STATE OF NEW JERSEY v. KYLE CHAPMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4672-03T44672-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYLE CHAPMAN,

Defendant-Appellant.

________________________________________

 

Submitted September 21, 2005 -- Decided

Before Judges Conley, Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, 02-06-0349.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Jan, Designated Counsel, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Tried in absentia by a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b, and fourth-degree receiving stolen property, N.J.S.A. 2C:20-7a. The State's motion for a persistent offender extended sentence pursuant to N.J.S.A. 2C:44-3a was denied and a ten-year term with a five-year disqualifier was imposed on the eluding conviction. A concurrent eighteen-month term on the receiving stolen property conviction was also imposed, along with the necessary fines and penalties.

On appeal, defendant contends:

POINT I: UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING DEFENDANT TO BE TRIED IN ABSENTIA.

POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT III: THE TRIAL COURT'S INSTRUCTION ON THE CHARGE OF ELUDING WAS DEFICIENT, AND THUS REQUIRES A REVERSAL OF THE CONVICTION (Not Raised Below).

POINT IV: THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH A HAMPTON/KOCIOLEK CHARGE WAS PLAIN ERROR (Not Raised Below).

POINT V: THE CUMULATIVE EFFECT OF ALL THE ABOVE ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VI: THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE, AND SHOULD SHOCK THE JUDICIAL CONSCIENCE.

POINT VII: THE IMPOSITION OF A GREATER THAN PRESUMPTIVE SENTENCE VIOLATES DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY, AND THUS MUST BE VACATED.

We have considered these contentions in light of the entire record and applicable law. With the exception of the contention in point VII, which we now know requires a Natale/Abdullah sentencing remand, we are convinced the contentions are without merit.

We premise these observations upon the undisputed facts that 1) defendant's absence from his trial was plainly with full and clear knowledge of his trial date and without reasonable explanation; 2) the risk of harm to others involved in the eluding conduct was clearly established by other than motor vehicle infractions which occurred along the way, and 3) defendant's oral "confession" was more exculpatory than inculpatory, was relied upon by defense counsel, and was not objected to and not requested to be accompanied by the Hampton/Kociolek jury charges. Moreover, defendant's participation in the incident as the driver of the vehicle was otherwise established by the State's evidence.

Here is what occurred. On October 26, 2001, there was a robbery at the Eckerd drug store in Mantua Township. The store manager saw the perpetrator running from the store to a vehicle which sped away. He was able to obtain the license plate number which he relayed to the police. The vehicle was seen shortly thereafter by the police, and was followed. It turned into a school driveway and then began to exit it. At that point a police stop was attempted by blocking the exit with the police vehicle. The car drove around the police vehicle and a chase ensued. The vehicle engaged in various dangerous maneuvers, including going the wrong way on a one-way street, passing in a no-passing zone and speeding, all in moderate traffic. Ultimately the car was involved in a crash, ending up off the road in bushes and/or a tree. During the chase, two people were seen in the vehicle. They both fled the vehicle after it crashed. After a foot chase, the driver was apprehended. He was the defendant. The stolen merchandise was found in the car.

I.

Trial In Abstentia

The trial was originally scheduled for June 10, 2003. Defense counsel requested an adjournment so that he could interview a potential witness. Even though the State had all of its witnesses, including two Eckerd employees, the trial judge granted the adjournment. Defendant was present in court. He was specifically advised that the new trial date was June 17, 2003, and that he was required to appear in court on that date. In this respect, the following colloquy between the judge and defendant occurred when defendant was served that day, in court, with a subpoena for June 17:

[DEFENSE COUNSEL]: Can we make the subpoena for Tuesday morning so that he doesn't have to sit through status Monday?

THE COURT: Yes, the 17th, Tuesday, at nine; all right?

[DEFENDANT]: Okay; yes sir.

THE COURT: . . . . You have to be here; if you're not here the trial's going to go on without you.

[DEFENDANT]: Yes, sir.

THE COURT: Remember what I told you?

[DEFENDANT]: Yes, sir.

THE COURT: Okay. So we need to have you here on the 17th at nine.

