STATE OF NEW JERSEY v. MIGUEL DIAZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2855-06T42855-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL DIAZ,

Defendant-Appellant.

_______________________________________

 

Submitted February 13, 2008 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0696.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Timothy P. Ward, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged under Mercer County Indictment No. 05-06-0696 with second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree attempt to commit theft by unlawful taking, contrary to N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1 (count two); and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(2) (count three). Tried to a jury, defendant was found guilty of all charges. At sentencing, the judge merged count two with count one, and sentenced defendant to a seven-year term of incarceration on count one, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to a concurrent twelve-month term on count three. Defendant appeals from the judgment of conviction entered on March 3, 2006. We affirm.

I.

We briefly summarize the evidence presented at trial. On March 20, 2005, at approximately 9:00 p.m., Officers Luis Baez and Israel Bonilla of the Trenton Police Department were on patrol in an unmarked police vehicle in the area of Hudson Street in Trenton. Baez testified that he observed a person, who he eventually identified as Manuel Reyes, stumbling and staggering down the street. Baez believed that Reyes was intoxicated. Baez and Bonilla followed Reyes and observed him from their vehicle. Baez and Bonilla were both dressed in jeans and a shirt. Baez was wearing a jacket which said "Police" and his badge was hanging around his neck.

The officers pulled over on Hudson Street near Conley's Alley. Baez said that the police vehicle was on the opposite side of the street but he could see down the alley, which was illuminated by lights on lamp posts. Baez observed Reyes walk down the alley towards Roebling Avenue. Reyes was "staggering back and forth[.]"

Two men approached Reyes. Baez said that one of the men punched Reyes "right in the face[.]" He struck Reyes "with a full swing[.]" Reyes fell down on his back. The man who struck Reyes hunched over him and rifled through his jacket and pants. Baez said that he believed that he had witnessed a robbery.

The officers activated the lights and siren on the police vehicle. Baez stated that the vehicle has emergency red lights on the front grill. He described the siren as "[v]ery loud." Baez said that he caught a "real brief" look at the suspect. The officers drove into the alley.

The suspect looked up and ran. The officers followed the suspect towards Roebling Avenue. They turned left on Roebling and called out to the suspect to stop. The suspect stopped briefly. The officers stopped their vehicle and got out. Baez said that the suspect then fled on foot. The officers caught up with the suspect and, with the assistance of other officers, arrested him. Baez identified defendant as the suspect.

Baez testified that he and a detective "pat frisked" defendant. They did not find anything on his person that had been taken from the victim. Baez asserted that, later that evening, he had an opportunity to see and speak to Reyes. Baez stated that he detected the odor of an alcoholic beverage on Reyes. Reyes also had a "little bit of swelling on the right side of his face."

Bonilla's testimony was substantially the same as that provided by Baez. Bonilla said that on the night in question, he was on patrol with Baez. He saw Reyes walking down Conley's Alley towards Roebling Avenue. Reyes was approached by two men and one of the men struck Reyes in the face with his right hand. Reyes fell to the ground, and the assailant started going through his pockets. Regarding the lighting in the alley, Bonilla said that the alley "was pretty lit."

Bonilla also stated that he and Baez activated the lights and siren of their police vehicle. The suspect looked up. According to Bonilla, the suspect was surprised and "took off running[.]" The officers chased him. They never lost sight of the suspect. Eventually, he was apprehended on Hudson Street. Bonilla also identified defendant as the suspect. He said that he was "positive" that defendant was the person he chased and eventually apprehended.

Reyes testified that on the evening of March 20, 2005, he had been drinking at the White Horse bar in Trenton. Reyes left the bar at around 9:30 p.m. He said that he had consumed nine beers and "felt very drunk." Reyes headed home. He proceeded down Hudson Street and turned into Conley's Alley. Reyes said that in the alley, a person hit him and he fell to the ground. According to Reyes, the person who struck him put his hand into the pocket of Reyes' jacket but nothing was taken. Reyes picked himself up and went home. He said that he felt "all dizzy and stuff." Reyes did not see the man who struck him.

Kendel Blanco also testified. On March 20, 2005, Blanco was residing on Fulton Street and there is an alley in the rear of his home. Around 9:00 p.m., Blanco was in his kitchen and he looked out the window towards the alley. Blanco saw Reyes, who he described as his "neighbor."

