June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAHMAL MCNEIL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-08-2022.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2012
Before Judges Grall and Alvarez.
A jury found defendant Jahmal McNeil guilty of second-degree eluding, N.J.S.A. 2C:29-2b. The judge sentenced him to a ten-year term of imprisonment with a five-year term of parole ineligibility, and imposed the appropriate fines, penalties and assessments.*fn1 Defendant appeals. He contends that his sentence is excessive and claims the trial court committed four other errors warranting reversal of his conviction. Specifically, he argues:
I. THE COURT ERRED BY ADMITTING 404(b) EVIDENCE WITHOUT A HEARING. (Not raised below).
II. INFORMATION RECEIVED FROM THE INFORMANT CONSTITUTED INADMISSIBLE HEARSAY. (Not raised below).
III. THE COURT FAILED TO PROVIDE PROPER LIMITING TO INSTRUCTIONS WITH RESPECT TO ITS ADMISSION OF EVIDENCE REGARDING PRIOR CRIMINAL ACTIVITY. (Not raised below).
IV. THE COURT ERRED BY NOT INSTRUCTING THE JURORS THAT THEY WERE ENTITLED TO A READ BACK OF THE WITNESS'S TESTIMONY. (Not raised below).
V. DEFENDANT'S SENTENCE WAS EXCESSIVE.
During the early morning hours of June 23, 2010, Detectives Christopher Smith and Robert O'Neil of the Essex County Prosecutor's Office were on duty but not in uniform.
They were riding in an unmarked vehicle that was equipped with emergency lights and a siren.
The detectives had "information about a specific vehicle possibly being connected to illegal activity." The car was "a 2010, a new, black, Chevy Camaro." They did not have a license plate number. At about 3:30 a.m., they saw a Black Camaro driving toward them on South 13th Street in Newark. The detectives were traveling on the two-lane street in the opposite direction, and the cars passed one another. There was one person in the Camaro, and Detective Smith recognized him as defendant. He knew defendant and others from the community from having worked in the area, but they had not had any personal interactions prior to June 23.
Although the detectives did not know whether defendant was driving the Camaro referenced in the tip they had received, they turned and followed it, trying to close the distance and get a license plate number. Defendant accelerated suddenly, made a right turn at a stop street without stopping and headed west. After seeing defendant fail to stop, the detectives followed, used the car's strobe lights mounted at the top of their windshield and sirens to signal defendant to stop.
When defendant ignored the signals, the detectives alerted other officers that they were attempting to make a stop. At that point, defendant was driving at a speed of about fifty miles per hour in a twenty-five-mile per hour zone. As the detectives pursued defendant, they were joined by two other cars of officers who also had activated their lights and sirens. At that point, they were on Springfield Avenue. Despite the hour, it was busy with other cars and pedestrians. At the Springfield Avenue intersections with traffic lights, the detectives had to slow down in order to avoid accidents with cars that were passing through with the benefit of a green light. Out of concern for their own safety and the safety of others, the detectives abandoned the pursuit after seeing that defendant "had almost caused an accident" at one of these intersections. Consequently, they lost sight of him. By that time, however, they had managed to decipher three of the characters in the Camaro's license plate number: "ZLN."
About four or five hours later, the detectives found a Black Camaro with a license plate that had the characters "ZLN." It was parked outside a residence on 22nd Street, and no one was inside. The detectives decided to wait and watch the Camaro.
Within a half hour, defendant left the house with a young boy and walked to the Camaro with a key. Detective O'Neil recognized defendant as the person who had been driving the Camaro earlier that morning, and Detective Smith recognized him as he had earlier.
During deliberations, the jury asked the judge two questions. They first inquired as to whether there were cameras along the streets defendant was driving on during the chase. The judge responded that there was no evidence admitted that would answer their question. They then asked:
Question, clarification please. Did Detective Smith say in his testimony when he said he knew the person driving the Camaro, that he identified him by name, Jahmal McNeil, at the time the cars passed, or did he say he knew him as a person familiar in the neighborhood?
And when he said he expected the driver to come out of the house, did he say by name, he was expecting Jahmal McNeil, because at that time he knew him by name, before he came out of the house?
The judge responded as follows. "The court cannot answer your question. You have to rely on your own collective recollection as to what the testimony was concerning these two questions. It's not appropriate for the court to answer the question. You have to rely on your own recollections."