Defendant did not appear on June 17, 2003, and efforts by both the court and counsel to locate him then and during the three-day trial were unsuccessful. During his subsequent motion for new trial, counsel represented that defendant was confused about the trial date and pointed out that defendant had appeared at all of his prior court dates. He asserted that defendant's defense was duress, premised upon his contention that the other person in the car had forced him to engage in the eluding by holding a knife to his throat. Because of defendant's absence, counsel contended that he was not able to present that evidence.

A defendant's right to be present at trial is protected by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. State v. Whaley, 168 N.J. 94, 99 (2001); State v. Finklea, 147 N.J. 211, 215 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997); State v. Hudson, 119 N.J. 165, 171 (1990). The defendant's presence at trial also safeguards due process concerns where the "defendant's absence would hinder a fair and just hearing." State v. Whaley, supra, 168 N.J. at 99-100.

However, the right to be present at trial is not absolute, and may be waived. Id. at 100. Indeed, "a defendant's knowing, voluntary, and unjustified absence before or after trial has commenced does not prevent trial from proceeding in absentia." State v. Hudson, supra, 119 N.J. at 182. See R. 3:16(b). An essential element to finding a knowing waiver of the right to be present at trial is adequate notice of the trial date. State v. Hudson, supra, 119 N.J. at 182. That is, it must be shown the trial date was actually communicated to the defendant who, then, unjustifiably failed to appear. State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996).

Here, there is no question that defendant was expressly told in court of the June 17, 2003, trial date. Indeed, he signed a subpoena notifying him of that date. To be sure, the judge did comment that the trial might not start until June 24. But he emphatically told the defendant that he must appear on the 17th and warned him of the consequences should he not do so. There could have been no reasonable confusion on defendant's part. Moreover, he has presented no other justifiable excuse for his absence. At the time the trial commenced in absentia, the trial judge said:

I remember saying to him, I think you probably know these Hudson warnings better than I do having heard this much and then it struck him again just this last week and I know we gave him a subpoena. So, I am going to proceed if we've waited until 10, come up to him at 10. I discussed with [defense counsel], off the record, whether, you know, we should not say anything and rather than draw attention to it, but I've written this out. The jury is to disregard the fact that the defendant's not present here today. There are many reason for persons to be absent. The jury is instructed not to speculate as to his absence nor to draw any inference from his absence.

When denying defendant's motion for a new trial, the judge reiterated:

Why he was not here is unclear to the Court; however, the Court had ruled at that time that based on the relevant cases and he was given his appropriate warnings -- in fact, I said to him on the 10th that I knew that he probably knew the Hudson and Finklea warnings better than I did. And he acknowledged that he understood them . . . .

I found at that time that he had waived his appearance by his conduct, which evidenced a knowing and voluntary and unjustified absence after receiving actual notice in court for which he signed.

We see no basis for disagreeing. Simply put, defendant was advised of the June 17 trial date, expressly acknowledged his awareness of the date, executed a subpoena therefor, and had no excusable rationale for his absence. Moreover, that defendant may have had a better shot at his duress defense had he appeared is highly questionable. First, in light of his extensive prior record, it might be doubtful that he would have testified. Second, the jury heard the essence of his defense through his "confession," that is that although he was driving the vehicle, he had no involvement in the robbery and was only giving the perpetrator a ride. Third, during the chase, the police saw a man in the backseat "duck[] back down." This presumably would be the other person whom defendant claimed forced him to engage in the eluding. But the police observations were not consistent with defendant's contention that he was being forced at knife point.

II.

Jury Instructions on Eluding

N.J.S.A. 2C:29-2b, states in part:

Any person, while operating a motor vehicle on any street or highway in this State or any vessel, . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.

[Emphasis added.]

In defining the elements for the offense of eluding, the trial judge instructed the jury on the six elements necessary to find defendant guilty of the third degree offense. He then instructed that if the jury found all six of these elements, they must then determine whether the State had proven the element necessary for a second-degree eluding. In this respect, the judge said:

In order to find this element you must determine that there was at least one person put at risk by the defendant's conduct including persons along the chase route, police officers in the chasing vehicle or persons in the eluding vehicle.

You may infer risk of death or injury to any person if the defendant's conduct in fleeing or attempting to elude the officer involved a violation of the motor vehicle laws of this state which alleged that the defendant's conduct involved violations of the motor vehicle law and that he did not stop at a stop sign and he passed in a no-passing zone.