Blanco said that another man approached Reyes from a different direction and punched him. According to Blanco, a third man was walking in the alley when this occurred "but that person had nothing to do with it." Blanco stated that there were no street lights in the alley but he conceded that photographs showed street lights in the alley. Blanco asserted that it was dark. Blanco said that he came out of his house and asked Reyes if he was alright. Blanco saw a police car pass quickly but he did not see the man who struck Reyes.

The defense presented testimony from Martin Alvarez, an investigator. Alvarez had interviewed Reyes at his home sometime after the incident. Reyes told Alvarez that he had been drinking at the White Horse bar and left to return to his home on Fulton Street. Reyes said that he was drunk. Reyes said that he was struck in the alley by a man. It was very dark. Reyes screamed for help. He stated that the perpetrator did not have time to go through his pockets. According to Alzarez, Reyes asserted that the perpetrator never tried to rob him.

Defendant also testified. He stated that on the evening of March 20, 2005, he was at the White Horse bar with a friend named Cesar. Defendant asserted that he and Cesar left the bar around 8:30 p.m. or 8:45 p.m. They walked down Roebling Avenue and Cesar decided that he wanted to go home. Defendant and Cesar turned into the alley to take a shortcut. Defendant said that another man approached them. Defendant asserted that the man raised his hand and defendant thought the man was going to strike him. According to defendant, the man had a beer bottle in his hand.

Defendant said that he hit the man but insisted that he "never took anything from him." Defendant stated that he struck the man, not because he wanted to rob him, but because defendant had money in his pocket. The man fell to the ground and defendant asserted that he did not do anything.

Defendant further testified that he saw a car approaching with high beams. He stated that he "ran fast" because he believed the man's family members were in the car. Cesar ran away. Defendant also ran. He said that he did not see any police lights and did not hear the siren. Defendant stated that he did not know that police officers were in the car.

Defendant also said that when he was arrested, he had $20 in his possession, along with some coins. He insisted that he did not know that Reyes was in the White Horse bar that evening. Defendant stated that he did not rob or attempt to rob Reyes. He asserted that he did not "need to" rob Reyes because he had his own money. Defendant said that he did not go through Reyes's pockets.

In this appeal, defendant raises the following arguments for our consideration:

POINT I:

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO CROSS-EXAMINE DEFENDANT REGARIDNG CRIMINAL CHARGES DISMISSED IN A PREVIOUS CONVICTION.

POINT II:

THE TRIAL COURT ERRED IN CHARGING THE JURY ON FLIGHT BY A DEFENDANT.

POINT III:

THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT IV:

THE COURT'S JURY CHARGE ON THE CRIME OF RESISTING ARREST WAS MISLEADING (NOT RAISED BELOW).

POINT V:

THE TRIAL COURT INCORRECTLY EVALUATED THE AGGRAVATING FACTORS IN SENTENCING DEFENDANT.

II.

We turn first to defendant's contention that the trial court erred by permitting the prosecutor to cross examine defendant regarding certain prior criminal charges.

In his direct testimony, defendant testified that he had been sentenced in May of 2004 in Mercer County for a third-degree offense. Defendant said that he received a three-year sentence, which was considered to be satisfied by "time served." Defendant also said that he pled guilty because he was "wrong." He stated, "I told my lawyer that I had been wrong, and that's why I served my time for that." Defendant insisted, however, that he was not guilty of the charges in this case.

Before commencing cross examination, the assistant prosecutor asked for a sidebar conference with the judge. The assistant prosecutor argued that he should be permitted to "point out the fact that [defendant] pled guilty to a plea bargain which made him susceptible to a lot less time than if he went to trial and was convicted of charges, not whether he was innocent or guilty of them[.]"

Over the objection of defense counsel, the judge permitted the inquiry "to balance things out." Thus, defendant's cross examination continued as follows:

Q. Mr. Diaz, [defense counsel] asked you whether you had been convicted of a crime. And you answered that yes, you had. You answered that you had entered a plea in that case, and you had answered that you had entered a plea in that case because you were wrong in that case. Sir, isn't it true that you were offered, by accepting that plea offer, you received a far lesser sentence than you otherwise might have gotten?

