STATE OF NEW JERSEY v. ADEWALE B. IDOWU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6442-06T46442-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADEWALE B. IDOWU,

a/k/a VINCENT O. JIMOH,

Defendant-Appellant.

_______________________________________

 

Submitted May 27, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0458.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Brent A. Bramnick, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Adewale B. Idowu was found guilty of eluding, contrary to N.J.S.A. 2C:29-2b, and certain other offenses. Defendant appeals from his conviction and the sentences imposed. For the reasons that follow, we affirm.

I.

Defendant was charged under Union County Indictment No. 06-05-0458 with eluding, N.J.S.A. 2C:29-2b (count one); aggravated assault, N.J.S.A. 2C:12-1b(6) (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and aggravated assault, N.J.S.A. 2C:12-1b(1) (counts four, five and six). Defendant was tried before a jury. He represented himself with the assistance of stand-by counsel.

At the trial, the State presented testimony from Officer Jason M. Rodger (Rodger), who was employed by the Westfield Police Department (WPD). Rodger stated that, at approximately 1:00 p.m. on January 27, 2006, he was on duty in a marked police vehicle. Rodger was at the intersection of South Avenue and Crossway Place, eating his lunch and watching the flow of traffic. Rodger noticed a brown Mercedes-Benz stop abruptly and nearly collide with two other vehicles that were stopped at a red light. Rodger said that as the Mercedes stopped, it "kind of went sideways a little bit."

Rodger ran a "plate inquiry" for the Mercedes on his mobile, "in-car computer." The inquiry revealed that the vehicle's registration had expired. Rodger put his lunch aside and pulled out into the roadway behind the Mercedes, with the intention of making a motor vehicle stop. Rodger said that, as he was doing so, the Mercedes "took off." It passed two other vehicles at the red light, went down South Avenue and made "a hard turn onto Crossway Place." Rodger pursued the vehicle.

The Mercedes gained speed and went through a stop sign on Crossway Place and North Avenue. Rodger activated the lights on his vehicle and radioed to advise headquarters that he was in pursuit of a car. He said that the Mercedes was a "good distance" ahead of his vehicle. Rodger accelerated his vehicle. The Mercedes stopped at a red light on North Avenue in Scotch Plains. According to Rodger, the Mercedes made an abrupt turn onto Crestwood Avenue and, in doing so, passed a red light.

Rodger continued in pursuit of the Mercedes and communicated with headquarters. He testified that he was traveling about fifty miles an hour at a point where the posted speed limit was twenty-five-miles per hour. The Mercedes approached an intersection at Crestwood and Morris Avenues. Rodger said the car continued on without stopping at the stop sign and nearly collided with two trucks that were coming down Morris Avenue. Rodgers was three car lengths behind the Mercedes.

The Mercedes continued along Ascot Road in Scotch Plains, turned left onto Edgewood Road, and turned left again onto Woodland. Rodger said that the Mercedes came to an intersection at Westfield Road, passed a stop sign and nearly collided with a white minivan. The Mercedes was rapidly accelerating. Rodger estimated that it was "easily going" in excess of eighty miles per hour at the time. Rodger said that the vehicle began to straddle the road's double yellow lines, passed a grammar school, picked up speed and forced cars to veer off the road to get out of the way.

After passing the school, Rodger tried to close the gap between his vehicle and the Mercedes. The Mercedes came to an intersection, passed a red light and continued on at a high rate of speed. The Mercedes turned onto Route 22 and was almost struck by a large tractor-trailer. Rodger continued in pursuit. He advised the Mountainside Police Department that he was entering its jurisdiction. The Mercedes ran a red light at Glenside Avenue in Scotch Plains and nearly collided with several cars.

Rodger began to back off from the chase out of concern that the driver of the Mercedes was "just too dangerous[.]" He slowed down and pulled off to the shoulder. He observed the suspect drive on the shoulder of the road at a high rate of speed. The Mountainside police took up the pursuit. Rodger observed the Mountainside police chasing the vehicle through a parking lot. Rodger saw the Mercedes strike a gold-colored sports utility vehicle (SUV) that was waiting to exit the parking lot onto New Providence Road. Rodger said that the suspect stopped his vehicle. A Mountainside police officer got out of his car and ran up to the Mercedes.

