June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
RYAN GRIGGS, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. 07-12-4096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012
Before Judges Fuentes, J. N. Harris and Koblitz.
Defendant Ryan Griggs appeals from his conviction and sentence for eluding and resisting arrest stemming from an altercation with the police in which defendant was alleged to have struck a police vehicle with his car and pointed a gun at an officer before fleeing the scene. Defendant argues that the retrial after termination of the original trial, which occurred after the jury had been sworn, constituted double jeopardy. He also maintains that the judge abused his discretion in restricting defendant's access to the officers' internal affairs and personnel files and erred in denying defendant's motion for a judgment of acquittal. He further contends that the sentence imposed is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.*fn1
On December 20, 2007, an Essex County Grand Jury returned Indictment No. 07-12-4096 charging defendant with first-degree attempted murder of a police detective, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-1 (count one); third-degree aggravated assault of the same detective, N.J.S.A. 2C:12-1(b)(2) (count two); three counts of second-degree aggravated assault of three other police officers, N.J.S.A. 2C:12-1(b)(1) (counts three, four and five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count eight); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count nine); and third-degree eluding the police, N.J.S.A. 2C:29-2(b) (count ten). Defendant was convicted only of counts nine and ten. On July 1, 2009, he was sentenced to four-and-one-half years in prison on the eluding conviction, and a concurrent thirteen months and fifteen days on the resisting arrest conviction.
The trial testimony of the police officers revealed the following facts. On August 31, 2007, at 10:00 p.m., seven police officers in three unmarked police cars, a Crown Victoria, a Grand Prix and a Honda, were on patrol on Victoria Avenue in Newark.
All seven officers observed a silver BMW "shoot out" of a side street onto Victoria Avenue. The driver failed to stop at a stop sign at the intersection of Victoria and Cutler streets. The BMW then made a left on Stone Street and went into a driveway. Several people standing near the driveway ran into the house when the unmarked police vehicles approached.
The Crown Victoria pulled in front of the BMW, while the Grand Prix and Honda parked behind the BMW. An officer exited the Crown Victoria, identified himself as a police officer, and attempted to open the driver's side door of the BMW while instructing the driver to shut off the engine. Instead, the driver shifted the car into reverse, put his foot on the accelerator and hit the Grand Prix twice before coming to a stop. The other officers then got out of their cars.
Shining a light on the front of the vehicle, an officer yelled out, "he's reaching." Other officers saw the driver pointing a revolver at an officer, who fired his weapon at the driver and then jumped back into the Crown Victoria. The other officers then also started shooting.
Defendant exited the car and took off running with nothing in his hands. An officer chased and apprehended him. Defendant received three gunshot wounds to his chest and arms and, as a result, was hospitalized. Officers found a black revolver on the front floor of the BMW.
One officer admitted during his testimony to being under investigation by the Essex County Prosecutor's Office for two unrelated incidents: one involving the discharge of a firearm, the other the use of excessive force.
Defendant was issued summonses for failure to stop at a stop sign, speeding, careless driving, having tinted front-side windows, failure to display license plates and failure to comply with officers' orders.
Detective Michael Bozsolak of the Essex County Prosecutor's Office testified as both an expert and a fact witness. He arrived at the shooting scene shortly after midnight. He saw a handgun on the floor of the BMW's driver's side. He found blood on the sidewalk about 400 feet north of the vehicle. Bozsolak counted six bullet holes in the BMW's front window. He recovered twenty-seven shell casings of the same type, consistent with the firearms carried by the officers that night. Bozsolak examined the .357 Magnum revolver recovered from the car and concluded that the trigger had been pulled three times, but that none of the bullets had fired. The rounds were either hollow points or semi-hollow points. He did not find any fingerprints on the gun, which he did not find surprising due to the nature of the handle.
The defense played video of the incident taken from one of the patrol cars for the jury. The defense used the video to suggest that while officers chased defendant, an unidentified individual, who was shown going back to the Crown Victoria and then returning to the BMW, had an opportunity to plant the gun.
One officer, Detective Vernon Parker, who had been in the Crown Victoria, was called as a witness for the defense. He denied discharging his weapon that evening and said that he joined in pursuing the individuals who ran into the house. When he emerged from the basement of the house, he went to aid an officer who was cut from shattered glass. Parker conceded, however, that he did not include that information in his report.
Although Parker filed a complaint indicating that defendant had pointed a gun at him, he conceded at trial that defendant had not done so. Parker further admitted that at the time of trial he was under suspension for two separate indictments for sexual assault, endangering the welfare of a child and animal cruelty. He denied planting the gun found in the BMW.
Defendant did not testify.
