STATE OF NEW JERSEY v. BRIAN C. DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0156-04T40156-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN C. DAVIS,

Defendant-Appellant.

 

Submitted December 6, 2005 - Decided February 8, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-10-3507.

Yvonne Smith Segars, Public Defender, attorney for appellant (Melissa R. Vance, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Christopher A. Alliegro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Brian Davis was indicted for second-degree resisting arrest/eluding, N.J.S.A. 2C:29-2b, and for third-degree receiving stolen property (a vehicle), N.J.S.A. 2C:20-7. Following a jury trial, defendant was found guilty of only the second-degree offense and was acquitted of both the third-degree charge and the lesser included offenses of operating a motor vehicle without the owner's consent and entering and riding in a motor vehicle knowing that it was being operated without consent. Thereafter, the judge sentenced defendant to a term of ten years of imprisonment with a four-year parole disqualifier, together with applicable fees and assessments. Defendant appeals from his conviction and sentence. We affirm the conviction, but remand for reconsideration of the sentence imposed.

The following facts are relevant to the issues raised on appeal. Late in the evening on June 6, 2003, Sgt. Jeffrey Frett was on patrol in Camden when he observed an automobile pull out from the curb, pass another car that was stopped at a stop sign and proceed through the stop sign without stopping. Sgt. Frett pursued the vehicle that had gone through a stop sign, activated his emergency lights, and pulled it over. He remained in his patrol car while he entered the license plate number of the vehicle he had just stopped into his computer. While he waited for information, he saw that there were two people in the car he had stopped. He also noticed that the driver, who was later identified as defendant, kept turning around and looking at him. While Frett waited for the license plate information from his computer, the vehicle that he had stopped drove away. Frett later learned that the vehicle had been reported stolen.

Frett then pursued the vehicle, which was traveling at approximately 65 m.p.h. in a 25 m.p.h. zone. During the pursuit, in which at least four other police cars joined, defendant drove the wrong way on one-way streets, ran stop signs and turned off the car's headlights to avoid detection. The vehicle eventually stopped and the driver and passenger got out of the car and fled. Frett caught the passenger and other officers found and arrested defendant, who was hiding among high weeds in an open lot on the far side of a six-foot-high fence.

On June 9, 2003, Senior Investigator William Gonzales and another employee from the Prosecutor's Office met with defendant at the Camden County Correctional Facility. Defendant agreed to talk to them about the crimes. Gonzales took defendant to the Prosecutor's Office and read him his Miranda warnings. Defendant waived his rights and agreed to speak to Gonzales.

During the interview, defendant said that he was the passenger in the vehicle and that it had been driven by his friend, Mike. Defendant told Gonzales that after the police chased them, Mike stopped the car and ran away. Defendant also said that he then "walked away" from the vehicle. After hearing defendant's account of the events, Gonzales asked defendant if he would undergo a Voice Stress Analyzer Examination. Although defendant agreed to do so, he later refused to take the test, telling the officers: "I am lying and this will give me more problem." The defendant then told the officers he wanted to be represented by a lawyer and all questioning ceased.

At trial, the parties stipulated that the vehicle had been stolen on May 26, 2003 by a male and a female, that the owner did not know defendant or the passenger of the car at the time of the incident on June 6, 2003 and had not given either of them permission to use his vehicle.

Defendant testified at trial. He denied having anything to do with the stolen car. He testified that he was on his way home from a store where he purchased cigarettes when two officers pulled up in a "paddy wagon", told him to stop and put his hands in the air, pulled a gun on him, grabbed him by the collar, threw him to the ground and handcuffed him. He also testified that he had never seen Frett before the trial.

According to defendant, he stopped answering questions during the June 9, 2003 interview because he could not give the police the statement about being the driver of a stolen vehicle that they wanted him to give and because he had no idea about the incident they were asking about. Defendant denied ever saying "I am lying and this will give me more problem" to the two investigators and he denied telling them that he was guilty and wanted to wait until he was in front of a judge "to cop this." He also denied mentioning a friend named Mike who allegedly picked him up in the stolen car.

