June 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RICARDO M. SUDLOW a/k/a SUDLOW RICCARDO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2012
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-11-01045.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Hayden.
Following a three-day trial, a jury found defendant Ricardo M. Sudlow guilty of second-degree eluding an officer, N.J.S.A. 2C:29-2(b); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5); third-degree receiving stolen property, N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The jury acquitted defendant of second-degree aggravated assault while attempting to elude, N.J.S.A. 2C:12-1(b)(6), and third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
On April 26, 2011, defendant received an eight-year term of imprisonment with a four-year period of parole ineligibility for the eluding count; a four-year term of imprisonment on the aggravated assault count, concurrent to the eluding sentence; a four-year term of imprisonment on the receipt of stolen property count consecutive to the eluding sentence; and a twelve-month term of imprisonment on the resisting arrest count concurrent with the other sentences. In addition, the judge imposed all appropriate fines and penalties.
Defendant raises the following points on appeal:
POINT I - GIVEN THE FACT THAT DEFENDANT WAS NOT CHARGED WITH CARJACKING, THE ADMISSION OF THE HIGHLY AND UNDULY PREJUDICIAL EVIDENCE THAT THE ACURA INVOLVED IN THE ELUDING HAD BEEN STOLEN EARLIER THAT DAY DURING A CARJACKING AT GUNPOINT DENIED DEFENDANT A FAIR TRAIL.
POINT II - THE PROSECUTOR'S CROSS-EXAMINATION, WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT WAS GUILTY BECAUSE HE FAILED TO PROVIDE THE IDENTITY OF DENNIS WEBSTER AFTER HIS ARREST AND PRIOR TO TRIAL, IMPROPERLY SHIFTED THE BURDEN OF PROOF TO
THE DEFENDANT, AND VIOLATED HIS RIGHT TO REMAIN SILENT, DENYING HIM A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PARAS. 1, 9, 10.
POINT III - THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT WHEN HE IMPROPERLY BOLSTERED THE CREDIBILITY OF STATE WITNESSES ON CROSS-EXAMINATION AND IN SUMMATION.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The record revealed that on June 28, 2009, an unidentified man carjacked an Acura at gunpoint from the driveway of the owner's home in New York. Defendant was not the carjacker.
Later that day, Mountainside Police Officer Shaun Bendik observed defendant driving the stolen Acura in a residential neighborhood under construction in Mountainside. The officer became suspicious after defendant parked the vehicle in the unpaved driveway of a newly-constructed, unoccupied home. He shined a spotlight into the vehicle and saw defendant sitting in the vehicle alone. Defendant then backed the Acura out of the driveway and the officer activated the lights on his patrol car to signal defendant to stop the vehicle. Instead of stopping, defendant drove the vehicle in the direction of nearby Route 22.
As defendant merged onto the highway, Mountainside Police Officer Jeffrey Stinner joined Bendik in the pursuit. Defendant drove the vehicle erratically at an extremely high rate of speed, weaving in and out of traffic. Mountainside Police Corporal Kenneth Capobianco was driving nearby in a marked pickup truck when he heard police radio transmissions about the chase. He positioned his truck in front of the Acura and drove at a low rate of speed. The Acura collided into the rear of the patrol vehicle, flipped over, and eventually came to a stop. Defendant fled, hiding nearby until the police found and arrested him.
At trial, the three police officers involved identified defendant as the driver and sole occupant of the stolen Acura. Defendant testified at trial that his friend Dennis Webster was the driver of the Acura and he was just a passenger. According to defendant, because he refused to tell the Mountainside police the name of the driver, the police falsely testified that he was the only person in the Acura.
Defendant first contends that the trial court committed reversible error in permitting the prosecution to present evidence concerning the carjacking of the Acura, because defendant was not charged with that offense. Defendant maintains that this evidence was irrelevant under N.J.R.E. 401, unduly prejudicial pursuant to N.J.R.E. 403, and constituted impermissible, other-crime evidence under N.J.R.E. 404(b). We disagree.
