STATE OF NEW JERSEY v. TERRENCE R. JENKINS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1561-06T41561-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE R. JENKINS,

Defendant-Appellant.

________________________________

 

Submitted January 13, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

05-08-1133.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Susan Brody, Assistant Deputy

Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Terrence R. Jenkins was tried before a jury over a period of eight days. The jury found defendant guilty of second-degree eluding, N.J.S.A. 2C: 29-2b, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). The same jury acquitted defendant of third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3), and deadlocked on third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), and third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.

After declaring a mistrial on the deadlocked offenses, and denying defendant's motion for a new trial, the court sentenced defendant to a term of seven years on the eluding conviction, and to a concurrent one-year term on the resisting arrest. The court also imposed the mandatory fines and penalties.

After reviewing the record before us, and in light of prevailing legal standards, we affirm. We gather the following facts from the evidence presented at trial.

I

At approximately 10:45 a.m. on August 18, 2004, New Brunswick Police Department Lieutenant Paul Schuster and Detective Christopher Plowucha were performing undercover narcotics surveillance near an apartment complex on Commercial Avenue in New Brunswick. At this point, they observed defendant, who was sitting in a parked silver Lincoln Navigator, engage in what appeared to be a drug transaction with two men who were standing outside the vehicle's passenger-side window. As defendant left the area, the officers attempted to follow, but lost defendant's car in traffic.

Plowucha and Schuster returned to the Commercial Avenue apartment complex approximately one hour later. There were a total of six officers at the scene when they arrived, Plowucha, Schuster, detectives Mark Pappas, Michael Sutton, patrolman Scott Gould, all from the New Brunswick Police Department, and Sergeant Steven Weitz of the Middlesex County Prosecutor's Office. The six officers were wearing civilian clothes, and were driving three unmarked police vehicles.

Defendant's Lincoln Navigator was parked on the street along the apartment complex's parking lot. The officers positioned two of their vehicles in near proximity to defendant's Navigator, in an attempt to block his possible escape. The third vehicle, containing Lieutenant Schuster and Detective Plowucha, was farther down the street. The officers activated their "visor lights" in all three vehicles to indicate to defendant that they were law enforcement personnel.

Gould and Sutton got out of their vehicle as Pappas exited the second police car. Though in plainclothes, the officers testified that they displayed their badges from "neck chains" and verbally identified themselves as police officers as they approached defendant in his Navigator. As the officers approached defendant's vehicle on foot, defendant made a sudden right turn, jumping the adjacent curb, and driving into the apartment complex's parking lot.

One officer responded on foot, while the other officers maneuvered their two vehicles for pursuit. Defendant drove through the parking lot at a high rate of speed, and headed for an exit on the opposite side of the lot. At this same time, Plowucha and Schuster activated their vehicle's police siren and proceeded to block defendant's car.

Plowucha testified that as defendant pulled out of the parking lot, he unintentionally struck defendant's car with his vehicle. Defendant then left his vehicle and fled on foot. Pappas, Gould, and Weitz followed in pursuit, continuing to demand for defendant to surrender. As they ran behind him, Pappas and Weitz saw defendant discard a small package or "bundle." Weitz stopped running to pick up the item.

Pappas caught up with defendant in an abandoned lot, and tackled him to the ground. By that point, Plowucha and Gould arrived and assisted Pappas in subduing defendant. Defendant continued to resist, forcing the officers to use what Pappas described as a "compliance hold" on defendant. Defendant was not injured. The officers found $840 in cash in defendant's pocket, and an additional $24 dollars in the Lincoln Navigator. The discarded "bundle" proved to contain 0.37 grams of heroin, divided into five separate plastic bags.

Although defendant did not testify in his own defense, defense counsel called three witnesses who testified as to what they saw when the police arrived in the parking lot. The first witness was Tiffany Thompson, an acquaintance of defendant who was visiting her sister who resided in the apartment complex on Commercial Avenue. Thompson testified that shortly before noon, she saw defendant's Lincoln Navigator pass through the apartment complex parking lot. Thompson waved; and defendant "tooted the horn" in response. In her estimation, defendant did not seem to be in a rush as he drove.