According to Rodger, the gold SUV pulled away and the suspect accelerated and turned his vehicle toward Rodger's car. Rodger pulled his car off to the side of the road. Rodger was instructed to pursue the vehicle. According to Rodger, the Mercedes took off. He said that the suspect "was flying." The vehicles continued south on New Providence Road. The Mercedes crossed over into the northbound lane of travel and almost struck a van heading north. The vehicle continued down New Providence Road at a high rate of speed, crossed over the double yellow lines and collided with another car. Rodger lost sight of the vehicle. Rodger and the Mountainside police officers began to look for the car on the surrounding side streets.

Rodger received a report as to the location of the vehicle. He started heading towards North Avenue. Another officer had come in contact with the vehicle at North Avenue and Tuttle Parkway. Rodger said that the Mercedes took off at a high rate of speed down North Avenue, passed a restaurant and then turned right into a bank parking lot at the corner of North Avenue and Hetfield Avenue.

Police units from Scotch Plains and other jurisdictions pursued the vehicle. Rodger testified that the suspect drove his vehicle in the direction of Captain David Wayman (Wayman) of the WPD and tried to strike the door panel of Wayman's vehicle. Wayman took evasive maneuvers to avoid being hit. The Mercedes exited the bank parking lot, drove over the grass, passed over the sidewalk and entered the roadway. The officers continued in pursuit. Rodger took over and continued as the primary unit in the chase.

They continued down North Avenue. Rodger testified that another police vehicle was heading in their direction on North Avenue. Rodger stated that the suspect vehicle veered off the road, crossed the double yellow lines in the roadway and went "head-on" toward Officer Robert Weiss (Weiss) of the WPD in an attempt to strike him. Weiss drove off to the side of the road to avoid being hit.

The Mercedes continued down North Avenue to Crossway Place. The suspect made an "abrupt turn" onto Crossway, lost control of his vehicle, collided with two other vehicles, and stopped. The suspect was taken into custody. Rodger identified defendant as the suspect. Rodger said that, although he lost sight of the vehicle at one point during the chase, he knew it was the same car because the vehicle had the same license plate and description.

Officer Robert Beaton (Beaton) of the WPD testified that he attempted to stop the Mercedes. He followed the vehicle as it entered the bank parking lot. Beaton observed the suspect drive the vehicle directly at Captain Wayman. Beaton also observed the vehicle drive over the double yellow line directly at Officer Weiss. Beaton testified that he saw the vehicle sideswipe another car and strike a vehicle "head to head." After the Mercedes crashed, Beaton exited his car. Beaton and several other officers approached the Mercedes. He identified defendant as the person who was driving that vehicle.

Officer Weiss also testified. He said that on the date of the incident, he was on patrol duty in the northwest section of Westfield. He was informed that Rodger was in pursuit of a vehicle and they were coming back into Westfield on North Avenue. Weiss observed the Mercedes approach at a high rate of speed and cross over the double yellow line into the oncoming lane in which he was traveling, forcing him off the road.

Weiss testified that the driver attempted to "ram" him on the road. He said that he caught a quick glimpse of the driver. It was a black male. Weiss said that he turned around and, at about that time, headquarters advised that a motor vehicle accident had occurred. Weiss headed to the scene, where the defendant had been taken into custody.

Captain Wayman testified as well. He said that on January 27, 2006, at approximately 1:00 or 1:30 p.m., he was on duty in his unmarked patrol vehicle on the south side of Westfield. He heard Rodger's radio transmission and responded to the north side of town where the chase was taking place. He joined the pursuit at North and Dudley Avenues.

Wayman said that his was the third vehicle involved in the chase. He stated that the suspect vehicle pulled into the bank parking lot and the three police vehicles followed. According to Wayman, the suspect vehicle made a u-turn and headed directly towards his vehicle. He said that the suspect's vehicle "was coming right towards [the] driver's side door." Wayman had to accelerate and veer out of the way.