We review a trial court's evidentiary decisions for abuse of discretion. State v. Hernandez, 170 N.J. 106, 128 (2001). A trial court abuses its discretion whenever it makes a decision "without a rational explanation." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted).
At trial, Bendik stated that the Acura had been carjacked at gunpoint. Defense counsel objected immediately, without stating the basis for the objection. The trial judge sustained the objection and immediately provided a curative instruction to the jury concerning only the hearsay nature of Bendik's statement.
The owner of the Acura testified for the State about the carjacking. Before permitting her to testify, the trial judge conducted a N.J.R.E. 104 hearing. During this hearing, and at trial, the owner unequivocally stated that defendant was not the carjacker. Defendant did not object to the admission of the owner's testimony. During the State's case she simply testified that the vehicle was stolen from her at gunpoint. Only in response to defense counsel's cross-examination did she provide more details of the violent nature of the crime.
While instructing the jury about the receipt of stolen property charge, the judge emphasized:
Now in this case there was testimony from a woman who said it was her car that was taken at gunpoint from her in New York. Now that was a -- that's a charge of carjacking. The defendant is not charged with carjacking, so you should not consider that in that regard.
She simply was brought here to indicate it was her car and it was taken from her, but you can't use that against the defendant. You shouldn't speculate on who actually took the car, okay. That would be improper.
Defendant contends that the evidence concerning the carjacking of the Acura was irrelevant under N.J.R.E. 401. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The test for relevance asks whether there is a "logical connection between the proffered evidence and a fact in issue, " that is, "whether the thing sought to be established is more logical with the evidence than without it." State v. Hutchins, 241 N.J.Super. 353, 358 (App. Div. 1990) (citing Manieri v. Volkswagenwerk A.G., 151 N.J.Super. 422, 429-30 (App. Div. 1977), certif. denied, 75 N.J. 594 (1978)). Evidence of an uncharged offense "must bear on a subject that is at issue at the trial, for example, an element of the offense." State v. P.S., 202 N.J. 232, 255 (2010).
In this case, the trial judge instructed the jury that the owner's testimony was admitted for the sole purpose of establishing that her vehicle had been stolen, an element that the prosecution was required to prove in order to establish third-degree receipt of stolen property under N.J.S.A. 2C:20-7a. See State v. Hodde, 181 N.J. 375, 380-81 (2004) (noting the State has burden of proving property at issue was actually stolen). Thus, the evidence of an uncharged offense, carjacking, is relevant to prove an element of a charged offense, receipt of stolen property. For that reason, we are convinced that the trial court's decision to admit the evidence based upon its relevancy was not "arbitrary, capricious, whimsical, or manifestly unreasonable." Flagg, supra, 171 N.J. at 571.
Defendant also urges that the evidence of the carjacking was unduly prejudicial pursuant to N.J.R.E. 403, which provides that "evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice." Probative value refers to "the tendency of evidence to establish the proposition that it is offered to prove." Hutchins, supra, 241 N.J.Super. at 359 (citing State v. Allison, 208 N.J.Super. 9, 17 (App. Div.), certif. denied, 102 N.J. 370 (1985)). Here, the probative value of the evidence of the carjacking must be measured by its tendency to establish that the Acura had been stolen. See ibid.
Defendant argues that, although the Acura owner testified that defendant was not the carjacker, the jury could still infer that defendant was the carjacker's accomplice. The State counters that the evidence had greater probative value because it established that the Acura was stolen, an element of the offense of receiving stolen property, N.J.S.A. 2C:20-7. Further, the State maintains, assuming the owner testified only that her car had been stolen, without explaining how, the jury still could have concluded that defendant was somehow involved. Additionally, defense counsel's failure to object to the owner's testimony or to request any instruction following her testimony suggests that any prejudice caused was diminutive. See State v. Macon, 57 N.J. 325, 333 (1971) ("It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment."). Under the totality of the circumstances here, we are convinced that the probative value of the carjacking testimony is greater than the prejudicial value.