Before the jury returned to the courtroom to deliver the verdict, the court inquired if either attorney had "anything to come before the court before we bring the jury out." Both attorneys answered "No."
Defendant's first three claims are based on Detective Smith's testimony that he and his partner had information about a black Camaro being involved in illegal activity. This is the testimony he characterizes as other crimes evidence subject to N.J.R.E. 404(b), inadmissible hearsay under the rule established in State v. Bankston, 63 N.J. 263 (1973), and requiring an instruction directing the jurors to consider the testimony for a limited purpose. These arguments do not warrant discussion in a written opinion beyond the brief comments that follow. R. 2:11-3(e)(2).
The testimony upon which defendant relies does not fall within N.J.R.E. 404(b) or Bankston. The detective referenced information law enforcement had received about a black Camaro being involved in illegal activity. It consisted of nothing other than a description of the car. In fact, Detective Smith made it clear that he did not have any information linking the car to a person by saying that he did not know the license plate number of the black Camaro implicated in illegal activity. Because the information did not link anyone to criminal activity, defendant's reliance on N.J.R.E. 404(b) is misplaced. The rule applies to character evidence - "evidence of other crimes, wrongs or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." Given that there was no evidence at all indicating defendant had ever been involved in any criminal activity prior to this incident and that the tip the detective disclosed related only to a car, this evidence rule was not implicated.
Nor did Detective Smith's reference to a use of hearsay evidence violate the restrictions on the use of hearsay stated in Bankston. In Bankston, the Court stressed that "the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" 63 N.J. at 268 (internal citation omitted). That testimony is "admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. This evidence about a car of the same make and color reportedly being involved in some unspecified activity was provided for that permissible reason - to explain why the detectives turned their car around to follow this black Camaro even though the driver had not as of yet violated any traffic law or given them any reason to suspect that he had done anything wrong. This testimony is not comparable to the hearsay improperly admitted in Bankston, which the Court concluded necessarily gave rise to an inference that the officers had received information about the defendant's guilt of the crime charged. Id. at 271.
Because the evidence did not fall within N.J.R.E. 404(b) or come close to exceeding the permissible use of hearsay described in Bankston, we cannot conclude that the judge erred by declining to give a sua sponte instruction explaining that the testimony was admitted only for the purpose of explaining why the detectives followed this car. In this regard, it is important to note that defense counsel did not object to the testimony or request such an instruction. In the absence of an objection or request, a reviewing court is entitled to assume that defense counsel did not consider the omission to be prejudicial. State v. Marshall, 123 N.J. 1, 104 (1991). That assumption is well-warranted in this case, where there was no basis for inferring that the officers had information about defendant being involved in criminal activity.
Finally, we note that because defendant did not raise these issues at trial our review is for plain error. R. 2:10-2. We find no error, and certainly none that gives us any reason to doubt that the jury would have returned the same verdict if this evidence had been excluded or admitted with a direction limiting their use of the testimony defendant now claims was prejudicial. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967); State v. Castagna, 187 N.J. 293, 312 (2006).
We turn to consider the issue raised in Point IV of defendant's brief - whether the court erred by failing to inform the jurors that if they wished they could have Detective Smith's testimony re-read. Because Detective Smith's testimony plainly indicates that he recognized defendant and knew his name as soon as he saw the person driving the car and because defense counsel did not ask the judge to elaborate, the omission of the information that a read back of the testimony could be arranged was clearly incapable of producing an unjust result. R. 2:10-2. Accordingly, defendant is not entitled to relief on this basis.
Finally, we address defendant's claim that his sentence is excessive. Our review in this case is limited because the judge satisfied his obligation to explain the sentence as required by Rule 3:21-4(g) and the case law, State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180 (2009); State v. Natale, 184 N.J. 458, 486 (2005), and adhered to the Code's sentencing scheme as construed by our courts, State v. Roth, 95 N.J. 334, 365-66 (1984); Cassady, supra, 198 N.J. at 180-82. Because this judge met those obligations, we must affirm so long as his findings and balancing of aggravating and mitigating factors "are supported by competent credible evidence in the record" and the sentence does not shock the judicial conscience. Cassady, supra, 198 N.J. at 180 (internal quotation marks omitted). The judge's findings have the requisite support, and we find no merit in the arguments defendant presents to demonstrate that it is not a reasonable sentence given the conduct established at trial and defendant's criminal record.