Defendant raises the following issues on appeal:
POINT I IT WAS ERROR TO DENY THE DEFENSE MOTION FOR A MISTRIAL BECAUSE DOUBLE JEOPARDY ATTACHED AFTER A MISTRIAL WAS DECLARED IN THE FIRST TRIAL DUE SOLELY TO STATE MISCONDUCT.
POINT II THE TRIAL COURT'S RULING DENYING ACCESS TO DESIGNATED INTERNAL AFFAIRS FILES OF THE NEWARK POLICE DEPARTMENT, DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO CONFRONT THE WITNESSES AGAINST HIM.
POINT III DEFENDANT'S MOTION FOR ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE WAS WRONGFULLY DENIED.
POINT IV DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
POINT V DEFENDANT'S SENTENCE WAS EXCESSIVE.
In point I of his brief, defendant claims that the trial judge erred in not granting his second motion for a mistrial, brought on double jeopardy grounds, because jeopardy had attached when his first mistrial motion was granted at the start of the initial trial. That first motion had been granted to permit defendant and the judge to review the internal affairs and personnel files provided by the State.
On the same date the original jury was impaneled, the State, in response to a discovery request made by defendant four months earlier, delivered to the judge the Newark Police Department's internal affairs file relating to two of the officers involved in the incident. Both parties applied for a mistrial so that the files could be reviewed. The judge declared a mistrial because it was not feasible to simply delay the trial given the amount of information submitted.
In denying defendant's subsequent mistrial motion on double jeopardy grounds, the judge stated that the reason for the mistrial "certainly . . . could not be attributed to the State." He added:
I do not find that the . . . mistrial . . . was caused by those kind of things that could give rise to a double jeopardy challenge . . . w[here] a mistrial . . . is granted in order to allow the prosecution to obtain an advantage, and . . . where the Prosecutor is involved in misconduct that provokes the Court into granting a mistrial . . . . [I]t's clear when the defendant con[s]ents to . . . or waives . . . his right . . . it is inappropriate for jeopardy to attach.
We review the judge's denial of the defense motion for a mistrial on double jeopardy grounds under the abuse of discretion standard of review. State v. Winter, 96 N.J. 640, 647 (1984).
The double jeopardy clauses of the United States and New Jersey Constitutions protect a defendant from repeated prosecutions for the same offense. State v. Torres, 328 N.J. Super. 77, 85 (App. Div. 2000). Where there is a jury trial, "jeopardy attaches after the jury is impaneled and sworn." State v. Veney, 409 N.J. Super. 368, 380 (App. Div. 2009) (quoting State v. Allah, 170 N.J. 269, 279 (2002)). From that point on, a defendant is entitled to have the trial proceed to its normal conclusion before that particular panel. State v. Dunns, 266 N.J. Super. 349, 362 (App. Div.), certif. denied, 134 N.J. 567 (1993).
"[A] trial judge may declare a mistrial and discharge a jury without foreclosing the defendant's reprosecution on the same charges if the mistrial was declared at the request or with the acquiescence of the defendant." Id. at 362-63. Even where the defendant moves for a mistrial, however, if the State intended to goad the defendant into requesting a mistrial, double jeopardy may apply. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089, 72 L. Ed. 2d 416, 425 (1982). The important consideration is whether the defendant retained primary control over the course to be followed. Ibid. "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Id. at 675-76, 102 S. Ct. at 2089, 72 L. Ed. 2d at 424.
Defendant argues that the State "goaded" him into consenting to the mistrial by "covering up" the indictments against Parker, and by delaying its disclosure of the files until the start of the initial trial.
No evidence was presented to show that defendant had been goaded into making the mistrial motion in the original trial, or that the State's failure to turn over the documents or to discover the charges against any of the officers was anything more than mere negligence. United States v. Millan, 17 F.3d 14, 19 (2d Cir. 1993) (explaining that "[e]ven if the Government was less than diligent in its investigation of the alleged police misconduct, this negligence does not rise to the level of intentional conduct necessary to invoke the protections" of double jeopardy). Therefore, the trial judge did not abuse his discretion in denying defendant's double jeopardy mistrial motion.
In point II of his brief, defendant argues that he was denied his right to confront the witnesses against him because he was not granted "open discovery" of Parker's indictment file, civilian complaint files against some of the officers, and internal affairs files pertaining to the officers involved in the shooting.
In ruling on defendant's discovery request, the judge, who had previously described the request as a "fishing expedition," concluded:
I have had an opportunity to review the Newark Internal Affairs file which basically consists of the reports, and the histories of the officers. [I] find nothing that exists in that file that would be able to be used in any other manner as an argument that the . . . witness on the stand was currying favor. [T]h[e] one file you received . . . seems to the Court ample, sufficient information while still protecting the privacy and confidentiality to the State with regards to Internal Affairs investigations.