Finally, we agree that the judge cured any prejudice posed when she instructed the jury to disregard the remark. See State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions.") (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999)). Accordingly, we are satisfied that the trial judge did not abuse her discretion in concluding that the probative value of the carjacking evidence outweighed any potential undue prejudice.
Next, defendant contends that both Bendik's reference to the carjacking and the owner's testimony about the carjacking were impermissible other-crime evidence under N.J.R.E. 404(b), which provides, in pertinent part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
In general, other-crime evidence is not admissible to prove guilt by criminal predisposition. N.J.R.E. 404(b). See also State v. Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent to prove one crime by proving another.") (citation omitted). The rationale for this is that a jury, aware of such evidence, may be tempted to convict, not by reason of proof, but by reason of perception. State v. Gibbons, 105 N.J. 67, 77 (1987).
"The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes, ' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403." State v. Rose, 206 N.J. 141, 179 (2011). An uncharged offense is intrinsic evidence of a charged crime if: (1) "it 'directly proves' the charged offense, " or (2)the uncharged act was "performed contemporaneously with the charged crime" and it "facilitate[d] the commission of the charged crime." Id . at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, U.S., 131 S.Ct. 363, 178 L.Ed.2d 234 (2010)). Thus, under N.J.R.E. 404(b), other-crime evidence may be admitted for specific, non-propensity purposes to prove "motive, opportunity, intent, preparation, plan, knowledge, " or to establish a "necessary background." Id . at 181.
We are persuaded that the carjacking testimony was intrinsic to the crime of third-degree receipt of stolen property, N.J.S.A. 2C:20-7. Rose, supra, 206 N.J. at 179. The testimony was admitted for a specific, non-propensity purpose, namely, to establish an element of the crime with which defendant was charged. Id. at 180-81 (citing Green, supra, 617 F.3d at 248-49). As such, the evidence related to the carjacking only needed to satisfy the evidence rules relating to relevancy. Id. at 179. Consequently, we conclude that the evidence relating to the carjacking was not impermissible other-crime evidence.
Furthermore, under the plain error standard,  an unchallenged error merits reversal only if it is "clearly capable of producing an unjust result." R. 2:10-2. That is, it must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. Thus, even if the carjacking evidence was erroneously admitted, because of the overwhelming eyewitness testimony, any error in admitting this evidence was not "clearly capable of producing an unjust result." R. 2:10-2.
Next, defendant contends that two separate incidences of prosecutorial misconduct merit reversal of his conviction. Again, we disagree.
In reviewing alleged acts of prosecutorial misconduct, we inquire whether "the conduct was so egregious that it deprive[d] the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). In determining whether a defendant's right to a fair trial has been denied, we consider several factors, such as whether the defense counsel made a timely objection, whether the prosecution promptly withdrew the improper remark, whether the trial judge ordered that the improper remark be stricken, and whether the trial judge instructed the jury to disregard the improper remark. Id. at 322-23.
First, defendant argues that the prosecutor improperly cross-examined defendant regarding his post-arrest silence. Because defendant objected to this alleged error, we review it under the harmful error standard. See R. 2:10-2.
During his direct testimony, defendant stated that after his arrest he chose to remain silent and did not cooperate with the authorities in that, out of personal loyalty, he chose not to reveal the name of the driver of the vehicle. During cross-examination, however, defendant stated that after his arrest he did reveal to the New York police that Webster was driving the Acura.
PROSECUTOR: . . . [Y]ou never mentioned [your friend's] name, correct?
DEFENDANT: To New York detectives,
DEFENDANT: -- eventually I did, yes.
PROSECUTOR: You did?
PROSECUTOR: What was the name of the detective . . . ?
DEFENDANT: I don't know.
PROSECUTOR: . . . Did you tell your counsel that?
DEFENDANT: . . . I did. I told him they came and interviewed me and he said, well, maybe that's the reason they took three days to charge me.