A. Yes, sir.

Under N.J.R.E. 609, a prior conviction may be admitted "[f]or the purpose of affecting" the defendant's credibility "unless excluded by the judge as remote or for other causes." Ibid.; see also State v. Sands, 76 N.J. 127, 144 (1978). Furthermore, when a prior conviction is for an offense similar to that for which the defendant is being tried, the evidence concerning the prior conviction must be "sanitized" and limited to the degree of the crime and the date of the prior offense. State v. Brunson, 132 N.J. 377, 391-94 (1993).

Here, defendant had been previously convicted of theft. He concedes that the evidence of that conviction was admissible to affect his credibility. At trial, the parties agreed that the evidence concerning the prior conviction would be limited to the degree of the offense and the date of the conviction. Defendant argues the judge erred by permitting the assistant prosecutor to "go beyond the bounds" of this "sanitized" evidence and question him about charges that were dismissed as part of the plea.

In support of his argument, defendant relies upon State v. Burgos, 262 N.J. Super. 1 (App. Div. 1992). In that case, the defendant was charged with certain offenses involving the distribution of a controlled dangerous substance. Id. at 3. On direct examination, defendant stated that she previously had been convicted of possession of marijuana with intent to distribute, and distribution of marijuana. Id. at 4-5. On cross examination, the assistant prosecutor inquired whether "certain charges against [the defendant] had been dismissed as part of a plea agreement." Id. at 5. The trial judge allowed the inquiry because the dismissed charges were noted on the judgment of conviction. Ibid.

We held that the judge's ruling was erroneous and a new trial was required. We stated that "[e]vidence of prior convictions is generally admissible once the defendant elects to testify." Ibid. (citing Sands, supra, 76 N.J. at 144). We noted that "unlike prior convictions[,] evidence of arrest is not admissible." Ibid. (citing State v. Cooper, 10 N.J. 532, 555-56 (1952); and State v. Hutchins, 241 N.J. Super. 353, 360 (App. Div. 1990)). We stated that:

it [is] equally clear that evidence concerning criminal charges that were dismissed as part of a plea agreement are also not admissible. A criminal charge is more akin to an arrest since the defendant was never convicted of a crime. The mere fact the dismissed charges may appear on a judgment of conviction is irrelevant. Only convictions of crimes may be used to affect credibility. If other crimes charged, but dismissed, are included on a judgment of conviction, those other crimes charged may not be inquired into for purposes of affecting credibility.

[Ibid.]

In our view, defendant's reliance upon Burgos is misplaced. Here, the assistant prosecutor did not "inquire into" dismissed charges. He merely asked defendant whether, by entering a plea, he had received a "far lesser sentence" than he might otherwise have received. There was no mention whatsoever of any dismissed charges.

Moreover, the assistant prosecutor's question was prompted by defendant's assertion that he had entered the plea because he was guilty, which defendant said was different from this case, where he was not guilty. Defendant apparently was attempting to bolster his own credibility by providing evidence that went beyond the limits established by Brunson. The judge properly permitted the assistant prosecutor to make a limited inquiry to rebut defendant's assertion.

Accordingly, we conclude that the judge did not commit reversible error by allowing the assistant prosecutor to question defendant concerning the reasons he entered his plea.

III.

We next consider defendant's contention that the trial judge erred by charging the jury on flight. Defendant contends that the evidence was insufficient to warrant the charge. We disagree.

"Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). "Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." Ibid. Flight is something different from "mere departure." Ibid. "'For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" Id. at 418-19 (quoting State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966)).

In this case, Officers Baez and Bonilla testified that defendant struck Reyes and, after Reyes fell to the ground, defendant rifled through his clothing. The officers said that they activated the lights and the siren on their unmarked police vehicle. According to the officers, defendant looked up, appeared startled, and then ran away. In our view, the evidence was sufficient to justify an inference that defendant departed from the scene with a consciousness of guilt and to avoid apprehension. Therefore, the judge correctly charged the jury on flight.

We recognize that in his testimony, defendant provided a different version of the incident. Defendant testified that he was not aware that the vehicle that approached him in the alley was a police car. He said that he did not see any lights or hear a siren. Defendant asserted that he believed the victim's friends or family members were in the car. He also stated that he did not hear the officers identify themselves as police.

However, the jury had the discretion to accept the officers' version of the incident and reject defendant's testimony as to what had occurred. Moreover, the judge instructed the jurors that if they found defendant's explanation for why he fled to be credible, they "should not draw any inferences of defendant's consciousness of guilt from his departure from the scene of the alleged offense."

