STATE OF NEW JERSEY v. DWAYNE AMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0428-06T40428-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE AMES,

Defendant-Appellant.

_______________________________

 

Submitted December 16, 2008 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0556 and Accusation No. 04-08-0756.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Tried to a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b (Count One); third-degree receiving stolen property (a motor vehicle), N.J.S.A. 2C:20-7a (Count Two); and third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c (Count Three). On May 19, 2006, the trial court sentenced defendant on Count One to an eight-year term of imprisonment, and to a concurrent five-year term of imprisonment on Count Two. Count Three was merged with Count Two. In addition, the court also imposed appropriate fines and penalties and ordered that defendant pay restitution of $2,600 to the owner of the stolen motor vehicle. Lastly, because defendant was on probation from an August 12, 2004 conviction for third-degree unlawful possession of a weapon, the court vacated defendant's prior sentence and resentenced him to an additional four-year term of imprisonment to run consecutive to the sentence imposed on Count One.

On appeal, defendant argues:

POINT I.

THE COURT ERRED IN DENYING THE DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE, BECAUSE THE STATE HAD FAILED TO PRESENT CREDIBLE EVIDENCE, SUFFICIENT TO DEFEAT THE MOTION, THAT DEFENDANT WAS THE DRIVER OF THE STOLEN VAN.

POINT II.

IT WAS ERROR FOR THE COURT TO ADMIT TESTIMONY AS TO DEFENDANT'S DRIVING WITHOUT A LICENSE ON OTHER OCCASIONS, AND ITS PURPORTED "LIMITING" CHARGE AS TO THE ADMISSION OF OTHER-CRIMES EVIDENCE WAS FUNDAMENTALLY FLAWED. (Partially Raised Below).

POINT III.

THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS OF DEFENDANT BY OFFICER LONG WERE THE RESULT OF AN IMPERMISSIBLY SUGGESTIVE SHOW-UP PROCEDURE, AND HENCE, SHOULD HAVE BEEN EXCLUDED FROM THE TRIAL. (Not Raised Below).

POINT IV.

THE AGGREGATE TWELVE-YEAR SENTENCE IMPOSED ON DEFENDANT ON THESE CHARGES AND ON THE VIOLATION OF PROBATION WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES, AND MUST BE VACATED.

A. DEFENDANT SHOULD BE RESENTENCED TO A MID[-]RANGE TERM ON THE INDICTMENT.

B. DEFENDANT SHOULD BE RESENTENCED TO A THREE-YEAR TERM ON THE VIOLATION OF PROBATION.

C. THE TWO TERMS SHOULD [RUN CONCURRENT.]

For reasons that follow, we reverse.

I.

The facts leading to defendant's arrest are disputed. Testifying on behalf of the State were Patrolmen Pedro Perez, Timothy Long, and Paul Marinelli of the Trenton Police Department. The following is a synopsis of their relevant testimony.

On December 23, 2004, at approximately 8:40 p.m., Trenton Patrolmen Perez and Long observed what they believed to be a stolen Dodge Caravan proceeding on Pine Street, Trenton, at or near its intersection with Pennsylvania Avenue. While Perez operated their patrol car, the officers followed the Dodge Caravan. Long ran the license plate number of the vehicle and confirmed that it had been reported stolen by its owner. On receiving that confirmation, the officers called for backup and activated their emergency lights in an attempt to stop the vehicle. Following a short pursuit, the officers attempted to cut the stolen vehicle off by turning onto Trent Avenue. As they made this maneuver, the driver of the stolen vehicle, later identified as defendant, bailed out of the motor vehicle and began running down St. Joe's Avenue. Long, with a flashlight in his hand, pursued defendant on foot, while Perez called in the description of the driver, describing him by gender, race, height, age and the clothing worn.

Long chased defendant until defendant jumped over a fence and Long lost sight of him. However, during the pursuit, defendant looked over his shoulder "a couple" of times at Long, allowing Long to observe defendant's face. Perez also saw the side of defendant's face for approximately two seconds as defendant ran away from the stolen vehicle.

