STATE OF NEW JERSEY v. GARY D. WILSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3432-04T43432-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY D. WILSON,

Defendant-Appellant.

_____________________________________________

 

Submitted July 11, 2006 - Decided August 2, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-09-321.

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

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Tara J. Kirkendall, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction, following a jury trial, of one count of eluding, N.J.S.A. 2C:29-2b, and one count of resisting arrest, N.J.S.A. 2C:29-2a. Defendant was sentenced to 280 days imprisonment, two years probation, and appropriate fines and penalties for each charge, to be served concurrently.

Defendant raises the following points for our consideration:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN HE WAS NOT ADVISED THAT HE HAD THE RIGHT TO PRECLUDE THE COURT FROM INSTRUCTING THE JURY ON HIS FAILURE TO TESTIFY. (Not Raised Below).

POINT II

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO A) FILE A PRETRIAL MOTION TO SUPPRESS EVIDENCE BASED UPON LACK OF PROBABLE CAUSE, AND B) SUBPOENA WITNESSES ON BEHALF OF THE DEFENDANT.

Our careful review of the record convinces us there is no basis for reversing the convictions. Defendant's Point II was not raised below. R. 2:10-1. Defendant's Point III involves issues of trial strategy that require the court to consider matters outside of the record and therefore are more appropriately the subject of a petition for post-conviction relief (PCR). R. 3:22-1; State v. Preciose, 129 N.J. 451, 460 (1992).

In Point I, defendant contends he never knowingly and voluntarily waived his right to testify and that he was not advised he had a choice to prevent the court from instructing the jury on his failure to testify. Because this issue was not raised before the trial judge, we review this claim under the plain error standard. R. 1:7-2; State v Fortin, 178 N.J. 540, 625 (2004).

Defendant must show that the judge's instruction to the jury as to defendant's election not to testify, without first inquiring of him whether he wanted this instruction, was clearly capable of producing an unjust result. R. 2:10-2; State v. Townsend, 186 N.J. 473, 498-99 (2006). In other words, the question is whether the failure to make the inquiry and then giving the instruction were errors sufficient to raise a reasonable doubt that the errors led the jury to a result it otherwise might not have reached. R. 2:10-2; State v Macon, 57 N.J. 325-336 (1971).

Defendant's colloquy with the court was as follows:

THE COURT: Why don't we do that? And, also, Mr. Bush, I can -- you know, I should probably advise your client of what I will read to a jury if he decides not to testify because he does have a standard constitutional right not to testify.

I give a specific instruction to the jury about that. And, Mr. Wilson, listen up. If you decide not to testify I will -- I will read this instruction to the jury. If you decide you're going to testify I of course will not read the instruction. Listen up as I read it[:]

"[A]s you know Mr. Wilson has elected not to testify at trial. It is his choice not to testify. You must not consider for any purpose or any manner in arriving at your verdict the fact that Mr. Wilson did not testify. That fact should not enter into your deliberations or discussions in any manner at any time."

Mr. Wilson is entitled to have a jury consider all of the evidence presented at trial. He is presumed innocent even if he does not testify.

Now if you decide not to testify, I'll read that to the jury. If you decide to testify, of course I won't.

THE DEFENDANT: Thank you, Your Honor.

THE COURT: Mr. Bush, what's your client's decision?

MR. BUSH: Mr. Wilson, what do you want to do, do you want to testify?

THE DEFENDANT: I did want to testify, but I . . . wanted the State Trooper to testify also that was arresting officer.

MR. BUSH: Well --

THE DEFENDANT: And I wanted my two witnesses to be here, the one that seen the tail lights --

THE COURT: The question is, Mr. Wilson, whether you want to testify or not. You're not required to --

THE DEFENDANT: Well, I wanted them to testify first, Your Honor.

THE COURT: That's not answering the question. Tell me --

THE DEFENDANT: Yes. I want -- I definitely want to testify, but I want my witnesses to testify first. Mine's the last testimony, right, Your Honor?

THE COURT: Well, if you wish to testify --

THE DEFENDANT: I would be glad to testify when my -- when the State Trooper when he testifies. He -- he could clear up this mess between these two people. He was one of the arresting officers. He was right there.

THE COURT: He didn't testify.

MR. BUSH: You would be the only witness testifying in your defense.

THE DEFENDANT: Well, I --

MR. BUSH: Do you wish to testify?

THE COURT: It's an important decision to make.

THE DEFENDANT: Not unless I have the other testimony of the officer, no.

MR. BUSH: That's not an option.

THE DEFENDANT: Well, I want -- I want -- I want the -- I want the testi--

THE COURT: The other witnesses -- Mr. Wilson, the other witnesses are not going to testify. With that in mind, is it your election to testify today or not? It's up to you.