We therefore conclude that the judge did not err in charging the jury on flight.

IV.

Defendant next argues that the assistant prosecutor's cross examination deprived him of a fair trial. Defendant contends that the assistant prosecutor impermissibly suggested that defendant had an obligation to produce Cesar as a witness in his defense. Again, we disagree.

In his direct testimony, defendant recounted that on the evening of March 20, 2005, he had been drinking at the White Horse bar with Cesar and they left the bar together. Defendant said that he and Cesar walked into the alley, where defendant struck Reyes in the apparent belief that Reyes was going to strike him.

On cross examination, the assistant prosecutor asked defendant how long he has known Cesar; whether he had seen Cesar since the incident; whether he knew where Cesar lives; and whether he made any effort to find out where Cesar lives. Defendant answered "no" to all of these question, but admitted that Cesar was an eyewitness to the incident. He stated that, "[h]e was with me. He knows what happened."

Defendant's attorney objected to the questioning and said that the assistant prosecutor was attempting to shift the burden of producing a witness to defendant. The judge agreed that defendant was not required to produce any witnesses and said that "the jury will be so instructed." However, the judge permitted the questioning to continue:

Q. Cesar is your friend or was your friend?

A. No, he was my friend.

Q. He was there that night?

A. Of course, he was with me. We were drinking together.

Q. I'm talking about in the alley, he was with you?

A. Of course, we were going home.

. . . .

Q. Do you have any reason to believe that Mr. Cesar would not have seen you strike the victim?

A. I wouldn't be able to say.

Q. Why?

. . . .

A. I don't know. I don't know. I don't know. We were on the alleyway. He was by my side. When the guy raised his hand, I thought he was going to strike me and I hit him first. The car was coming fast. He ran straight in the alleyway. I ran backwards. I didn't' know who it was in the car.

. . . .

Q. I'll repeat the former question. Do you know of any reason why Cesar would not see what happened right next to him?

. . . .

A. Of course not.

Q. What does of course not mean?

A. No is no.

Q. So you know of no reason why he wouldn't see what happened right next to him?

A. No, no, I wouldn't be able to say.

Q. But he is a witness?

A. Of course.

Q. And you're the only one who knows his location or knew his location, is that correct?

A. I don't know where he lives.

Q. You knew where he lived, right?

A. No, sir, and I don't have a need to lie to you.

Q. Okay, so how often did you meet this friend of several years?

A. He used to come to my house. We would go out in my car. I don't know where he lived.

Q. So you knew him for two years. He used to come to your house, and you had no idea where he lived at that time?

A. No, because there's - no, because there's no need for a person to know where you live for you to be able to go out and drink together.

The State maintains that the questioning was proper because the assistant prosecutor was endeavoring to lay a foundation for a charge under State v. Clawans, 38 N.J. 162 (1962). In that case, the Court held that in general the "failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. The Court stated that, "[t]his principle applies to criminal as well as civil trials, to the State as well as the accused." Id. at 171.

However, the Clawans inference is not permitted when the non-production of a witness can be "reasonably explained by [the] inability to secure the testimony rather than fear of its content." State v. Velasquez, 391 N.J. Super. 291, 308 (App. Div. 2007). "Similarly, when the testimony to be expected from that witness is unimportant to the litigant's case, cumulative or inferior to testimony already presented on that issue, it is more reasonable to infer that non-production is explained by the fact that the testimony is unnecessary." Id. at 308-09. Moreover, the Clawans inference should not be permitted against a defendant in a criminal case, "whenever it is reasonable to infer that the defendant's decision to do without a witness can be explained by the defendant's reliance on the presumption of innocence[.]" Id. at 309. However, courts have permitted the inference to be drawn when "the defendant has presented evidence to inject an issue, such as an alibi or an alternate explanation for his or her appearance at the scene of the crime." Ibid.

Here, the State properly endeavored to lay the foundation required for the Clawans charge. We note that defendant did not rely in this case on a general denial of guilt but chose instead to assert that he struck Reyes in the belief that Reyes was going to strike him. Defendant also stated that he did not see flashing lights on the police vehicle or hear a siren. It is undisputed that Cesar was in the alley at the time, and he could have supported defendant's version of the incident. Nevertheless, defendant maintained that had not seen Cesar since the incident and he did not know where to find him.