Approximately forty-five seconds after defendant bailed from the stolen vehicle, Perez observed defendant walk toward him from between two houses. Perez and a third officer, Patrolman Marinelli, placed defendant under arrest and handcuffed him. After defendant was in custody, Long joined the two other officers and identified defendant as the operator of the stolen vehicle.

Contrary to the State's witnesses, defendant denied operating the stolen motor vehicle and asserted that the police had misidentified him as its operator. Defendant testified that at approximately 8:00 p.m. on December 23, 2004, his friend, Christopher Rampolla, picked him up at his home. They then drove to Rampolla's friend's house, intending to proceed to the Caribbean Bar located in the neighborhood patrolled by Patrolman Perez and Long to purchase a case of beer. While parked near Rampolla's friend's house, defendant left Rampolla's vehicle and walked toward the Caribbean Bar. Rampolla remained in the motor vehicle.

Defendant did not go to the bar, but instead proceeded to a nearby location, intending to purchase marijuana. However, defendant did not find anyone to purchase marijuana from that evening. As defendant walked back toward Rampolla's car, he observed Perez and Long walking toward him. As he approached the officers, defendant was placed under arrest. Defendant denied that at the time of his arrest he had been breathing heavily or sweating.

During the trial, the State cross-examined Rampolla as to permitting defendant to operate his motor vehicle on prior occasions, knowing that defendant did not possess a valid driver's license. During cross-examination of defendant, the State, over objection of defense counsel, questioned defendant concerning his operating a motor vehicle while unlicensed.

Initially, the court sustained the objection, but after hearing further argument from the State, the court reversed its ruling. In doing so, the court stated: "What about the argument that he's on probation, and he's an unlicensed driver in a vehicle? If he's stopped by the police, he won't be able to exhibit a license, and that . . . would explain why he would flee from the police, not to mention the fact that the vehicle itself is stolen." Accordingly, the court admitted the testimony but did not provide the jury with a limiting instruction as to the proper consideration of the evidence. At the conclusion of trial, the court provided the following instruction to the jury on the use of the evidence concerning defendant's operation of a motor vehicle while unlicensed.

You have heard evidence that the defendant, Mr. Ames, previously used marijuana, and Mr. Ames testified that he was attempting to purchase marijuana on December 23, 2004. You have also heard testimony that the defendant, at times prior to December 23, 2004, operated motor vehicles without a driver's license.

You may not, in your deliberations, conclude that because the defendant previously used marijuana and operated motor vehicles as an unlicensed driver that he is therefore guilty of the crimes charged here.

You may, however, in your deliberations, consider the defendant's marijuana use and his status as an unlicensed driver, together with all other evidence presented at trial, in your deliberations and in your attempt to reach verdicts.

Whether evidence of prior marijuana use or unlicensed operation of motor vehicles has any relevance in this case is for you to decide. You may decide that the evidence does not support the [S]tate's contentions, and is not helpful to you at all. In that case, you must disregard that evidence.

On the other hand, you may decide that the evidence does support the [S]tate's contentions, and in that case you may use it for that specific purpose.

[(Emphasis added).]

II.

In Point II, defendant does not challenge the admission of his testimony that he had previously smoked marijuana. Rather, he challenges the testimony that he operated motor vehicles while unlicensed. Defendant argues that the testimony was not relevant to any material issues at trial. He asserts that the trial court erred in admitting the evidence, determining that the evidence was indicative of his consciousness of guilt and provided a motive for him to flee from the police. Alternatively, defendant contends that, even if the court properly admitted the evidence, it did not "provide the jury with an instruction as to how to evaluate the evidence." We agree.

N.J.R.E. 404(b) provides:

Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The purpose of the rule is "to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged." State v. Barden, 195 N.J. 375, 388 (2008). The rule is one of "exclusion" rather than "inclusion," and is intended to bar admission of other conduct when such evidence is offered solely to establish the "forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997). However, N.J.R.E. 404(b) does not preclude other conduct evidence in all instances. It allows admission of such evidence when relevant to prove some fact genuinely in issue. State v. Marrero, 148 N.J. 469, 482 (1997); State v. Oliver, 133 N.J. 141, 151 (1993). Other conduct evidence is admissible where it is (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value as not to be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992) (citing Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)); see also Barden, supra, 195 N.J. at 389.