Specifically it's alleged that he did that by Sergeant Ridinger.

Whether he's guilty or not guilty of those offenses will be determined by appropriate court. I other words it's not your job to decide whether he is guilty or not guilty of the motor vehicle offense. However you must consider evidence that he committed a motor vehicle offense in deciding he committed a risk of death or injury.

At the same time remember that you are never required or compelled to draw this inference. As I have already explained it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish.

[Emphasis added.]

Defendant's contention on appeal is that this charge, particularly as it relates to the emphasized language, did not include instructions on the elements of the alleged motor vehicle infractions. Defendant did not raise this objection below and it, therefore, must be considered as plain error. That it is not, is clear. To be sure, where the necessary second-degree risk of harm element is not evident from the circumstances, but requires a jury to draw an inference thereof from motor vehicle infractions, the elements of those infractions must be included in the jury instructions. State v. Dorko, 298 N.J. Super. 54, 61 (App. Div.), certif. denied, 150 N.J. 28 (1997). That is simply not the case here. Regardless of whether his driving conduct was violative of specific motor vehicle laws, defendant's speeding, passing and driving the wrong way on a one-way street in moderate traffic, causing the police vehicle to pursue it under these conditions, most definitely posed a risk of harm. State v. Wallace, 158 N.J. 552, 560 (1999). Indeed, the fact that the vehicle ultimately crashed shows, at the least, a risk of harm to its occupants, including defendant. See State v. Bunch, 180 N.J. 534, 544-45 (2004). There was no error, much less plain error.

III.

Hampton/Kociolek

Confessions are generally viewed with caution. State v. Knight, 183 N.J. 449, 461 (2005); State v. Cook, 179 N.J. 533, 552 (2004); State v. Jordan, 147 N.J. 409, 425, 428 (1997); State v. Hampton, supra, 61 N.J. at 272; State v. Kociolek, supra, 23 N.J. at 421-22. See N.J.R.E. 104(c). Thus, whether or not requested by counsel, when a defendant's confession is admitted during a trial, the jury should be instructed that they should determine whether the confession was true. State v. Jordan, supra, 147 N.J. at 425. Similarly, the jury must be told that unrecorded oral statements are to be viewed with caution because of the risk of error in communications, recollections and misconstruction of the hearer. Id. at 428.

These instructions were not given here. Nonetheless, such error is not always fatal. Ibid. We are convinced no error occurred. There is no contention that defendant was not properly warned of his Miranda rights and did not offer his statement voluntarily. There is, further, no suggestion that the circumstances were such that would raise some question as to the accuracy of the officer's recollection of what defendant said. Further, the statement was, primarily, exculpatory and so used by counsel at trial. To the extent it placed him in the vehicle as the driver, there was independent overwhelming evidence establishing that fact. There was, therefore, no reversible error.

IV.

Sentence

We find no merit to defendant's excessiveness contention in point VI and do not further address that. R. 2:11-3(e)(2). We are mandated, however, by State v. Natale, supra, 184 N.J. 458 and State v. Abdullah, supra, 184 N.J. 497, to remand the sentence for resentencing as it is above the presumptive. At resentencing, defendant shall be afforded the right of allocution. R. 3:21-4(b); State v. Cerce, 46 N.J. 387, 393, 395-97 (1966); State v. Tavares, 286 N.J. Super. 610, 616 (App. Div.), certif. denied, 144 N.J. 376 (1996).

The convictions are affirmed. The sentence is remanded for resentencing. We do not retain jurisdiction.

 

State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005).

State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957).

The witness apparently was the other perpetrator who was in prison on another charge. Counsel's subsequent interview with him was not fruitful.

In this respect, the jury learned that after being advised of his Miranda warnings, defendant told the police that he had picked up someone he knew as "Grove" at the Camden Transportation Center. Grove asked him to drive him to the West Deptford area and agreed to pay him. Grove then asked defendant to take him to a house he said was his sister's and then, when he could not get in, to take him to the Eckerd drug store. Grove went in and defendant waited outside. He saw Grove come out in a hurried manner, carrying a basket. Grove jumped into the car and told him to speed off.

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A-4672-03T4

September 30, 2005