STATE OF NEW JERSEY v. SHAUN R. CARTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5006-07T45006-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAUN R. CARTER,

Defendant-Appellant.

 

Submitted: September 30, 2009 - Decided:

Before Judges Collester and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-2869.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Roseann A. Finn, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Shaun R. Carter, appeals from his conviction and the sentence imposed. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Defendant was charged in Camden County Indictment Number 07-09-2869 with third-degree unlawful possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); third-degree unlawful possession with cocaine in a quantity less than one-half ounce with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); fourth-degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1) (count three); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count four). Tried to a jury, defendant was acquitted of the cocaine possession charge contained in count one, but convicted on the lesser-included disorderly persons offense of wandering in a public place with the purpose of obtaining or selling a controlled dangerous substance, contrary to N.J.S.A. 2C:33-2.1. Defendant was also found guilty of the fourth-degree charge of hindering apprehension or prosecution on count three. The jury acquitted defendant of the charges contained in counts two and four of the Indictment.

The trial judge sentenced defendant to a term of eighteen (18) months imprisonment on his fourth-degree hindering apprehension conviction on count three, and to a concurrent term of six (6) months imprisonment on his disorderly persons conviction on count one. Applicable mandatory penalties and assessments were imposed, defendant was given appropriate jail credits, and he was required to provide a DNA sample.

Subsequent to entry of the judgment of conviction, defendant filed a pro se motion for a change of sentence pursuant to R. 3:21-10, along with the notice of appeal.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE JURY VERDICT RETURNED ON COUNT III AND COUNT I (LESSER INCLUDED) WERE AGAINST THE WEIGHT OF THE SUBSTANTIAL CREDIBLE EVIDENCE ADDUCED AT TRIAL AND SHOULD BE VACATED.

1. The testimony at trial was wholly insufficient to support a finding that Defendant violated N.J.S.A. 2C:29-3b(1) Hindering Apprehension of Prosecution.

2. Defendant's conviction on the Count I lesser included offense of Wandering in violation of N.J.S.A. 2C:33-2.1 was wholly unsupported by the testimony presented at trial and the charge to the jury thereon was "plain error."

POINT II

THE SENTENCE IMPOSED BY THE COURT WAS GROSSLY EXCESSIVE AS A MATTER OF LAW.

The charges against defendant arose from an incident occurring on June 13, 2007 in the City of Camden. The evidence adduced by the State at trial, if credited, disclosed the following. At approximately 9:00 p.m. on June 13th, Camden City police officers responded to the 1770 block of Norris Street, near its intersection with Dayton Street, in response to a complaint by a concerned resident of drug activity in the area. Officer Benjamin Voutier arrived at the scene in a marked patrol vehicle with Officer Gary Towers. Officer Voutier testified he observed a black female, later identified as Vivian Bowers, and a black male, later identified as Kiante Collins, standing alongside a building located at 1782 Norris Street, and saw what he described as a hand-to-hand transaction, with the female handing the male some paper currency, and the male handing her something in return. As the officers exited their patrol vehicle to investigate, Mr. Collins walked in one direction and Ms. Bowers in another. Officer Voutier stopped Ms. Bowers when he saw her trying to conceal something in a can of beer she was holding, at which point Officer Voutier saw two bags of what he described as crack cocaine in Ms. Bowers' hand. When Ms. Bowers tried to run away, Officer Voutier detained her, she threw the drugs to the ground, and they were retrieved by Officer Towers; she was arrested. Mr. Collins was also detained and arrested; although no drugs were found in his possession, he was in possession of paper currency in the amount of $194.

Lieutenant Jason Pike of the Camden Police Department arrived at the 1782 Norris Avenue location as Ms. Bowers and Mr. Collins began walking in opposite directions, and he observed Ms. Bowers and Mr. Collins being detained and arrested. Lieutenant Pike is a supervisor in the Department's Supplemental Patrol Division which handles enforcement and community outreach operations. As part of his assignment, Lieutenant Pike receives information and concerns from people living in various neighborhoods, testifying that "one of the biggest concerns in that neighborhood is drugs and drug dealing." He explained that he had received information concerning drug dealing at the 1782 Norris Avenue location, which he had relayed to the patrol officers and they, in turn, had dispatched officers to that scene. He explained what transpired at 1782 Norris Avenue after he arrived, in the following colloquy on direct examination:

Q. Okay, and what did you do when you arrived at the area?

A. After the two people outside were stopped by uniformed officers, myself and the other supervisor went to the front door and we knocked on the door. I wanted to see who lived there for the complaint that I had received from somebody in the community. And I knocked on the door, that was opened by the person that lives inside.

Q. Do you remember that person's name?

A. His name was Campbell.

Q. Is that Glen Campbell?

A. Yes, it is.

Q. And what did you see when you spoke with Mr. Campbell, did anything catch your attention?

A. Yes. When I was banging on the door I heard some scuffling - like somebody inside. When he opened the door I'd seen a female with some CDS which I recognized to be drugs. At that point she recognized me as being a police officer in full uniform and two other guys were in the house. All three quickly jumped off the couch and made a run upstairs with two sergeants, police sergeants, in full uniform following them, chasing after them.