The State called Gonzales as a rebuttal witness to testify about the interview he had with the defendant on June 9, 2003. Gonzales testified that defendant told him in response to his question about what had occurred on the night of June 6, 2003 that "he was at the transportation center and was picked up by an individual by the name of Mike who was driving a vehicle," that the police indicated that Mike should stop, but he refused at first, and that when Mike did stop, he fled the vehicle and defendant decided to flee as well. Gonzales also testified that defendant "advised [Gonzales] that he was guilty and that he want[ed] to wait until he was in front of a judge to cop to this."

Defendant raises the following points for our consideration on appeal:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY WHEN SHE VOUCHED FOR THE CREDIBILITY OF A POLICE OFFICER. (Not Raised Below).

POINT II

THE DEFENDANT'S SECOND-DEGREE ELUDING CONVICTION MUST BE REVERSED BECAUSE THE TRIAL JUDGE'S CHARGE RELIEVED THE STATE OF ITS BURDEN OF PROVING THE MATERIAL ELEMENT OF KNOWINGLY CREATING A RISK OF DEATH OR INJURY. (Not Raised Below).

A. N.J.S.A. 2C:2-2c(1) Requires That The Knowing Mental State Be Applied To the Result-Of-Conduct Element Of Second-Degree Eluding Because The Mental State Is Defined As Knowingly For The Other Material Elements of Second-Degree Eluding And It Does Not "Plainly Appear" That The Legislature Intended To Make Second Degree Eluding A Strict Liability Offense.

B. State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), Was Wrongly Decided Because The Panel Failed To Interpret The Second-Degree Eluding Statute In Accordance With N.J.S.A. 2C:2-2(c)(1) And The Principle That Penal Statutes Must Be Strictly Construed.

C. The Erroneous Jury Instructions Relieved The State Of Its Burden Of Proof And Thus Defendant's Conviction For Second-Degree Eluding Must Be Reversed.

POINT III

THE SENTENCE IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.

A. The Apprendi/Blakely Error.

B. The Judge Improperly Found Aggravating Factor Thirteen Despite the Jury's Finding Defendant Not Guilty of Receiving Stolen Property and Lesser-Included Offenses.

We have considered these arguments in light of the record and the applicable legal principles. With the exception of the issue raised in Point III, we find these arguments to be unpersuasive. We therefore affirm the conviction but remand for reconsideration of the sentence.

First, we find no merit in defendant's contentions respecting the propriety of the prosecutor's summation. Two statements made by the prosecutor during summation, in which she commented that first Frett and then Gonzales had no motive to lie during their testimony, are the focus of this argument on appeal. As to this contention, we note that there was no objection to the testimony at the time that either statement was made at trial, requiring that we evaluate them in accordance with the plain error standard. See R. 2:10-2. Under that standard, we will not reverse absent a showing that the error was "clearly capable of producing an unjust result." Ibid. The showing required to support reversal, moreover, 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." State v. Macon, 57 N.J. 325, 336 (1971); see State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Particularly in this context, we note that, as the Supreme Court has pointed out, a failure to object at trial may well be construed as an indication that counsel did not perceive the error to be significant under the circumstances. See Macon, supra, 57 N.J. at 333.

We have reviewed the challenged comments of the prosecutor in context and find no error, much less plain error. See State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001). The prosecutor's comments were essentially based on the facts of the case and the reasonable inferences that were supported by those facts. Nothing that the prosecutor said had the potential to deprive defendant of a fair trial. See State v. Ramseur, 106 N.J. 123, 322-323 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