I deny your request for anything more from that file other than the reports you received. . . . *fn2
We review a trial court's ruling on a defendant's discovery motion for abuse of discretion. State v. Enright, 416 N.J. Super 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).
As part of a criminal defendant's constitutional right to confrontation, a defendant may attack a prosecution witness's credibility by revealing possible biases, prejudices or ulterior motives as they relate to the issues in the case. State v. Harris, 316 N.J. Super. 384, 397 (App. Div. 1998). Because a defendant has a fundamental right "to explore evidence tending to show that the State may have a 'hold' of some kind over a witness, the mere existence of which might prompt the individual to color" his or her testimony, the defense must have the opportunity to probe the witness's credibility and self-interest in that respect. State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001). Thus, the pendency of charges or an investigation relating to a state witness is an appropriate topic for cross-examination. Id. at 459. Moreover, suppression of evidence relating to a witness's possible conflict of interest is a due process violation. Ibid.
The question of "whether police personnel records should be disclosed involves a balancing between the public interest in maintaining the confidentiality of police personnel records" against a defendant's right of confrontation. Harris, supra, 316 N.J. Super. at 397-98. The State has a duty to learn of any evidence favorable to the defendant known to others acting on the government's behalf in the case, including the police. State v. Jones, 308 N.J. Super. 15, 42 (App. Div. 1998). However, that duty cannot be triggered by mere speculation that a government file may contain exculpatory material. Ibid. The defendant "must advance 'some factual predicate which would make it reasonably likely'" that the records contain some relevant information, and establish that the defendant is not merely engaging in a fishing expedition. Harris, supra, 316 N.J. Super. at 398 (quoting State v. Kaszubinski, 177 N.J. Super. 136, 139 (Law Div. 1980)).
Disclosure of police personnel records will be permitted where they may reveal prior bad acts that have particular relevance to the issues at trial. Ibid. The judge performed an in camera review and determined which documents to make available to defendant. Charges pending against the officers were revealed to defendant, who apparently convinced the jury that much of the police officers' testimony was not sufficiently credible to constitute proof beyond a reasonable doubt of the more serious counts in the indictment. The judge did not abuse his discretion in denying defendant's request for "open discovery" of all of the officers' internal affairs and personnel files.
In Point III of his brief, defendant asserts that the judge erred in not granting his motion for a judgment of acquittal on the resisting arrest and eluding counts. He maintains that he fled the scene due to the shots fired at him by the police.
In denying defendant's motion for acquittal at the close of the State's case, the judge stated with respect to the eluding count:
There is ample evidence in this case to indicate that the defendant . . . did not abide by the directional signal, that being a stop sign, and that he thereafter . . . drove his vehicle in an erratic manner, and [the police] attempted to stop  defendant, and he continued to travel, and make a left, and pull into his residence at Stone Street.
Under these circumstances, a reasonable jury could conclude that the defendant is guilty beyond a reasonable doubt.
With respect to the resisting arrest count, the judge stated:
There's been much discussion and debate about what reasons the defendant may have or not have had for fleeing. Nonetheless, there's ample evidence in this case that the officers once he exited the vehicle told him to halt, stop. [A]ll of the officers indicated [they] got out of the car[s], and display[ed] their badge[s] as officers. . . . They told him to stop reaching first, and then told him to put the weapon down.
Under all those circumstances, a reasonable jury could conclude that it was clear to the defendant at the time he decided to run that the officers were going to attempt to effectuate an arrest starting from the motor vehicle violations to the assaults on the officers by driving the vehicle backwards, and forward, and then finally by the shooting that took place[.] [T]herefore, a reasonable jury could conclude that the defendant knowing that he was going to be arrested . . . attempted to resist arrest by flight.
When a motion for acquittal is made at the conclusion of the State's case under Rule 3:18-1, the trial judge must deny the motion if, viewing the State's evidence in its entirety, whether direct or circumstantial, and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply the same standard on review. State v. Moffa, 42 N.J. 258, 263 (1964).
A person is guilty of third-degree eluding if he or she, while operating a motor vehicle, knowingly flees or attempts to elude a law enforcement officer after having received any signal from such officer to bring the vehicle to a full stop. N.J.S.A. 2C:29-2(b).
Defendant contends that his flight was motivated by fear, not to avoid apprehension. Defendant also points to the officers blocking his vehicle and firing shots into the vehicle. Whether or not these actions were excessive, as a matter of law they do not impact on whether the eluding statute was violated; a person must submit to an arrest, whether it be lawful or unlawful. State v. Seymour, 289 N.J. Super. 80, 85 (App. Div. 1996). A reasonable jury could have found defendant guilty of third-degree eluding beyond a reasonable doubt based on the facts presented in the State's case.
