STATE OF NEW JERSEY v. CHRISTOPHER A. SCHWARZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 5430-03T45430-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER A. SCHWARZ,

Defendant-Appellant.

____________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 02-10-0373.

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

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Robert L. Klingenburg, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted before a jury of second degree eluding, in violation of N.J.S.A. 2C:29-2(b), and fourth degree unlawful taking of a means of conveyance, in violation N.J.S.A. 2C:20-10(b). He was sentenced to a seven-year term on the eluding charge, to run consecutive to an earlier juvenile disposition, and nine months on the unlawful taking charge, to run concurrent with the sentence imposed on the eluding charge but consecutive to the juvenile disposition. Defendant was also assessed a $150 Violent Crimes Compensation Board penalty, a $150 Safe Neighborhood Services Fund penalty, a $30 Law Enforcement Officers Training and Equipment Fund penalty, and a $750 mandatory penalty. Finally, his driver's license was suspended for two consecutive terms of two years each.

On December 6, 2001, John Cutitta awoke at around 1:00 a.m. to the smell of cigarette smoke in his bedroom. He looked out his bedroom window and saw a man walking back and forth on the street in front of his home. Cutitta went to his kitchen to get a drink of water and noticed the motion sensor light in his neighbor's driveway turn on. Looking outside, he saw what appeared to be a tall, thin young man open the door to his neighbor's truck and push the vehicle out into the street. Cutitta immediately grabbed the phone and called 9-1-1 to report the incident.

The call was relayed to Officer William Sutphen, of the Hopatcong Police Department, who was on patrol at the time. On his way to the location from where the motor vehicle had been reported stolen, Officer Sutphen came across a vehicle that matched the description of the stolen truck driving towards him on Rapalia Road. Both vehicles nearly came to complete stops on the narrow road before the truck swerved around the police patrol vehicle and continued down Rapalia Road.

Officer Sutphen activated his lights and siren as he turned the vehicle around to pursue the fleeing suspect. The vehicle sped up and made a sharp right turn through a stop sign without stopping. Officer Sutphen continued the chase and watched the vehicle speed straight through another stop sign at the next intersection without stopping. The vehicle came to rest in the Civic Center, a borough-owned property across the street from Lakeside Boulevard.

As Officer Sutphen arrived, the driver exited the vehicle and fled into the woods on foot. Officer Sutphen pursued him for a few hundred yards but was unable to catch him. Despite employing a dog patrol, the police were unable to apprehend the suspect. Officer Sutphen failed to get a good look at the driver, but his report stated that the suspect appeared to be an eighteen to twenty-two-year-old white male, about six feet to six feet, two inches tall, 160 to 180 pounds, wearing blue jeans and a greenish or blue sweatshirt.

The police secured and impounded the truck. Later that day, at 3:30 p.m., Detective Robert Brennan dusted the exterior of the truck with black powder and lifted six fingerprints. All the prints came from the truck's exterior, including from the rear cab on the driver's side near the window and from above the driver's side door handle. There were no usable fingerprints found on the truck's interior. Four of the fingerprints were identified as those of defendant, Christopher Schwarz. A warrant was subsequently issued for his arrest.

Detective Brennan arrested defendant five days later in a local motel. Defendant answered the door in his underwear and freely submitted to Detective Brennan's custody after being notified that the officer had a warrant for his arrest. Detective Brennan, who knew defendant, observed that he looked very thin.

While defendant got dressed, Detective Brennan orally administered Miranda warnings. When they arrived at the police station about an hour later, Detective Brennan again advised defendant of his rights. Defendant also signed a form acknowledging that the Miranda warnings had been read. While Detective Brennan fingerprinted defendant, he asked, in what Detective Brennan described as a joking manner, what happened while Officer Sutphen was pursuing defendant on foot in the woods. In response, defendant smiled and said that Officer Sutphen could have caught him if he tried a little harder. No one else was present at the time defendant is alleged to have made this statement. Detective Brennan failed to include defendant's remark in his initial report, however, he made an addendum to the final report several days later to include defendant's statement about Officer Sutphen.

On appeal, Schwarz raises the following points:

POINT I

THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT'S SELF-INCRIMINATING STATEMENTS TO THE POLICE WERE THE EQUIVALENT OF A VOLUNTARY CONFESSION AND THEREBY DENIED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.

POINT II

THE TRIAL COURT'S FAILURE TO GIVE JURY INSTRUCTIONS ON THE CREDIBILITY OF DEFENDANT'S OUT-OF-COURT STATEMENTS IN ACCORDANCE WITH STATE V. HAMPTON AND STATE V. KOCIELEK CONSTITUTES PLAIN ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW.