In part, they were permissibly responsive to statements made in summation by defendant's counsel. In particular, the essential theory of the defense was that defendant was not in the car, that he was not found hiding in the weeds, and that he did not make any of the inculpatory statements attributed to him. In short, he challenged the testimony offered by both Frett and Gonzales as being entirely untruthful. His attorney stressed credibility throughout her closing argument, contending that both Frett and Gonzales were simply lying. In that context, it was permissible for the prosecutor to comment as she did. See State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). As our Supreme Court has held, remarks by the prosecutor that simply respond to arguments raised by defendant are generally permissible. See State v. DiPaglia, 64 N.J. 288, 297 (1974); State v. Lane, 288 N.J. Super. 1, 12 (App. Div. 1995). The prosecutor neither offered a personal opinion of the veracity of the witnesses nor vouched for them, either of which might be a sufficient basis on which to afford relief. See State v. Marshall, 123 N.J. 1, 154 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Rather, she was only responding to the assertions of defendant that the State's witnesses were not telling the truth.

Defendant's second argument on appeal is similarly unpersuasive. In short, defendant contends that the trial judge erred in failing to separately charge the appropriate mental state as an element of the crime of eluding sufficient to raise the offense from the third to the second degree. Defendant concedes that he did not object to the charge in this regard, as a result of which the issue, again, is tested in accordance with the plain error rule. See R. 2:10-2. In charging the jury, the trial judge utilized the Model Jury Charge for second-degree eluding. As our Supreme Court has cautioned, using a Model Jury Charge will only rarely support a claim of error. See State v. R.B., 183 N.J. 308, 325 (2005); Mogull v. CB Commercial Real Estate Group, 162 N.J. 449, 466 (2000). Indeed, the second-degree eluding charge has previously been reviewed and found to be accurate by our Supreme Court. See State v. Bunch, 180 N.J. 534, 542-43, 546-47 (2004); State v. Wallace, 158 N.J. 552, 559-60 (1999).

On appeal, defendant argues nevertheless that the charge was in error because it did not include the element of defendant's mental state as a requirement for the jury to consider in evaluating whether "the flight or attempt to elude creates a risk of death or injury to any person." See N.J.S.A. 2C:29-2b. In raising this assertion of error, defendant concedes that we have previously considered and rejected this argument, see State v. Dixon, 346 N.J. Super. 126, 135-36 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), but urges us on appeal to reject our earlier decision as unsound. We decline to do so, finding no basis on which to reach any conclusion respecting the meaning of the statute or its interpretation different from the one we reached in Dixon, supra, 346 N.J. Super. at 126.

Defendant's final argument on appeal is that his sentence was excessive. In particular, he asserts that the judge erred in sentencing him to a term in excess of the presumptive term of seven years for the second-degree offense, see N.J.S.A. 2C:44-1f(1)(c), and that the judge improperly relied on aggravating factor thirteen, finding that he was using or in possession of a stolen motor vehicle at the time of the offense, see N.J.S.A. 2C:44-1a(13), contrary to the jury's finding that he was not guilty of that offense.

Our Supreme Court has recently addressed the implications of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), at length. See State v. Natale, 184 N.J. 458 (2005) (Natale II); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005). Applying the reasoning of those decisions to the record on appeal, we conclude that a remand of this matter for review of the sentence is mandated. Although consideration of the so-called recidivism factors is appropriate in imposition of a sentence, see Natale II, supra, 184 N.J. at 482, and although imposition of a period of parole ineligibility is permissible, see Abdullah, supra, 184 N.J. at 515, the judge's reliance on factor thirteen was inappropriate here. Because the jury rejected the charges that would have supported the findings relating to the use of a stolen vehicle, the judge's contrary conclusion constituted a finding of fact that exceeded that which Blakely permits.

The judge, on remand, shall follow the dictates of the Court in Natale II and Abdullah when conducting the review of this sentence. In particular, the judge shall determine whether the pertinent aggravating factors are based exclusively on defendant's record, see Abdullah, supra, 184 N.J. at 506-07 & n.2, and, in light of the jury's verdict of acquittal on the charges relating to the use of a stolen vehicle, the judge shall not consider aggravating factor thirteen.

 
The matter is remanded only for reconsideration of the sentence consistent with this opinion. In all other respects, the conviction is affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-0156-04T4

February 8, 2006