STATE OF NEW JERSEY v. TYREESE L. BATTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3404-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYREESE L. BATTS, a/k/a

TYREESE BEST, DAWIAM BEST,

DAWUAN BEST, DAWUAN BATES, DAWUAN

SAWSON AND DAWUAN SESSOMS,

Defendant-Appellant.

_____________________________________________________

November 16, 2010

Submitted September 21, 2010 - Decided

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-01-0051.

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

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tyreese L. Batts, a/k/a as Tyreese Best, appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of third-degree receiving stolen property, N.J.S.A. 2C:20-7a; 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). Defendant was sentenced to a four-year term of imprisonment on the theft conviction, a concurrent extended term of fifteen years with a seven-year period of parole ineligibility on the eluding conviction, and a concurrent eighteen-month sentence of imprisonment on the resisting arrest conviction. On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN NOT LIMITING THE USE OF "FLIGHT" TO THE JURY AS FLIGHT DID NOT APPLY TO THE CRIME OF RESISTING ARREST. IN ADDITION, THE JUDGE DID NOT CLEARLY EXPLAIN TO THE JURY THE DIFFERENT TYPES OF FLIGHT CHARGED AS APPLIED TO THE CRIME OF ELUDING.

POINT II

THE TRIAL JUDGE ERRED IN FAILING TO ASCERTAIN WHETHER THE JURY TRULY DID NOT WANT A READBACK OF THE CROSS-EXAMINATION OF OFFICER DiORIO.

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for re-sentencing.

We briefly summarize the testimony at trial. On August 15, 2007, Officer James DiOrio of the Elizabeth Police Department responded to a report of a stolen vehicle at the Jersey Gardens Mall. At the scene, the victim told DiOrio that when he exited the mall his beige Honda Accord was missing.

The following day, DiOrio was on patrol driving an unmarked police vehicle when he observed a beige Honda Accord driving toward him in the opposite direction. DiOrio observed that the driver was wearing a white sleeveless tank top or tee shirt and a navy blue New York Yankees baseball cap with a gold sticker on the brim. DiOrio entered the license plate number of the Accord into his mobile computer and was advised the vehicle had been reported stolen. He made a U-turn to pursue the vehicle.

The Accord entered the oncoming lane of traffic in order to pass the vehicles in front of it and then ran a stop sign. DiOrio immediately activated his lights and siren. The Accord continued to accelerate, made a screeching left turn without braking, and reached speeds of seventy to eighty miles per hour. DiOrio called for back-up assistance.

Eventually the Accord abruptly stopped in front of a set of townhouses on Bond Street. The driver and his passenger exited the car and ran toward the rear yards of the townhouse complex. DiOrio gave chase and ordered the men to stop. Ultimately, another police officer apprehended defendant, who DiOrio identified as the driver of the Accord. Defendant was wearing a white athletic tee shirt and a Yankees cap with a gold sticker.

Defendant's first point challenges the jury instructions. During the charge conference, defense counsel objected to the judge providing a "separate charge" as to "flight" because "flight [wa]s part of . . . resisting arrest." She further explained, "the separate flight charge . . . obviously introduce[s] the consciousness of guilt . . . but obviously that is part and parcel of the entire resisting arrest charge by flight." The judge overruled the objection, concluding that it "would be appropriate" to charge the model charge on flight.

Before providing specific instructions on the three substantive crimes, the judge told the jurors, "There's one other factor that you should consider with regard to all of the charges." He then provided the jurors with the model jury charge on flight. After charging the jury on the elements of the crime of receiving stolen property, the judge provided instructions on the eluding charge, noting that one of the elements the State must prove beyond a reasonable doubt was that defendant "knowingly fled, or attempted to elude the officer" after knowing that DiOrio had signaled him to stop his vehicle. After charging the basic elements of resisting arrest, the judge told the jury,

If you find the State has proven the basic offense of resisting arrest beyond a reasonable doubt you must continue deliberations to determine whether the State has proven beyond a reasonable doubt that the defendant committed the more serious offense of resisting the arrest by flight. The defendant denies that the acts constituted flight. Mere departure from a place where a crime has been committed does not constitute flight. The State must prove beyond a reasonable doubt that the defendant, fearing that he would be arrested, fled for the purpose of evading the arrest. . . . If you find that the State has proven beyond a reasonable doubt all five of the elements you must find the defendant guilty of resisting arrest by flight. If the State has failed to prove the fifth element beyond a reasonable doubt, then you must find the defendant guilty only of the basic offense of resisting arrest.