POINT III

THE SENTENCE IMPOSED ON THE DEFENDANT IS MANIFESTLY EXCESSIVE AND IS AN IMPORPER APPLICATION OF THE SENTENCING GUIDELINES.

We address the issues in the order raised by defendant.

I.

Defendant argues that he had not been properly advised of his Miranda rights when he purportedly made the statement. Therefore, even if the statement was made, it was given involuntarily.

The State bears the burden of proving beyond a reasonable doubt that any statement made by the defendant was given under circumstances evidencing a knowing, voluntary, and intelligent waiver of defendant's right to remain silent. State v. Knight, 183 N.J. 449, 461 (2005) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966)).

Here, defendant does not allege that he was subjected to any coercive police tactics or that his will was overborne. Id. at 463. Instead, he simply argues that he was not properly administered his rights. Detective Brennan testified that defendant was twice advised of his rights, once at the hotel at the time of arrest and later at the police station where defendant also executed an acknowledgement of rights form. The trial judge concluded:

[D]efendant . . . understood what his rights were. By reason of having been given those [Miranda] rights by the Detective on two occasions in that very same morning, close in time, I might add. And the defendant volunteered the statement in response to the Detective's inquiry. After having been given those warnings. So, in my judgment, this was a knowing, involuntary [sic] statement by the defendant and is admissible at this trial.

When reviewing a trial judge's factual findings, we will not disturb those findings which reasonably could have been "reached on sufficient credible evidence in the record." State v. Godfrey, 131 N.J. Super. 168, 174 (App. Div. 1974) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). This is particularly appropriate where the trial court's conclusions are based solely on factual findings rather than upon factual findings "inter[t]wined with legal conclusions." Id. at 174-75 (citing State v. Yough, 49 N.J. 587, 596 (1967)). Here, the trial judge was in the best position to assess the credibility of Detective Brennan under both direct and cross-examination. No evidence was presented indicating defendant's comment was the product of coercion or given under circumstances demonstrating his will was overborne. Knight, supra, 183 N.J. at 469-70. The trial court's finding that defendant made a knowing and voluntary statement after having been warned of his rights is amply supported by the record. State v. Roach, 146 N.J. 208 (1996).

II.

Defendant contends that once the trial court determined his oral statement was admissible, the trial judge was required to instruct the jury that such statements are inherently unreliable and that the jury was to disregard the statement in its entirety if they did not find the statement was credible.

In the seminal case of State v. Hampton, 61 N.J. 250 (1972), the Court held that a trial judge's determination that a suspect's statement was voluntarily given under circumstances demonstrating a knowing, voluntary and intelligent waiver of his rights is only a preliminary determination and the trial judge must instruct the jurors to disregard the statement if they find the statement is not credible. Id. at 272. See also N.J.R.E. 104(c). Failure to give a Hampton charge may be reversible error if the failure to do so was "clearly capable of producing an unjust result." State v. Crumb, 307 N.J. Super. 204, 250 (App. Div. 1997). The Court, however, has refused to hold that it is per se reversible error. State v. Jordan, 147 N.J. 409, 425 (1997).

The Court in Jordan considered the resolution of this issue as follows:

The failure of a court to give a Hampton charge, however, is not reversible error per se. It is reversible error only when, in the context of the entire case, the omission is "clearly capable of producing an unjust result . . . ." R. 2:10-2. That problem would arise most frequently when the defendant's statement is critical to the State's case and when the defendant has challenged the statement's credibility. If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of his statement, the failure to give a Hampton charge would not be reversible error.

[Id. at 425-26.]

Defendant clearly challenged the credibility of the statement. Defense counsel cross-examined Detective Brennan regarding the exact contents of the statement and the surrounding conversation in an apparent attempt to show that the detective's account was merely his own account of what defendant said. While the statement was important, the record does not reflect that this statement was critical to the State's case.

Defendant met the general description of the person observed pushing the truck down the driveway as being that of a tall, thin young man. Officer Sutphen testified the person he chased was between six feet and six feet, two inches tall and weighed 160 to 180 pounds. Defendant's fingerprints were found above the driver's side door handle and on the rear cab. The area where the fingerprints were lifted was consistent with the observations of the witness, John Cutitta, who testified that he saw the person open the driver's side door and begin to push the truck down the driveway. This, in our view, is "other evidence that clearly establishes guilt." Id.