As she turned her back, Thompson heard a loud crash. She looked up to see defendant being chased by several individuals. She did not see any identifying badges on the pursuers, but acknowledged that she only saw them from behind. She left the scene immediately thereafter. She did not hear any police sirens during the entire incident.

J.J. was the second defense witness. He was in sixth grade at a nearby school at the time of defendant's arrest. His grandmother lived in the neighborhood where defendant was arrested. He knew defendant as the coach of a local sports team on which he played.

According to J.J., on the day in question he was walking to the store from his grandmother's house when he heard a sound. He described it as "[w]hen a car makes a hard turn like a skid like sound." He looked up to see a vehicle slam into defendant's silver Navigator. He did not hear any sirens, and did not see any police lights.

Immediately after the collision, J.J. saw defendant get out of his vehicle and run off through the nearby field. He saw at least two people wearing "guns on the side," whom he assumed were police officers, chase after defendant. He did not see the presumed officers wearing badges. Nor did he hear the officers tell defendant to stop. He acknowledged, however, that the men were running away from him at the time.

J.J. testified that, at one point, defendant stopped running, and the officers "got him down, put handcuffs on him and like rough, they roughed him up." He saw the officers hit defendant at least once after he had been handcuffed; the police then dragged defendant to their vehicles.

Kelly Seawright is J.J.'s aunt. She arrived at the scene looking for J.J. because she had just sent the child to the store. J.J. gave the following description as to what occurred when his aunt arrived:

[Aunt Kelly Seawright] was walking down Abeal Street to see what was going on and one of the cops like was right there, there was a Caucasian cop and he was right there and he was like talking to her for a minute. All I know [sic] they started grabbing her and another one like big African American cop he came over there and it was like they both were grabbing her and I remember seeing the big African American cop hit her in the back of the head and throw her up against this gray pickup truck that was right there, and he was grabbing her, putting handcuffs on her and the African American cop like grabbed her and threw her in the car, a regular police car, slammed the door.

Kelly Seawright was defendant's third witness. She knew defendant from having worked with him at Johnson and Johnson, and from having previously patronized a hair salon that defendant owned. Seawright lived in the apartment complex at 33 Commercial Avenue. She heard a loud crash as she was waiting for her nephew J.J. to return from the store. After determining that J.J. was not injured, she decided to investigate what had occurred.

According to Seawright, she saw what she characterized as an accident between defendant's Navigator and another vehicle. She did not immediately see defendant. At one point, she saw defendant in a nearby field with several men, whom she concluded were narcotics officers, "over top of him." After the officers placed defendant in a squad car, she approached the area and received permission to speak with defendant through the police car's window. One of the officers then yelled at her to leave the area because she was interfering with the investigation.

That same officer crossed the street and approached her belligerently. When Seawright remarked: "you must be a rookie," the officer responded: "you're going to jail." She testified that she was handcuffed and beaten by all of the officers present. According to Seawright, the officers hit her in the back of the head, kicked her, and slammed her face into a parked truck. She bit one of the officers in the course of the struggle. She was arrested, and pled guilty to third-degree aggravated assault. She was sentenced to a one-year term of probation, and was ordered to pay fines.

II

On the third consecutive day of deliberations, the jury sent out a note to the trial judge that read: "We cannot make a hundred percent unanimous decision on the number one charge [possession of heroin] and we voted a few times together." The trial judge brought the jury into the courtroom, and had the following exchange with the jurors:

THE COURT: Ladies and gentlemen of the jury, I'm going to ask the foreperson . . ., I have received your note. For the benefit of the alternates I will read the note. "We cannot make a hundred percent unanimous decision on the number one charge [possession of heroin] and we voted a few times together." My question to you . . ., as the foreperson of this jury do you believe that if given additional time the jury could reach a unanimous verdict on all counts?

