NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-10-2363.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo and Kennedy.
Tried by a jury, defendant Walter H. Williams was convicted of third-degree eluding, N.J.S.A. 2C:29-2b, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). After appropriate merger, defendant was sentenced to a discretionary extended term, N.J.S.A. 2C:44-3a, of six years with three years of parole ineligibility. Defendant appeals, and we affirm.
According to the State's proofs, on September 17, 2009, State Trooper Brian Davern was dispatched to the residence of Valerie Williams, defendant's wife, for a "service call." Upon arrival, Davern noticed a tan and blue 1990 Ford Bronco parked at the residence that was registered under Valerie Williams' name. While at the residence, Davern encountered defendant's wife and her sister. He learned that defendant was not at the house and that he had outstanding warrants against him. To familiarize himself with defendant's physical characteristics, Davern obtained a copy of defendant's driver's license photo, stapled it to defendant's active warrants and then placed these documents in his clipboard to help identify defendant while on patrol.
On October 6, 2009, about three weeks after the service call, Davern was working a shift in the area of Newtonville near Route 54 and Sixth Road. While on patrol, Davern saw a male he recognized as defendant from the driver's license photo he had previously obtained and attached to his clipboard. Further, Davern watched defendant as he drove his wife's 1990 Ford Bronco into the parking lot of the Lopez Deli. Davern made a U-turn into the same parking lot, ran the registration of the vehicle, and determined that it was under Valerie Williams' name. When the driver exited the deli, Davern "had a clear look of [defendant's] face, " as it was still daylight. Based on his unobstructed observation, Davern positively identified defendant, using the driver's license photograph in his clipboard as well as other information gleaned from "multiple police reports" describing defendant's physical characteristics. After defendant reentered his vehicle and turned onto Sixth Road without using a turn signal, Davern drove immediately behind defendant and activated his overhead lights and sirens. Defendant, however, failed to stop and instead led Davern on a chase down Sixth Road, while frequently checking his rearview mirror. Defendant then accelerated down a dirt road, which leads to a wooded area behind his residence, parked the vehicle behind a dirt mound and abandoned his car, fleeing into the woods.
Davern searched the woods with reinforcements and then spoke with defendant's wife and mother-in-law, but he remained unable to locate defendant. The Bronco was towed and Davern returned to the police station, where he wrote a warrant for defendant for eluding and resisting arrest.
Several days later, on October 10, 2009, Washington Township Police Officer Giuseppe Morici arrested defendant while he was driving his wife's Bronco with his wife as a passenger. Prior to his arrest, defendant told Morici that he did not have his driver's license, but that his driving record should come up under the name "Willy Williams" with a date of birth of 8/28/66. When Morici told defendant he knew who he was, defendant admitted his name was Walter Williams and provided him with his actual date of birth. Based on the outstanding warrant for the eluding and resisting arrest charges, defendant was arrested and transported to the police station.
At trial, defendant presented an alibi witness, John Romolini, a "close friend" of thirty-five years, who testified that from around 9:00 a.m. until after midnight on October 6, 2009, he was with defendant doing plumbing work at Romolini's parents' home, and that he drove defendant to and from this location. Romolini, however, was unable to produce any pay stubs or timesheets in support of this claim. In rebuttal, Atlantic County Prosecutor's Office Detective Denise Manino testified that Romolini refused to cooperate in the investigation.
Evidently crediting the State's proofs, the jury convicted defendant of eluding and resisting arrest. This appeal follows, in which defendant raises the following issues:
I. THE REPEATED REFERENCES TO DEFENDANT'S OUTSTANDING ARREST WARRANTS AND OTHER BAD ACTS DENIED DEFENDANT A FAIR TRIAL.
II. THE TRIAL COURT IMPROPERLY PERMITTED THE PROSECUTOR TO SUGGEST THAT THE DEFENSE HAD THE BURDEN OF PROVING HIS ALIBI DEFENSE.
III. IN HER SUMMATION, THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF STATE WITNESSES.
IV. THE TRIAL COURT'S MISAPPLICATION OF AGGRAVATING FACTOR EIGHT AND IMPROPER DETERMINATION AS TO THE PROPRIETY OF AN EXTENDED TERM OF IMPRISONMENT RESULTED IN AN EXCESSIVE SENTENCE.
Defendant's challenge to Trooper Davern's testimony that defendant had active warrants must be considered in its proper context and against the following background.
At a pre-trial hearing on February 21, 2012, the court noted that the State and defendant originally agreed to the following stipulation regarding Davern's initial response to defendant's residence:
Upon being dispatched to a domestic incident . . . at or to the residence of the defendant's wife, Valerie Williams, Trooper Brian Davern responded to that location. An individual at the residence told Trooper Davern that the defendant fled the residence on foot prior to his arrival due to the fact that the defendant had multiple open warrants.
After reading this stipulation, defense counsel indicated she believed the stipulation had been "modified to . . . reflect municipal warrants." Before any argument could be reached regarding that issue, defense counsel further posited that a reference to a domestic incident "could be handled in a more general fashion" by labeling it "a call for service at a home." The court accepted that limitation in Davern's prospective testimony, and defense counsel further agreed that a stipulation on defendant's open warrants was necessary to provide the jury background information as to why Davern decided to pull defendant's photograph from the DMV database.
Instead of a written stipulation "[t]hat could get a little awkward when you have the very witness on the stand who is presumably able to say those things, " the court and both counsel agreed that the State would direct its questions so that Davern gave "the right answers." The court further indicated that "the concrete understanding would be that [Davern is] dispatched on a service call to the residence of the defendant's wife, Valerie Williams. Upon arriving there, is advised that the defendant left the scene." Defense counsel confirmed that the testimony should be that defendant was at the residence earlier, but left.
The court then directly addressed the expected testimony of the "existence of the warrants, " explaining that while defendant's knowledge of the warrants is not essential,
the trooper's knowledge of the warrants is, so it has to include that [Davern] is told by someone at the house that [defendant] has warrants because that's essential to understanding why he would then pursue, because, if the jury doesn't hear that, then they're left to speculate that there must have been a domestic violence incident that is reported that's not being discussed, and that's why he's chasing the defendant. So I think it's a benefit that the defense derives by the officer knowing that there are warrants and that's why he's pursuing him, not because of a complaint made by his wife.
To further protect defendant, the State also agreed not to elicit any testimony that Davern obtained the information about the warrants from defendant's wife, lest there be any speculation by the jury of marital discord. There was no restriction, however, that Davern could only testify that defendant's open warrants were for municipal or non-criminal matters.
On direct examination, Davern testified accordingly as to why he familiarized himself with defendant's physical characteristics and placed defendant's driver's license photograph in his clipboard:
Q: Could you please tell the court how you recognize [defendant's] photo?
A: That's the photo that I brought up on my New Jersey State Resources and I've kept a copy of that in my ...