Additionally, in Jordan, the Court alluded to the possibility that it would not be plain error if the trial court gave a charge substantially similar to a Hampton charge. Id. at 424-25. Where the trial judge's charge includes explicit, repeated references to the jury's responsibility to "consider credibility of all the testimony which include[s] the testimony as to defendant's statement," and the critical issue is whether the statement was in fact made, the failure to give the Hampton charge amounts to harmless error. State v. Feaster, 156 N.J. 1, 72 (1998).

Here, the trial judge's preliminary and final instructions on credibility mirrored the general credibility instructions contained in the Model Jury Charges (Criminal) (2003). In his preliminary instructions at the start of the trial, the judge instructed the jurors:

As judges of the facts, you are to determine the credibility of the witnesses. And in determining whether a witness is worthy of belief and, therefore, credible, you may take into consideration these types of factors: The appearance and the demeanor of the witnesses. The manner in which the witness may testify before you. The witness' interest in the outcome of the trial, if any. The witness' means of obtaining knowledge of the facts. The witness' power of discernment, meaning their judgment. Their understanding. Their ability to reason, observe, recollect and relate. The possible bias, if any, in favor of the side for whom the witness testifies. The extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence. Whether -- whether the witness testified with intent to deceive you. The reasonableness or unreasonableness of the testimony the witness has given. And any and all other matters in the evidence which serve to support or discredit the witness' testimony to you.

During your deliberations, you may ask -- excuse me -- what is more reasonable? More probable? Or the more logical version of events.

Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident may see or hear it differently. There may be an innocent misrecollection, like a failure of recollection. This is not uncommon experience in weighing the effect of a discrepancy. Considering whether it pertains to a matter of importance, or an unimportant detail. And whether the discrepancy results from innocent error or from willful falsehood.

In his final instructions, the judge charged:

Now, as judges of the facts, you are to determine the credibility of the witnesses. And in determining whether a witness is worthy of belief, and, therefore, credible, you can consider these types of factors. The appearance and the demeanor of the witnesses who appear and testify. The manner in which they have testified. The witnesses' interest in the outcome of this trial, if any. The witnesses' means of obtaining knowledge of the facts. The witnesses' power of discernment, meaning their judgment or understanding. The witnesses' ability to reason, observe, recollect and relate. The possible bias, if any, in favor of the side for whom the witness testified. The extent to which, if at all, a witnesses [sic] either corroborated, or contradicted, supported, or discredited by other evidence. Whether a witness testified with an intent to deceive you. The reasonableness or unreasonableness of the testimony the witnesses ha[ve] given. And any and all other matters in the evidence which would serve to support or discredit that witness' testimony.

Through this analysis, as the judges of the facts, you weigh the testimony of each witness and then determine the weight to be given to that testimony. Through that process you may accept all of that testimony, a portion of it, or none of it.

If you believe that any witness willfully or knowingly testified falsely as to any material fact in the case, with intent to deceive you, you may give such weight to that testimony as you deem it to be entitled. You may believe some of it; or you may, in your discretion, disregard all of it.

This instruction did not specifically direct the jurors to assess Brennan's testimony in relation to defendant's alleged statement, however, part of Brennan's testimony focused upon what happened after defendant's arrest. Hence, by assessing the credibility of this testimony, in essence, the jury made a credibility determination as to whether or not defendant said what Detective Brennan attributed to him. Therefore, the judge's general instruction directing jurors to reject testimony they found lacking in credibility applied to Detective Brennan's testimony about defendant's purported statement.

Defendant additionally contends the trial court committed reversible error by failing to instruct the jury to be mindful of the inherently unreliable nature of oral statements when considering the alleged incriminating oral statement defendant made to Detective Brennan.

In State v. Kociolek, 23 N.J. 400 (1957), the Court held that in view of the generally recognized risk of error in communication and recollection of verbal utterances, the trial judge erred when he refused the defense's request to instruct the jury to "receive, weigh and consider such evidence with caution." Id. at 421-22. After extensively quoting Wigmore on Evidence (3d ed. 1940), the Court agreed that testimony concerning an oral statement is dangerous, "first, because it may be misapprehended by the person who hears it; secondly, it may not be well-remembered; [and] thirdly, it may not be correctly repeated." Id. at 422 (quoting Tilton v. Beecher, 2 Abbott's Rep. 837 (1875)).

As the Court stated in Jordan, the standard used to review whether the omission of a Kociolek charge constitutes reversible error is whether the totality of the evidence presented by the State is sufficient to relieve the judge of the need to give a specific charge on the reliability of the oral admission in question. Jordan, supra, 147 N.J. at 417 (citing State v. Travers, 70 N.J. Super. 32, 38 (App. Div. 1961)). In other words, where the court has not given a Kociolek charge, that deficiency must be reviewed for plain error in the factual context of the case as a whole. Crumb, supra, 307 N.J. Super. at 251 (citing Jordan, supra, 147 N.J. at 428). Where the issue is not whether the content of the statement may have been lost in the interpretation or recollection of the person reporting the statement, but instead whether the statement was actually made, we have previously held that no specific instructions need be given as to the inherent unreliability of the oral statement. State v. Campisi, 47 N.J. Super. 455, 460-61 (App. Div. 1957), certif. denied, 26 N.J. 304 (1958).