Defendant does not argue that the judge's charge was erroneous. Indeed, all the instructions tracked the model criminal jury charges verbatim. Instead, defendant contends that since the resisting arrest charge "ha[d] flight as an element," providing the general flight charge was a "problem." He also contends, for the first time on appeal, what we discern to be an argument that the judge should have provided a limiting instruction as part of his charge. As stated in defendant's brief,

There were simply too many mentions of flight in this charge, without proper limitation, for the jury to understand the concepts and apply them fairly to . . . defendant. There was the flight built in to the eluding charge, there was the flight that was an element of the resisting arrest charge and there was the general concept of flight to show consciousness of guilt.

While we agree that it would have been appropriate for the judge to have specifically limited consideration of the general flight charge to only the count of receiving stolen property, we cannot conclude that the charge as given was plain error.

"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). However,

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.

[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).]

"[E]vidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension." State v. Ingram, 196 N.J. 23, 46 (2008). "[D]eparture to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47. Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).

Clearly, in this case, there was sufficient evidence for the jury to infer that defendant fled DiOrio to avoid apprehension for receipt of the stolen Accord. The car theft occurred on the prior day in the same municipality and defendant was later seen driving the car. His decision not to stop when signaled to do so could reasonably imply his consciousness of guilt. There was no error in providing the jury with the model jury charge on flight.

The fact that defendant was also charged with resisting arrest by flight does not negate the propriety of the general flight charge. As the judge noted in colloquy with defense counsel, the model jury charge on resisting arrest by flight does not make any reference to "consciousness of guilt." See Model Jury Charge (Criminal), "RESISTING ARREST - FLIGHT ALLEGED," (Revised May 7, 2007). The judge accurately recited the charge. Thus, we find no merit as to the argument expressly made by defense counsel at trial and reiterated in defendant's brief.

The more problematic issue is whether the judge should have limited consideration of the permissible inference of "consciousness of guilt" to the receiving stolen property charge, and advised the jury that the inference did not apply to the other two charges. Because this argument was not raised at trial, we consider whether it was plain error for the judge to instruct the jury that it could "consider with regard to all of the charges" defendant's flight as demonstrating consciousness of guilt. R. 2:10-2.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997) (emphasis added)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.

Here, we find no error that was "clearly capable of producing an unjust result." R. 2:10-2. The judge provided accurate instructions regarding the eluding and resisting arrest charges. In each instance, instructions regarding the permissible inference available from the general flight charge -- defendant's "consciousness of guilt" -- were not repeated. Additionally, as we explain below, after commencing deliberations, the jury quickly asked to be recharged on the elements of all three offenses. In these instructions, the general flight charge was not repeated. Finally, the evidence of defendant's guilt as to all three charges was overwhelming. We find no reason to reverse defendant's conviction based upon the jury instructions.

We recite what occurred at trial as it relates to defendant's second point on appeal. After the charge was completed, the jury was released for the day without deliberating. Within minutes of the start of deliberations the next day, the jury requested that the judge provide a written statement of the elements of each charge. The judge responded verbally by providing only the elements of all three substantive offenses. It is unclear from the record whether the jury sent out a subsequent note, or whether the judge then addressed a "second part" of the original note that apparently requested a copy of DiOrio's police report. After explaining the report was not in evidence, the judge advised the jury, without objection, that he would replay the testimony of the officer. The direct examination of DiOrio was played for the jury, followed by a short break in the proceedings to permit the audio tape to be changed. This resulted in the jury's return to the jury room.