Wayman also stated that the suspect vehicle passed "no more than two feet away from the side" of his car. Wayman said he believed the vehicle was a "dark-colored" Mercedes-Benz. Wayman testified that he "looked right at the driver" and the driver "looked right at" him. Wayman identified defendant as the driver of the vehicle.

Kathleen Walsh (Walsh) testified that, on the day of the incident, she was driving a Honda Civic. Walsh said that she observed several police cars in pursuit of a Mercedes on North Avenue in Westfield. According to Walsh, the Mercedes sideswiped another car and "slammed" into her vehicle. Walsh testified that, as a result of the collision, she had a sore neck and back for several days after the incident.

Defendant testified on his own behalf. He acknowledged that he was arrested on January 27, 2006. Defendant stated that he was driving a grey-colored Mercedes-Benz. Defendant denied that he was speeding. Defendant also denied that he was involved in an accident prior to his arrest.

Defendant was found guilty on counts one (eluding), two (aggravated assault), and three (possession of a weapon for an unlawful purpose). On counts four and five, defendant was found guilty of the lesser-included disorderly persons offenses of simple assault. On count six, defendant was found guilty of third-degree aggravated assault, rather than second-degree aggravated assault as charged in the indictment.

Defendant was sentenced on May 4, 2007. The court found an aggravating factor under N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court also found a mitigating factor under N.J.S.A. 2C:44-1b(7) (defendant has no prior criminal record).

On count one, the court sentenced defendant to seven years of incarceration. The court merged count three with count two and sentenced defendant to a concurrent term of five years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Concurrent six-month sentences were imposed on counts four and five, and a concurrent four-year term was imposed on count six.

The court also ordered defendant to pay $500 in restitution, imposed a $350 Violent Crimes Compensation Board penalty, a $450 Safe Neighborhood Services Fund assessment, and a $30 Law Enforcement Officers Training and Equipment Fund penalty. In addition, defendant's driving privileges were suspended for six months.

This appeal followed. Defendant raises the following arguments for our consideration:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED THE DEFENDANT'S RIGHTS UNDER THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT BY PRECLUDING THE DEFENDANT FROM TESTIFYING THAT HE HAD NEVER BEEN ARRESTED FOR, OR CONVICTED OF, A CRIMINAL OFFENSE (NOT RAISED BELOW).

POINT II

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON THE MENTAL STATES OF "RECKLESSLY" AND "NEGLIGENTLY" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT III

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).

POINT IV

THE AGGREGATE [SEVEN] YEAR BASE CUSTODIAL SENTENCE IMPOSED REPRESENTS AN ABUSE OF JUDICIAL DISCRETION.

II.

We turn first to defendant's argument that the trial court erred by precluding him from testifying that, prior to the incident of January 27, 2006, he had never been arrested or convicted of any criminal offense. Defendant maintains that as a result of the trial court's ruling, he was deprived of his right to present a defense, as guaranteed by the Sixth Amendment to the United States Constitution. Because defendant did not raise this issue in the trial court, we must determine whether the court erred by excluding the evidence and, if so, whether the error was "clearly capable of producing an unjust result[.]" R. 2:10-2.

Under N.J.R.E. 402, all relevant evidence is admissible, except as otherwise provided in the evidence rules or law. N.J.R.E. 404(a) states, however, that "[e]vidence of a person's character or character trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith[.]" Therefore, evidence that defendant had not been arrested or convicted of an offense prior to the incident of January 27, 2006, was not admissible to show that he acted in conformity with his prior record.

Defendant nevertheless argues that the excluded evidence should have been admitted because it was relevant to the issue of his credibility. We disagree. N.J.R.E. 608 provides that:

(a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609[] and by paragraph (b) of this rule, a trait of character cannot be proved by specific instances of conduct.