THE FOREPERSON: I don't think so. Pretty much of us [sic] have made up our minds on number one and we have voted, three voted and we got almost the same number of counts.

THE COURT: At this time then I am going to take the verdict on those counts upon which you are unanimous.

THE FOREPERSON: Okay.

COURT CLERK: How do you find the defendant, Terrence Jenkins, as to the charge of possession of heroin with intent to distribute?

THE FOREPERSON: We find the defendant, Mr. Terrence Jenkins, as to the charge of, with intent to distribute?

COURT CLERK: Yes.

THE FOREPERSON: Not guilty.

COURT CLERK: Is the verdict returned a unanimous verdict of all 12 jurors?

THE FOREPERSON: Yes. On that charge.

COURT CLERK: How do you find the defendant, Terrence Jenkins, as to the charge of possession with intent to distribute heroin well within 1000 feet of school property?

THE FOREPERSON: We have not voted on that pending number one charge.

THE COURT: Ladies and gentlemen of the jury, at this time based upon your response I am going to return you to the jury room. I am going to indicate to you that the case took a period of time over the course of three weeks. You've had the opportunity to listen to a number of witnesses in this case and you've asked for several read-backs. Based upon your responses, your indication was that you could not make a unanimous decision with respect to number one charge and I believed you to mean that you had reached a unanimous verdict on the remaining charges but it appears you have not, correct?

THE FOREPERSON: Correct. So far it's on number one charge and number three that we have not answered. We haven't voted.

THE COURT: I am going to ask you to return and continue your deliberations with respect to all of the counts. I have not received any verdict at this time or recorded any verdict, all right? So I'm going to ask you to return to the jury room to continue in your deliberations.

After the jury returned to deliberate further, defense counsel moved for a mistrial. Counsel argued that since the jury returned a verdict of not guilty with respect to possession with intent to distribute, it was improper for the court to instruct the jury to continue deliberating as to possession with intent to distribute within a school zone. The trial judge responded as follows:

THE COURT: The note certainly indicated and upon questioning indicated that with additional time the jury could not make a unanimous decision on the number one charge. The note did not indicate nor did the foreperson indicate that there was a question as to count 3. In terms of whether or not the response was logical or illogical this Court does not entertain the rationale nor the jury's understanding at this point I am dealing with the responses by the foreperson. Insofar as it appeared as though a vote was taken on one but the foreperson indicated there was no vote taken on count 3 and therefore no determination one way or the other nor the ability for the Court to determine they are not hung on that count the Court with the purpose of finding out, the Court with the purpose to determine that sent them back to continue their deliberations. Surely had the indication been that that matter was voted on and that they remained or were also undecided or non unanimous as to that count could have proceeded but at this point based upon the foreperson's response the Court returned them to continue their deliberations and at this time we are going to recess for the lunch hour. I'm going to let the jury also recess and bring them back at 1:20. The request to declare a mistrial at this time for those reasons is denied.

The trial judge then announced to the attorneys her intention to accept a partial verdict from the jury. The judge also indicated that she would reserve decision as to whether count three had to be dismissed as a matter of law because of the "not guilty" verdict on count two, until she received the remainder of the jury's verdict.

In its ultimate verdict, the jury found it was deadlocked with respect to counts one and three (possession of heroin and possession of heroin with intent to distribute within 1000 feet of school property.) The jury found defendant not guilty on count two, possession of heroin with intent to distribute, and guilty of resisting arrest and eluding.

III

Against these facts, defendant now appeals raising the following arguments.

POINT I

THE COURT ERRED IN DENYING THE DEFENSE MOTION FOR MISTRIAL AFTER THE COURT'S ABORTED ATTEMPT TO TAKE A PARTIAL VERDICT ON THE THIRD DAY OF DELIBERATIONS.

