did he have to do all that . . . [?]
Though "'[g]enerally, remarks by a prosecutor, made in response to remarks by opposing counsel[,] are harmless,'" we assess "statements concerning the credibility of police officers very carefully." Hawk, supra, 327 N.J. Super. at 284-85 (quoting State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993)). "A prosecutor may not suggest police officers will suffer penalties if a jury is not convinced by their testimony." Ibid. Nor may a prosecutor suggest a police officer had no motive to lie and that doing so would hurt his professional career. State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994).
Placed in context, the prosecutor's remarks were predominantly a reasonable and specific response to defense counsel's attempts to discredit the credibility of the officers. Her comments regarding the officers' status as "retired," and her reference to one officer's term of service, closely-toed the line of impropriety. However, the prosecutor never personally vouched for the officers' credibility, nor did she suggest the officers had no motive to lie or would face punishment if they did.
Moreover, the trial judge instructed the jurors that what the attorneys said in their closings was not evidence and that the jurors were to decide the case by relying "only on [their] understanding and [their] recollection of the evidence that was admitted during [the] trial." We have no reason to believe the jury did not follow these instructions, and, given the overwhelming proof of defendant's guilt, the prosecutor's comments did not deny defendant a fair trial.