(b) The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

Here, the exceptions in N.J.R.E. 609 and N.J.R.E. 608(b) do not apply. Consequently, the N.J.R.E. 608(a) would only permit the introduction of evidence in the form of an opinion or reputation.

Defendant did not present any character witnesses and could not offer an opinion as to his own good character and reputation. Moreover, defendant could not present evidence of specific instances of conduct to establish his good character or reputation. We are therefore convinced that the trial court did not err by precluding defendant from testifying that, prior to the events of January 27, 2006, he had not been arrested or convicted of a crime.

Defendant additionally contends that the trial court's ruling excluding the evidence violated his rights to confrontation and compulsory process as guaranteed by the Sixth Amendment to the United States Constitution. Again, we disagree.

The rights to confrontation and compulsory process are intended to accommodate "'legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). These rights may not be overridden by "the mechanistic application of a state's rules of evidence or procedure [that] would undermine the truth-finding function by excluding relevant evidence necessary to a defendant's ability to defend against the charged offenses." Ibid.

As we have explained, evidence that, prior to the events of January 27, 2006, defendant had not been arrested or convicted of a crime was not admissible. In our judgment, the trial court's exclusion of that evidence did not "undermine the truth-finding function" of the trial, nor did the court's ruling substantially limit defendant's ability to defend himself against the offenses for which he was charged. We therefore conclude that the trial court's ruling did not violate defendant's constitutional rights to present a defense and confront the witnesses against him.

III.

Defendant next argues that the trial court erred by failing to instruct the jury sua sponte on the mental states of "recklessly" and "negligently." Because defendant did not object to the court's instructions during the trial, we consider this contention under the plain error standard. We must determine whether the court erred and, if so, whether the error was "clearly capable of producing an unjust result[.]" R. 2:10-2.

Defendant recognizes that he was charged with offenses that required proof of a knowing or purposeful mental state. Defendant asserts, however, that the court also should have instructed the jury on the mental states of recklessness and negligence for purposes of comparison. Defendant contends that the instructions were required because in this case, the jury needed to understand where "knowingly" and "purposefully" ended and where "recklessly" and "negligently" began.

In support of his argument, defendant relies upon State v. Concepcion, 111 N.J. 373 (1988). In that case, the defendant was charged with reckless manslaughter. Id. at 374. The trial court instructed the jury on the meaning of the term "recklessly," as defined in N.J.S.A. 2C:2-2b(3). Id. at 377. During its deliberations, the jury asked the court to clarify the definition of recklessness. Id. at 378. The court again provided the jury with the statutory definition. Ibid.

The Supreme Court reversed the defendant's conviction because, in molding the instructions to the facts of the case, the court had selectively referred "to one aspect only of the critical events." Id. at 380-81. The Court said that the court's instructions "may have misled the jury and influenced it to return a guilty verdict based solely on that conduct." Id. at 381.

The Court added that the jury's request for reinstruction suggested that it did not understand the concept of recklessness. Ibid. The Court stated that, rather than re-reading the statutory definition of "recklessly," the trial court might have compared the concept of "recklessness" with other mental states, such as "purposely" and "negligently." Ibid.

In our judgment, defendant's reliance upon Concepcion is misplaced. Here, the jury did not seek reinstruction on the mental states pertaining to the charged offenses. Thus, an instruction on other mental states was not required to dispel confusion or enhance the jury's understanding of the mental states required to find defendant guilty.

IV.

We next consider defendant's argument that certain remarks made by the prosecutor in summation deprived him of his right to a fair trial. Defendant did not object to the remarks at trial.

It is well-established that a prosecutor is "permitted considerable leeway to make forceful, vigorous arguments" to a jury. State v. Nelson, 173 N.J. 417, 472 (2002) (citing State v. Chew, 150 N.J. 30, 84 (1997)). If a defendant or his attorney fails to object to the prosecutor's allegedly objectionable remarks at the time they were made, "the remarks usually will not be deemed prejudicial." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42 (1953)). Even if the prosecutor's remarks are considered to be improper, a conviction will not be reversed on this basis unless the remarks were "'so egregious as to work a deprivation of a defendant's right to a fair trial.'" Nelson, supra, 173 N.J. at 472 (citing State v. Pennington, 119 N.J. 547, 566 (1990)).