POINT II

BECAUSE THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE GUILTY VERDICTS ON THE ELUDING AND RESISTING CHARGES, THOSE CONVICTIONS MUST BE SET ASIDE. IN THE ALTERNATIVE, THOSE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE CREDIBLE EVIDENCE, AND MUST BE VACATED.

POINT III

DEFENDANT'S CONVICTION ON THE CHARGE OF RESISTING ARREST BY FLIGHT MUST BE MERGED INTO HIS CONVICTION ON THE ELUDING CHARGE. (Not Raised Below)

We reject these arguments and affirm. As to Point I, defendant's reliance on State v. Czachor, 82 N.J. 392 (1980) and State v. Roach, 222 N.J. Super. 122 (App. Div. 1987), certif. denied, 110 N.J. 317 (1988), is misplaced.

In Czachor, supra, the Supreme Court held that it was error for a trial judge to continue giving a jury supplemental instructions, and to direct it to deliberate further, after the jury had repeatedly indicated that it was deadlocked and could not reach a unanimous decision. 82 N.J. at 402. The Court held that such a practice places improper pressure on dissenting members of the jury, subtly coercing them to sign on to a verdict in which they do not actually believe. Ibid.

Similarly, in Roach, supra, the Appellate Division held that a mistrial was warranted when the jury declared that it was irreconcilably deadlocked. 222 N.J. Super. at 129. The court noted that:

The mistrial due to the deadlocked jury was declared by the trial judge only after being repeatedly informed by the jury that it was unable to reach a unanimous verdict. After having deliberated some two and one-half hours, the jury sent a note to the judge stating it was deadlocked. With consent of counsel, the trial judge responded by asking the jury if it would be helpful to continue deliberations on the following day or whether it was hopelessly deadlocked. By note, the jury again indicated it was hopelessly deadlocked. The jury was then brought in and the judge inquired of the foreman whether the note stating that it was hopelessly deadlocked was a consensus. The foreman replied that it was. The mistrial was then declared.

[Id. at 128-29.]

Here, by contrast, the jury indicated that it was deadlocked only with respect to count one of the indictment. There is no indication in the record that the jury had even begun deliberating as to the other counts, unlike in Czachor and Roach, where the jury was irreconcilably deadlocked with respect to all counts. See 82 N.J. at 402; 222 N.J. Super. at 129.

The argument raised in Point II and III lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As to the merger issue, unlike the facts in State v. Wallace, 313 N.J. Super. 435 (App. Div. 1998), aff'd on other grounds, 158 N.J. 552 (1999), the two offenses here involved two separate factual predicates. The significance of this fact is made clear in the following passage from Wallace:

In the circumstances established, the conviction for disorderly persons resisting arrest should have been merged with the conviction for second degree eluding. All of the elements of the lesser offense are contained in the greater. N.J.S.A. 2C:1-8a(1); State v. Johnson, 203 N.J. Super. 127. 134-35 (App. Div.), certif. denied, 102 N.J. 312 (1985) ("N.J.S.A. 2C:1-8[a(1)] . . . provides that a defendant may not be convicted of two offenses if one is a lesser included offense of the other."). Moreover, the proofs established no separate crime as a matter of fact. Defendant was arrested immediately upon the conclusion of the vehicular chase as he "attempted" to run from his automobile. The [car] chase was the factual predicate of the eluding conviction. At its conclusion, defendant had no opportunity to engage in any separate resistive conduct and, therefore, cannot be treated as if he had committed an additional, distinct crime apart from second degree eluding.

[Id. at 438-39 (emphasis added).]

Here, the second degree eluding involved driving at a high rate of speed through the parking lot of the apartment complex in an effort to elude the officers driving in their vehicles. The fourth degree resisting arrest involved defendant fleeing his Navigator on foot, and struggling with the arresting officers as they attempted to handcuff him in the field. These were two separate crimes, directed against separate victims. Under these circumstances, merger was not warranted.

Affirmed.

 

The State has decided not to seek a new trial on the deadlocked offenses.

(continued)

(continued)

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A-1561-06T4

June 3, 2009