When the prosecutor began to question defendant as to why he had never reveled this information to the Mountainside police, defendant's counsel objected that the prosecution was attempting to bring defendant's post-arrest silence into evidence. The trial judge concluded that because defendant had already testified that he revealed Webster's name to New York detectives, the prosecution could ask defendant if he told anybody else.
Although it is generally improper for a prosecutor to comment on a defendant's post-arrest silence, defendants can open the door "to this otherwise protected area" when a defendant places it in issue. State v. Jenkins, 299 N.J.Super. 61, 68 (App. Div. 1997). Once a defendant testifies about statements made to the police around the time of his arrest, "the State must be permitted to cross-examine him regarding whether or not these alleged statements were actually made." State v. Elkwisni, 190 N.J. 169, 178 (2007) (citations omitted). In this case, because defendant testified that he gave a statement to the New York police, we agree that defendant opened the door for the prosecution to uncover the extent of defendant's statements.
Defendant additionally contends that the prosecutor made comments during cross-examination and summation that require reversal. During cross-examination, the prosecutor asked defendant the following:
PROSECUTOR: . . . [Y]ou heard the testimony of a number of police officers who were in here today, right?
DEFENDANT: Yes, I did.
PROSECUTOR: They're all lying, right?
Defense counsel objected to the prosecutor's line of questioning and the trial judge sustained the objection. Defense counsel did not ask for a curative instruction.
In his summation, defense counsel vigorously attacked the credibility of the three police officers who testified as eyewitnesses. During the State's closing argument, the prosecutor made the following remarks:
It's going to come down to who you think is telling the truth. The State . . . the police officers are telling the truth.
[Y]ou really have to judge the credibility of [defendant] against the cops. I know I've said that but I think that's really what it comes down to.
I think these cops are credible. . . .
Defense counsel did not object to the prosecutor's closing remarks. After closing arguments were finished, the trial court advised the jury that "[a]rguments, statements, remarks, openings, and summations of counsel are not evidence and must not be treated as such."
It is improper for a prosecutor to personally vouch for a police officer's credibility. See State v. R.B., 183 N.J. 308, 331-32 (2005).
[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial. In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and degree of responsiveness of both counsel and the court to improprieties when they occurred.
[Id. at 332-33 (quoting Frost, supra, 158 N.J. at 82-84).]
When a defense attorney fails to object to a prosecutor's summation, it "speak[s] volumes about the accuracy of what was said." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001) (citing State v. Wilson, 57 N.J. 39, 51 (1970)). An appellate court will "presume that when a lawyer observes an adversary's summation, and concludes that the gist of the evidence has been unfairly characterized, an objection will be advanced." Ibid.
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.
[R.B., supra, 183 N.J. at 333 (quoting Frost, supra, 158 N.J. at 82-84).]
Moreover, a prosecutor's improper remarks made during summation can be cured so long as the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument." State v. Smith, 212 N.J. 365, 409 (2012). See also State v. Loftin, 146 N.J. 295, 390 (1996) (accepting the presumption that juries follow a court's instructions).
In regards to the prosecutor's question about whether the police were lying, we conclude that because the defense counsel's objection was promptly sustained, the prosecution abandoned its improper line of questioning, and the trial court clearly instructed the jury the prosecutor's remarks were not evidence, the prosecutor's misconduct was not so egregious that it deprived defendant of a fair trial. Moreover, defense counsel's failure to demand an immediate curative instruction suggests that any prejudice that did arise was minor. See R.B., supra, 183 N.J. at 333.
In regards to the prosecutor's remarks in summation, "[o]ur task is to consider the 'fair import' of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (citations omitted). Here, defense counsel's failure to object suggests that defendant did not believe that the remarks were prejudicial at the time they were made. See R.B., supra, 183 N.J. at 333. In the context of the entire summation and the defense counsel's intense attack on the officers' credibility, the prosecutor's brief remarks were not clearly capable of producing an unjust result. Moreover, any prejudice that arose was cured by the trial court's clear instructions to the jury that the attorneys' remarks made in summation were not to be considered as evidence. See Smith, supra, 212 N.J. at 409.