Q. Who were those sergeants?

A. It was Sergeant Arthur, who's since retired, and Sergeant Morris.

Lieutenant Pike then identified defendant as one of the men who had been sitting on the couch and had run up the staircase. The other two he saw run upstairs were later identified as the female he saw with the drugs, Melissa M. Velazquez, and another male, Kamuwela V. Enos, co-defendants in the Indictment. During the following direct examination, Lieutenant Pike described what further transpired, as follows:

Q. Okay. When Mr. Carter, Mr. Enos and Ms. Velazquez ran up the step[s], what did you do?

A. I secured the downstairs fearing that there could be other people in the house. At this point we don't know if they're running for a weapon, to destroy drugs. You know, from my personal experience, I believe they're going to destroy drugs since I'd seen the drugs. I secured the downstairs. Two officers, sergeants, went upstairs after him and I cleared the downstairs, make sure no one was in the kitchen areas, no one could come out with a weapon maybe thinking that it was maybe a stickup or something else going on other than police. Since there were drugs in the house visible, usually that goes hand in hand.

* * * *

Q. Did you actually go up the stairs at any point in time?

A. Yeah, at one point I heard a scuffle upstairs that sounded like people fighting, whatnot. At that point the downstairs was clear, I went upstairs. The defendant was already in cuffs sitting along with two other people and there was some drugs floating in the toilet.

Sergeant Dan Morris testified that he had followed defendant, Mr. Enos and Ms. Velazquez up the staircase. As she was running up the stairs, Ms. Velazquez had a bag of drugs in her hand which she had grabbed in the downstairs living room. He stated there was a bathroom at the top of the staircase. Sergeant Morris testified that as he climbed the staircase, Sergeant Arthur was ahead of him and he saw defendant grappling with Sergeant Arthur trying to block them from getting to the top of the staircase, and he heard someone ahead of them flushing the toilet. After they were able to get past defendant, Sergeant Morris described was occurred next, as follows:

Well we grabbed the female, who was primarily the one destroying the - attempting to destroy the contraband. I believe some got through into the sewer system, but I know we got a significant amount, maybe somewhere between 50 and 60 bags after we got out of the toilet.

Officer Voutier testified that once the house was cleared of the suspects and placed inside police vehicle, Sergeant Arthur called him into the building, instructing him to retrieve packages of drugs that were in the toilet of the upstairs bathroom. He stated he was able to retrieve 57 silver-tinted, heat-sealed bags containing a rock-like substance from the toilet. Officer Voutier described the procedure he followed in bagging the packages, and identified the packages he had recovered from the toilet.

Joseph A. Pino, Jr., a forensic scientist with the New Jersey State Police Regional Lab in Hammonton, testified that the material contained in the evidence packages was cocaine.

At conclusion of the State's evidence, defendant moved for a judgment acquittal pursuant to R. 3:18-1, seeking dismissal of the hindering apprehension or prosecution charge in count three and the resisting arrest charge in count four. The trial judge denied the motion. The judge found there was sufficient testimony to support the elements of the hindering apprehension or prosecution charge, but initially expressed some concern about the resisting arrest count, "because there's no evidence that there was an announcement that there was an effort to affect an arrest." However, in denying the motion for judgment of acquittal as to the resisting arrest charge, the judge concluded that although the State's case was thin on that charge, he was satisfied there was sufficient evidence, giving the State all appropriate inferences.

Following the verdict, defendant did not file a motion pursuant to R. 3:20-1 seeking a new trial. On appeal, defendant now argues that the jury verdicts on the hindering apprehension or prosecution charge and on the lesser-included disorderly persons offense of loitering in a public place to obtain or distribute a controlled dangerous substance were against the weight of the evidence.

Pursuant to R. 3:18-1, the court shall order the entry of a judgment of acquittal if the evidence is insufficient to warrant a conviction. In deciding a motion for acquittal made at the close of the State's evidence, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting, State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrell, 145 N.J. 112, 130 (1996).

The trial court may also set aside a jury verdict on a motion for a new trial where the verdict is against the weight of the evidence. R. 3:20-1. The jury verdict should only be set aside where it clearly and convincingly appears there was a miscarriage of justice. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). On review, appellate courts apply essentially the same standard. Dolson, supra, 55 N.J. at 7. Nonetheless, our review is limited and it should give due regard to the jury's assessment of witness credibility based on its opportunity to have heard live witness testimony and to have gained a "feel for the case." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985).

Here, we are satisfied that the trial judge properly denied the motion for a judgment of acquittal at the conclusion of the State's evidence. There was more than ample evidence from which a jury could conclude that defendant was attempting to hinder his apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1), based on the testimony of Sergeant Morris that defendant tried to physically prevent Sergeant Arthur, as well as himself, from getting to the bathroom to prevent the destruction of evidence.