In any event, the judge denied the State's request for the Clawans charge and precluded the assistant prosecutor from commenting on defendant's failure to call Cesar as a witness in the case. We are convinced that the assistant prosecutor's questioning of defendant regarding Cesar did not improperly suggest that defendant had the burden to produce him as a witness. Indeed, in his charge, the judge specifically instructed the jury that:

[t]he burden of proving each element of the charge rests with the [S]tate. That burden of proof never shifts over to a defendant. Defendant in a criminal case has no duty or obligation to prove his innocence or to offer any proof relating to it.

We must assume that the jury understood this instruction and followed it. State v. Loftin, 146 N.J. 295, 390 (1996).

V.

We turn to defendant's contention that the judge erred when he instructed the jury regarding the resisting arrest charge. Here, the judge followed the current model charge. Model Jury Charge (Criminal), "Resisting Arrest - Flight Alleged" (2007). However, the judge added the following remarks:

In this case, the allegation was that the defendant fled when the patrol came up. There was testimony that it was an unmarked vehicle, but it had all of the other indications of being a police vehicle, such as flashing or - I think they call them wig wag lights. I don't' think that term was used here. They're bright, bright, bright, bright. You've seen them, I assume, somewhere at some point in time. And that they had red flashing light on the dashboard, okay, and that they use[d] the sirens. There's also testimony that that didn't happen at all. Okay. That's for you to decide. There is testimony that the defendant then fled, and that the police had a chase, as the evidence was put to you about that, and he was finally arrested after some distance and some time after a partial motor vehicle and then foot chase by Officers Baez and Bonilla, and the assistance of apparently other police units. The defendant has denied - didn't deny that he fled. He just says that I didn't flee because they were police. I thought they were relatives or friends of [defendant]. And he was afraid of a confrontation with them, and so therefore, he fled. That's for you to judge and decide. His purpose for running was not to evade arrest, in other words, in simple terms, but to avoid confronting friends or relatives of the victim who, he suggested, were in that car. That is a question of fact for you to decide, ladies and gentlemen.

Defendant argues that the charge was misleading. He contends that the judge erred by injecting into the case facts that were not part of the record. According to the defendant, the charge invited the jurors to substitute their own possible observations for evidence introduced at trial. Defense counsel did not raise these issues in the trial court. Therefore, we consider whether the judge's remarks were erroneous and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2.

In our view, the trial judge should not have mentioned "wig wag lights" in his instructions. We note that, when defendant moved for a judgment of acquittal after the State rested, the judge referred to the lights on the police vehicle as "wig wag headlights" that "flash alternatively, blink, blink, blink." Defense counsel did not dispute the judge's characterization of the evidence at that time. Nevertheless, the State did not present any testimony specifically identifying the lights on the police vehicle as "wig wag lights." Moreover, the judge should not have suggested to the jury that they might have seen such lights "at some point in time."

However, the judge's remarks do not rise to the level of reversible error because, when viewed in the context of the charge as a whole, the statements were not "clearly capable of producing an unjust result." Ibid. Officer Bonilla testified that the police vehicle had "headlights on flashing back and forth." Bonilla stated that when the police vehicle entered the alley, it had the lights and flashers on. He said that the flashers were "high beams." Defendant also testified that the vehicle that entered the alley had "high beams."

In our view, the judge's comments were not an invitation to the jury to render a verdict based on facts not in evidence, particularly since the judge instructed the jury to decide the case based solely on the evidence presented during the trial. We conclude that the judge's remarks, although erroneous, were harmless.

VI.

Last, we consider defendant's contention that the judge incorrectly evaluated the aggravating factors when sentencing defendant. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law).

Defendant argues that the judge erred in his findings on aggravating factor 3 because the judge stated that he was disturbed by the fact that defendant previously had engaged in "this very conduct." Defendant states that he was previously convicted of theft, not robbery. He therefore argues that the judge impermissibly inferred guilt with respect to a charge on which defendant had not admitted guilt.

However, the judge specifically noted that defendant only pled guilty to theft. The judge properly took note of the circumstances of that offense, and did not declare that defendant was guilty of robbery. In our view, the judge's comments were proper and supported his finding of aggravating factor 3.

We have considered all of defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-2855-06T4

March 11, 2008