Here, defendant argues that the following remarks were improper:

His weapon was his vehicle. That's where we get the possession of a weapon for an unlawful purpose.

You can take any type of [inanimate] object, and use it [innocently] to a certain degree, but in certain circumstances[,] that innocent object can become something deadly.

And I submit to you, ladies and gentlemen, I have this pen. What do we use it for?

You [have] seen me writing. . . . Seen everything written. That's [what] we use a pen for.

If I get into an argument with you, I take this pen, and I jab into your neck this pen, [this pen is not] an instrument for writing, it's a deadly weapon.

And I submit to you, ladies and gentlemen, that is exactly what happened on January 27th with that vehicle. You have a two ton vehicle traveling [at seventy, eighty, ninety] miles per hour, going . . . onto police vehicles.

Suddenly, what we would use as a [mode] of transportation to take us [from point] (a) to point (b). Suddenly becomes a weapon. And [that is] where we get that count, possession of a weapon for [an] unlawful purpose. He used that vehicle. His purpose was to ram the police officer. And he attempted to cause him bodily injury.

Actually, nobody was injured, but [that does not alter] the fact that there was an attempt. He attempted to [inflict] bodily injury. The vehicle [was] traveling [seventy] to [eighty] miles per hour, slams into your car, what type of an injury do you think you would sustain?

Would you be killed? You [might] be seriously injured, head-on. And that, I submit to you, ladies and gentlemen, is exactly what happened in this case.

Defendant maintains that the prosecutor's comments did not accurately reflect the evidence presented at trial. He contends that the hypothetical scenario presented by the prosecutor concerning the use of a pen as a weapon had no resemblance to the charged offenses. Defendant also maintains that there was no evidence that defendant was traveling at speeds of between seventy and ninety miles per hour when he drove his car towards a police vehicle.

We are convinced that these contentions are entirely without merit. The prosecutor's comparison between the pen and the automobile was not improper. The remarks were "reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988)). The prosecutor's analogy properly illustrated the State's contention that an object that is ordinarily used for lawful purposes may, under certain circumstances, be used for an unlawful purpose.

In addition, the evidence reasonably supported the prosecutor's comment regarding the speed at which defendant was traveling when he drove his car toward one of the officers. Weiss had testified that defendant was traveling at a high rate of speed when he crossed the double yellow lines and drove his car toward Weiss' vehicle. Although Weiss did not estimate the exact speed at which defendant was traveling at the time, the prosecutor's assertion was a reasonable inference based upon the evidence presented in the case.

V.

Defendant also argues that the sentence imposed for eluding is excessive. Defendant contends that the trial court erred by failing to articulate on the record its reasons for imposing a sentence longer than the five-year minimum base term for eluding, a second-degree offense. Defendant also contends that the court erred by failing to consider the "real time" consequences of the mandatory NERA period of parole ineligibility imposed as a result of his conviction on count two.

We disagree with these contentions. Here, the trial court provided sufficient reasons to justify the sentence imposed. The court noted that defendant's behavior behind the wheel of his car was "terribly irresponsible." The court also noted that, although defendant did not have a criminal record, he had twenty active bench warrants, which included criminal warrants issued by Bridgewater, Newark and Mountainside, and traffic warrants issued by Newark, South Plainfield, Piscataway, Union, Bridgewater, Somerville, Woodbridge and Kenilworth.

We are convinced that the sentence imposed is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

We note, however, that the judgment of conviction erroneously states that the court did not find any mitigating factors. The sentencing transcript indicates otherwise. We therefore remand the matter to the trial court to correct that error.

Affirmed and remanded to the trial court for entry of a corrected judgment of conviction.

 

N.J.R.E. 609 provides that, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The rule pertains to evidence of a conviction of a crime, not evidence that the witness has not been convicted of a crime.

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A-6442-06T4

June 30, 2009