At this point, the jury sent out another note advising the judge that it did "not need to hear the cross-examination testimony of . . . DiOrio," and "want[ed] to continue deliberations." Defense counsel objected, but the judge indicated he was "not going to make [the jurors] listen if they don't want to listen to it."

Defendant argues that while the jurors clearly indicated they did not "need" further playback, the judge should have nevertheless inquired whether all or some of them may have "wanted" the testimony read back. We find the argument unavailing.

"The reading of all or part of the testimony of one or more of the witnesses at a trial . . . at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wilson, 165 N.J. 657, 660 (2000) (citing State v. Wolf, 44 N.J.176, 185 (1965)). "[T]hat broad grant of discretion is not unbridled." Wilson, supra, 165 N.J. at 660.

Generally, "if a jury requests a readback of the testimony of a witness, the readback should include both direct and cross-examination" because cross-examination provides a "full view of the witness' testimony, including inconsistencies and impeaching material." Ibid. However,

That is not to suggest that a witness's entire testimony is required to be read back in every single case. We assume that when jurors request a readback, what is being sought is only . . . those portions of the testimony about which they are in doubt or disagreement. Accordingly, where a request is clearly circumscribed, the trial court has no obligation to compel jurors to hear testimony they have not asked for or to continue a readback after they have expressly indicated that they have heard enough. That is so even if one of the parties registers a request for a further readback.

[Id. at 661 (quotations and citations omitted).]

Indeed, the facts in this case are strikingly similar to those in Wilson.

There, the jury also did not limit its request for a readback of only direct examination. Wilson, supra, 156 N.J. at 661. After the direct testimony, "the tape was stopped briefly and the foreperson of the jury said something to the effect of 'okay, fine,' and the jurors got up to leave. The trial court and the lawyers took that as a signal that the jurors had heard enough." Ibid. While the Wilson Court suggested that the trial judge should have asked the jury directly whether it wished to hear cross examination, it affirmed defendant's conviction because "the import of the jurors' words and actions" was clear to all participants. Id. at 662.

In this case, the jury sent out a second note clearly advising the judge that it did not need to hear any further play-back of DiOrio's testimony, and that it wished to resume deliberations. In our mind, that was an unequivocal statement that the jury had "heard enough." Wilson, supra, 156 N.J. at 661. There was no error.

Lastly, defendant contends his sentence was excessive. Specifically, he argues that the judge improperly imposed a discretionary extended term utilizing the four-part framework announced in State v. Dunbar, 108 N.J. 80 (1988), rather than the procedure now mandated by State v. Pierce, 188 N.J. 155 (2006). The State concedes that the court confused the Pierce and Dunbar procedures, but nevertheless argues that the extended term was appropriate and comports with the Pierce standards.

Under Dunbar,

First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence.

[Fourth], it must determine whether to impose a period of parole ineligibility.

[Pierce, supra, 188 N.J. at 164 (quoting Dunbar, supra, 108 N.J. at 89).]

Under Dunbar's framework, a judicial determination of the need for "protection of the public" was a "necessary precondition[] to defendant's eligibility for extended-term sentencing." Pierce, supra, 188 N.J. at 167. The Pierce Court, however, modified the procedure to be employed as follows:

The sentencing court must first . . . determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.

[Pierce, supra, 188 N.J. at 168.]

In this case, the judge utilized the Dunbar sentencing paradigm, specifically noting that "[t]he standard to determine whether to impose an extended term upon [an] eligible defendant is whether it's necessary for the protection of the public from future offenses by the defendant." In reviewing any sentence, we must consider whether the judge applied "'correct legal principles in exercising [his] discretion.'" State v. Blackmon, 202 N.J. 283, 297 (2010) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). Here, the judge utilized an inappropriate framework to impose sentence upon defendant.

We therefore remand the matter for re-sentencing. We express no particular opinion about the propriety of the actual sentence imposed in this case. To the extent defendant has raised other arguments in his brief regarding the sentence, he is free to advance those arguments at the remand hearing.

Affirmed and remanded solely for the purpose of re-sentencing. We do not retain jurisdiction.