Although defendant was ultimately acquitted of the resisting arrest charge, we conclude the trial judge properly denied the motion for judgment of acquittal of that charge, as well. Defendant had essentially contended that because no police officer had uttered the words, "you're under arrest," there in fact could be no resisting of arrest. We disagree. Although the charge of resisting arrest clearly requires a culpability of purpose, denial of the motion for judgment of acquittal is appropriate where the trial judge concludes the jury could reasonably determine that the defendant knew the police were attempting to effectuate an arrest, and he resisted. The failure to actually announce to defendant that he was under arrest is only one factor to be considered in the overall sequence of events leading to arrest. State v. Branch, 311 N.J. Super. 307, 321 (App. Div. 1997), reversed on other grounds, 155 N.J. 317 (1998).

As noted, defendant did not file a motion seeking a new trial. Rule 2:10-1 provides that:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice.

In the absence of plain error, we will generally not entertain the argument that the jury verdict was against the weight of the evidence unless the defendant had moved for a new trial following the verdict. See State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). We discern no plain error here.

There was ample evidence from which a jury could have concluded that defendant was at the top of the stairs and had attempted to prevent both police sergeants from gaining access to the bathroom to prevent the destruction of evidence and, thereby, prevent or hinder his prosecution.

We also find no plain error in the trial judge's decision to charge the jury regarding the lesser-included disorderly persons offense of wandering in a public place for the purpose of obtaining or selling a controlled dangerous substance. Notably, not only did defendant not object to that portion of the charge, but he specifically requested it, as noted by the trial judge during the charge conference:

Basically I am going to give the standard charge with reference to possession of CDS. After the possession of CDS, defense counsel has requested that I give the disorderly persons offense for what's referred to as loitering for purposes of obtaining CDS. I reviewed it. I think there - to some extent argument can be made that it wouldn't be appropriate because it talks about a public place. In light of the fact there was testimony that this was a boarding house especially in light of what Sergeant Morris said about other people coming. I think if you look at the definitions that are contained in that statute, it would be appropriate.

A defendant is entitled to a lesser-include offense charge in order to give full force to the reasonable doubt standard as long as there is a rational basis in the evidence to acquit the defendant of the greater offense as well as convict the defendant of the lesser offense. State v. Reddish, 181 N.J. 553, 626 (2004). Considering the fact that this charge was specifically requested by defendant, the testimony adduced from Sergeant Morris that the subject premises was a boarding house and "there were people kind of wandering around[,]" gave the residence enough characteristics of a public place to provide a rational basis warranting the requested charge. Moreover, a defendant cannot request the trial court to take a certain course of action, take his chance on the outcome of the trial and "then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Ramseur, 106 N.J. 123, 282 (1987). By his acquittal of the drug possession charges in these circumstances, where unconcealed drugs were found on the premises in the presence of defendant and he participated in actions designed to assist in their destruction, the defendant clearly obtained a substantial benefit from submission to the jury of the disorderly persons offense. Thus, in our view it would pervert the constitutional protections afforded an accused to permit defendant now to secure a reversal of that disorderly persons offense conviction after he has reaped the benefit of it submission to the jury at trial. See State v. Ciuffreda, 127 N.J. 73, 82 1992; State v. Buonadonna, 122 N.J. 22. 35-40 (1991); State v. Ciniglio, 57 N.J. Super. 399, 403-07 (App. Div. 1959), certif. denied, 31 N.J. 295 (1960).

Lastly, defendant argues that the eighteen-month sentence imposed on his conviction on count three for hindering apprehension or prosecution was excessive because it represents the maximum penalty for a fourth-degree crime, and that the six-month term imposed on the disorderly persons conviction on count one was excessive because the evidence was insufficient to warrant his conviction.

In determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 368 (1984). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Jabbour, 118 N.J. 1, 6 (1990). In sentencing defendant, the judge stated in pertinent part:

In review of the pre-sentence report in this matter I have determined that aggravating factor number three, the risk the defendant will commit another crime; number six, the extent of the defendant's prior criminal record and the seriousness of the offenses for which he's been convicted; and number nine, the need for deterrence, are applicable. This would be the defendant's fifth adult conviction. He has experienced probation, state prison, ISP and parole. As a result of analyzing the aggravating and mitigating factors, and I find there are no mitigating factors, clearly the aggravating factors weigh much greater than mitigating factors, since none apply.

Here, the trial judge followed the proper statutory sentencing guidelines; there was substantial evidence in the record to support the factual findings upon which the judge based his application of those guidelines; and the judge did not reach a decision that could not have been reasonably made by weighing the relevant factors. State v. Roth, 95 N.J. 334, 365-66 (1984). Clearly, the sentencing judge found that the aggravating factors preponderated over the absence of mitigating factors, and considering defendant's extensive prior record and weight of the aggravating factors, the imposition of a sentence at the upper-end of the sentencing range was fully appropriate, and does not shock our judicial conscience. See State v. Natale, 184 N.J. 458, 488 (2005)(noting that the touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court and trial judges must identify the aggravating and mitigating factors and balance them to arrive at a fair sentence).

 
Affirmed.

Sergeant Morris described the "grappling" as "tussling," "a little pushing and shoving."

(continued)

(continued)

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A-5006-07T4

October 23, 2009