In Campisi, the defendant was charged with possession of heroin after the police found a box with drug paraphernalia and heroin in the defendant's jacket during a search of his apartment associated with an unrelated charge. Id. at 457. There was testimony that the defendant told police he had "shot" heroin a few days before his arrest. Id. at 458. This statement was allegedly made during a one-on-one conversation between the officer and the defendant. Ibid. We concluded that "[the] extreme simplicity in the nature of the oral admissions militat[ed] against the possibility of error in repetition, and project[ed] a clear issue of credibility as between the detective and the defendant." Id. at 460.

Similarly, the alleged oral admission at issue here comes from the detective's version of a one-on-one conversation with defendant. The statement was brief and could easily be reconstructed from memory. The jury presumably understood, in resolving credibility determinations as to Detective Brennan's testimony, that they also had to determine whether in fact defendant made the statement attributed to him by Detective Brennan. Ibid. Further, as the court charged, the jury was not required to accept the testimony of Detective Brennan as credible. Implicit in that instruction is that the jury could disbelieve Detective Brennan's testimony about defendant's oral statement. We presume jurors understand and follow the court's instructions. 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).

We are mindful of the Court's recognition in Jordan that the combined failure to give the Hampton and Kociolek instructions may be capable of producing an unjust result. Jordan, supra, 147 N.J. at 428. Again, given the substantial physical evidence in the form of defendant's fingerprints, combined with a general physical description of the suspect that was consistent with defendant's physical appearance at the time of his arrest, we determine that the failure to give the Hampton and Kociolek charges, individually or together, did not have the capacity to bring about an unjust result. Id. at 426, 428.

III.

Defendant argues that the court committed reversible error by failing to apply the Yarbough standards when his sentence was imposed consecutive to his juvenile disposition. State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

In Yarbough, the Court created criteria to guide judges in deciding whether to impose a concurrent or consecutive sentence when a defendant is convicted of multiple offenses. Id. at 643-44. However, Yarbough does not apply where, as in this case, the underlying sentence is consecutive to a juvenile disposition imposed in connection with an unrelated offense committed at a different time. State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000).

Defendant next contends the trial court's balancing of the aggravating and mitigating factors constituted an improper application of the sentencing guidelines. This contention is not supported by the record.

In imposing a sentence, the trial court must employ proper legal principles. The sentence imposed must be based on "competent, reasonably credible evidence." State v. C.H., 264 N.J. Super. 112, 139 (App. Div. 1993), certif. denied, 134 N.J. 479 (1993) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). To prove that a fair balancing occurred, the trial court must describe the process it undertook to arrive at the final sentence. State v. Boyer, 221 N.J. Super. 387, 405 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988) (citing State v. Kruse, 105 N.J. 354, 360 (1987)).

The judge in this case reviewed the record and listed the aggravating factors he found determinative in his final sentencing decision. The predominant theme of this discussion was an assessment of defendant's prior criminal record, both as an adult and a juvenile. See N.J.S.A. 2C:44-1(a)(6). The trial court also noted there was a substantial risk that defendant will commit another offense in the future. See N.J.S.A. 2C:44-1(a)(3).

Upon considering the mitigating factors, the trial court found that defendant's history of drug addiction from a young age and his relative youth in committing the crimes were both relevant to sentencing. The trial court considered these factors even though they are not among the specific mitigating factors listed under N.J.S.A. 2C:44-1(b). See State v. Ghertler, 114 N.J. 383, 390 (1989).

Nothing in the record tends to show that there was a clear error of judgment in sentencing defendant that shocks the judicial conscience. Roth, supra, 95 N.J. at 363-64. Defendant faced what could potentially have been a ten-year term for second degree eluding and a consecutive eighteen-month term for fourth degree unlawful conveyance. Instead, defendant received seven years for the eluding conviction and a concurrent nine-month sentence for the unlawful conveyance conviction, presumptive terms for both offenses. Since the defendant was not sentenced above the former presumptive term, State v. Natale, 184 N.J. 458 (2005), is not implicated. Id. at 472.

 
The judgment of conviction and the sentence imposed are affirmed.

(continued)

(continued)

18

A-5430-03T4

November 28, 2005