That other conduct evidence prejudices defendant's case is not by itself a reason to exclude otherwise admissible and probative evidence. State v. Frost, 242 N.J. Super. 601, 620-21 (App. Div.), certif. denied, 127 N.J. 321 (1990). A wide range of evidence is admissible when the motive or intent of the accused is material. State v. Covell, 157 N.J. 554, 565 (1999).

If evidence of other conduct is admitted, the jury must be instructed as to the limited purpose of the evidence and the restricted significance that the jury can attach to it. Barden, supra, 195 N.J. at 390; see also N.J.R.E. 105. The court's limiting instruction must explain the permitted and prohibited use of the evidence. Barden, supra, 195 N.J. at 390. Moreover, "[t]he instruction should be given when the evidence is presented and in the final charge to the jury." Ibid.

An appellate court will generally give deference to a trial court's determination regarding the admissibility of the evidence under N.J.R.E. 404(b). Ibid. "'Only where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.'" Id. at 391 (quoting State v. Marrero, 148 N.J. 469, 483 (1997)).

Here, defendant argues the evidence concerning his operation of a motor vehicle while unlicensed was not relevant to any issues before the jury and that the only relevant issue was that of identity. We disagree. To prove the eluding charge, the State not only had to establish defendant's identity, but also to prove that he "knowingly fle[ed] or attempt[ed] to elude any police or law enforcement officer." Accordingly, we agree with the trial court's reasoning that if defendant was unlicensed while operating the stolen vehicle and "[i]f [he is] stopped by the police, he [will not] be able to exhibit a license, and that [] would explain why he would flee from the police, not to mention the fact that the vehicle itself is stolen." Nevertheless, we are satisfied that the court's failure to properly provide the jury with a limiting instruction, both when the evidence was introduced and at the end of the case, requires reversal.

Defendant neither objected to the trial court's failure to provide a limiting instruction when the evidence was introduced, nor to the final jury instructions. Because defendant raises these objections for the first time on appeal, we consider the issues under the plain error rule. R. 2:10-2. Under Rule 1:7-2, "a defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Thus, the court will reverse on the basis of unchallenged error, only if the error was "clearly capable of producing an unjust result." R. 2:10-2; Barden, supra, 195 N.J. at 394.

"[C]lear and correct jury instructions are essential for a fair trial." State v Koskovich, 168 N.J. 448, 507 (2001) (quotation and citation omitted). "The charge must be read as a whole in determining whether there was any error." Torres, supra, 183 N.J. at 564. "[A]n erroneous charge will rarely stand on the ground that the error was harmless." Barden, supra, 195 N.J. at 394.

Here, the court failed to provide the jury with a limiting instruction concerning its use of the disputed evidence when the court admitted the evidence. In addition, although the court provided the jury with an instruction at the end of the trial, the instruction was inadequate. The instruction not only failed to inform the jury affirmatively of the limited purpose (defendant's motive for fleeing) on which it could consider the evidence, but also failed to inform the jury of the prohibitive use of the evidence. Barden supra, 195 N.J. at 390. The instruction left the door open for the jury to use the evidence for any purpose it desired.

This open-door instruction permitted the jury to infer that defendant was not a law-abiding individual. We are satisfied that even if relevant, without the limiting instruction, the probative value of the evidence was outweighed by its prejudice to defendant. Cofield, supra, 127 N.J. at 338.

Because we reverse the trial court's failure to properly instruct the jury on the use of the N.J.R.E. 404(b) evidence concerning defendant's prior operation of motor vehicles while unlicensed, we do not address defendant's remaining arguments.

 
Reversed.

The second prong of the test "may be eliminated where it 'serves no beneficial purpose.'" Barden, supra, 195 N.J. at 389 (quoting State v. Williams, 190 N.J. 114, 131 (2007)).

(continued)

(continued)

12

A-0428-06T4

July 22, 2009