THE DEFENDANT: I also want witnesses, Your Honor. My character witness like I asked Mr. Bush. I wanted three police officers to be witnesses as to my reputation, my credibility. And that's -- it's one of the rights I have and I'm being denied that.

THE COURT: Well, I don't know what -- I don't know about that. That's your attorney's trial strategy or practice, but I need to know from you whether or not you wish to testify in your own defense without any -- there are no other witnesses. That's it.

THE DEFENDANT: Your Honor, I got --

THE COURT: If you don't -- if you don't wish --

THE DEFENDANT: -- two other --

THE COURT: There are no witnesses here, Mr. Wilson. That's it. They're not here.

THE DEFENDANT: That's what Mr. Bush and the investigator Mr. Bongiovanni (phonetic) did. They investigated the matter. They found out that this -- the witness did in fact hear the police car hit a big rock, as big as a foot locker. And it caused $1,800 worth of damage.

THE COURT: That's -- that's the least of the issues in this case, Mr. Wilson.

THE DEFENDANT: And the credibility, Your Honor, is the fact that they reported that I did the damage with the truck when it backed up. It's -- it's a question of credibility and it's a decision --

THE COURT: The damage to the car is not an issue in this case.

THE DEFENDANT: It's --

THE COURT: In this case it's not an issue.

THE DEFENDANT: It's an issue of credibility, Your Honor, of the officer.

THE COURT: Well, at any rate --

THE DEFENDANT: Which would be -- which would --

THE COURT: -- you are -- you are here without character witnesses and without any substantive witnesses. You must make a decision whether you wish to testify or not. If you don't want to testify, I will -- I will deal with that with the jury and tell them that you're not required to testify.

THE DEFENDANT: If I'm being denied the right to a fair trial, Your Honor, no, I cannot testify.

THE COURT: Your option is that you will not testify. Now I don't want to go through this --

THE DEFENDANT: I will not testify in violation of my constitutional rights either.

THE COURT: All right. Well, you have a constitutional right not to testify. That is your constitutional right.

THE DEFENDANT: Well, that's --

THE COURT: And if you wish to exercise that, I will give this instruction to the jury.

THE DEFENDANT: Well, the reason I'd like the jury to know that I'm not testifying is because I've been refused five witnesses, three character witnesses and two witnesses of evidence.

THE COURT: All right. Well --

THE DEFENDANT: -- that will --

THE COURT: -- the jury's not going to know that.

THE DEFENDANT: Well, I just want to put that on the record that that's my request, Your Honor. Thank you.

Criminal defendants have a constitutional right to testify on their own behalf. State v. Bey, 161 N.J. 233, 269 (1999) (citing State v. Savage, 120 N.J. 594, 626-28 (1990)), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). "As with any other constitutionally-based right, a defendant must knowingly waive the right." State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005).

"[W]hen a defendant is represented by counsel, the court need not engage in a voir dire on the record to establish defendant's waiver." Ibid. (citing State v Bogus, 223 N.J. Super. 409, 424 (App. Div.), certif. denied, 111 N.J. 567 (1988)). "If defendant decides not to testify, the judge should directly inquire of counsel whether he or she wishes for a specific 'no negative inference' jury charge to be given." State v. Cusumano, 369 N.J. Super. 305, 314 (App. Div.), certif. denied, 181 N.J. 546 (2004). "Failure to address these issues, however, is not legal error when defendant, as here, was represented by counsel." Ibid. (citing Bogus, supra, 223 N.J. Super. at 424).

"'A defendant is entitled to a fair trial but not a perfect one.'" State v. DiFrisco, 137 N.J. 434, 508 (1994) (quoting State v. Martini, 131 N.J. 176, 321 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)).

The onus of explaining the consequences of testifying or refraining from testifying was on defense counsel. Savage, supra, 120 N.J. at 630-31 (quoting Bogus, supra, 223 N.J. Super. 423). Notwithstanding, the trial judge did engage in a colloquy with defendant to ensure that his decision not to testify was knowing and voluntary. While the judge should have inquired of counsel whether defendant wished the court to give the "no negative inference" instruction before doing so, we are satisfied that this error was harmless.

Nothing in the record indicates that the jury would have come to a different conclusion had the instruction not been given. The jurors were charged to refrain from speculating why defendant did not testify. The instructions were clear and correct, and because jurors are presumed to follow the court's instructions, we are satisfied that defendant was not unduly prejudiced by the court's failure to secure defendant's consent before giving the "no negative inference instruction". See State v. Nelson, 173 N.J. 417, 446 (2002); State v. Manley, 54 N.J. 259, 270 (1969).

 
Affirmed.

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A-3432-04T4

August 2, 2006