A person is guilty of fourth-degree resisting arrest if he or she purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest by flight. N.J.S.A. 2C:29-2(a)(2). Fleeing from an arresting officer on foot is covered by this subsection. State v. Henry, 323 N.J. Super. 157, 162 (App. Div. 1999).
Here, as the judge determined, a reasonable jury could find guilt beyond a reasonable doubt based on the following evidence: the officers identified themselves as police officers and blocked defendant's car; Detective Sanchez yelled at defendant to "stop" while defendant was backing into the police vehicle; and Officer Richardson shouted, "police." Despite this, defendant exited the car and ran away. Thus, the circumstances were such that a jury could "determine that the defendant knew that the police were attempting to effectuate an arrest and [defendant] resisted the arrest." State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1998).
The judge did not err in denying defendant's motion for a judgment of acquittal.
In Point IV of his brief, defendant argues that he was denied a fair trial by the State's failure to timely disclose Parker's indictment and the internal affairs files of the other officers, as well as by the State's failure to conduct a competent investigation by not submitting the blood found on the revolver and the steering wheel to DNA testing.
Under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the prosecution's good or bad faith. The evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. New Jersey has adopted the Bagley standard of materiality. State v. Marshall, 148 N.J. 89, 155-56, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Parker's files were given to the defense and the files of the other officers were given to the judge for examination. Defendant was able to question Parker at trial about the material. Moreover, both sides learned of Parker's indictments at about the same time. Defendant fails to establish how he was prejudiced by the timing of the disclosure.
As for the internal affairs files of the other officers, as we discussed previously, the judge properly handled the defense's access to those files.
Finally, the failure to test the blood on the gun and the steering wheel is irrelevant because defendant was convicted of eluding and resisting arrest, not weapons possession or assault.
In the final point of his brief, defendant claims that the sentence imposed was excessive because he received a sentence at the high end of the third-degree range, even though the judge found only one aggravating factor, the need to deter. Defendant maintains that he should have been sentenced to time served, 622 days in jail, because he had no prior indictable convictions, was employed, and was a high school graduate.
In sentencing defendant for eluding to four-and-a-half years in prison, the judge found the need to deter, N.J.S.A. 2C:44-1(a)(9), as the lone aggravating factor, stating:
[I]t is clear to the Court that the Defendant himself is in need of being deterred, as are members of society, in general; . . . that if this defendant simply had pulled his car over to the side of the road, no other circumstances for any purpose would have occurred. If he didn't rock the car back and forth with [the] officers standing down, no other circumstance would have occurred.
[I]n the circumstances of this case, if he simply would have gotten out of the car, he would not have had to run away from the officers. The shooting had stopped. By everyone's estimation, he didn't need to get up out of the car and run down the street
He needs to be deterred and society in general needs to know that . . . this kind of conduct cannot be countenanced.
The judge found no mitigating factors and concluded that "the aggravating factors outweigh the mitigating factors and therefore the Defendant should receive a sentence towards the higher end of the range."
The ordinary term of imprisonment for a third-degree crime is between three and five years. N.J.S.A. 2C:43-6(a)(3). With presumptive terms eliminated, while the middle of the sentencing range as a logical starting point remains a reasonable approach, reason also suggests that sentences will tend to the lower end of the range where mitigating factors preponderate, and toward the higher end when aggravating factors preponderate. State v. Natale, 184 N.J. 458, 488 (2005).
Defendant contends that the judge's finding of only one aggravating factor, the need to deter, was not sufficient to warrant a sentence six months higher than the midpoint of the third-degree sentencing range. He also questions the application of that factor, claiming that the need to deter exists in every sentence.
While a sentence can have both a general deterrent effect on the public and a personal deterrent effect on the defendant, the absence of any personal deterrent effect greatly undermines the general deterrent effect. State v. Jarbath, 114 N.J. 394, 405 (1989). In this instance, the trial judge, having a "feel for the case" from observing the trial, found a particular need to deter defendant. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). This, in turn, provided a basis for the need to deter others from engaging in similar conduct, which could put the lives of law enforcement and bystanders in danger. State v. Cancel, 256 N.J. Super. 430, 437 (App. Div. 1992) (upholding deterrence as an aggravating factor to put those without criminal records who commit serious drug offenses on notice "that they will pay a high price"), certif. denied, 134 N.J. 484 (1993).
The judge did not abuse his discretion in imposing a sentence higher than the middle of the range, nor was the sentence imposed manifestly excessive. As our Supreme Court has recently reaffirmed, "when [trial judges] 'exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . ., they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." Id. at 608.