STATE OF NEW JERSEY v. TORMU T. PRALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3615-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TORMU T. PRALL,

Defendant-Appellant.

________________________________________________________________

Submitted June 1, 2011 Decided July 6, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-03-00397.

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

Paula T. Dow, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Defendant appeals from his sentence and convictions for second-degree eluding, N.J.S.A. 2C:29-2(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). We affirm.

On October 18, 2006, Detective Brian Jones and Officer Eliezer Ramos of the Trenton Police Department responded to a call regarding criminal mischief, a broken window at the residence of Merl Bell, her boyfriend, Isaac Gleaton, and her daughter, Alexis Bell on Martin Luther King Boulevard. Gleaton was standing on the sidewalk and pointed down Southard Street at a white U-Haul van, screaming, that s him, get him. As the officers proceeded down the street, the van made a U-turn and drove quickly toward the patrol car, stopping directly in front of it. Jones left the patrol car, approached the van on foot, and yelled at the driver to stop the van and exit the vehicle. When Jones was within ten feet of the van, the driver accelerated backward to the nearest intersection and turned the corner, disappearing from view. Ramos pursued the van with overhead lights flashing and siren activated.

Less than a minute later, as Jones was walking back toward Gleaton, the van reappeared. The driver slowed as if to stop, but then quickly accelerated in Jones s direction, crossing into the opposing lane of traffic. Jones drew his weapon and ran to the sidewalk to avoid being struck by the van. The van came so close that Jones felt the vehicle s draft as it passed by. Alexis and her sister, Rodesha Bell, later identified defendant as the driver of the van and provided a photograph of him to Jones.

Ramos was driving directly behind the van when the driver returned to Southard Street and veered toward Jones. He pursued the van, driving approximately fifty miles per hour through twenty-five mile per hour zones, overhead lights on and siren blaring, through Ewing Township and back into Trenton, where he lost sight of the van. Other cars and pedestrians had to move out of the way and on to the grass to get out of danger.

Another Trenton police officer, Alphonse Ferdetta, Jr., responded and also pursued the U-Haul van with overhead lights and sirens activated. The driver of the van picked up speed and blew through a red light, almost causing an accident. Ferdetta broke off the chase because of the driver s aggressive driving, the diminishing light at dusk, and heavy traffic in the area.

At trial, Alexis Bell testified that, on October 18, 2006, she had been dating defendant for a little over a year. Earlier that day, they went to a store in Pennsylvania to buy parts to make a silencer for a gun. Defendant was driving a U-Haul van his mother had rented for him. The two got into an argument and Alexis jumped out of the van.

Around dinner time that day, defendant showed up in Alexis s backyard and threw a brick through a window. Rodesha Bell was in a second-floor bedroom and saw defendant running out of the backyard. Merl called the police, who arrived while defendant was circling the block in the van. Rodesha testified that defendant threatened "to get you all" as he drove around. Alexis confirmed that the officers tried to block defendant, that he drove in reverse and charged at the officers, as if he was trying to hit them, and that one of the officers dove out of the way to avoid being hit. Rodesha and Gleaton also saw defendant drive toward the officer who jumped out of the way just in time."

Later that night, an unidentified man called the police department from a payphone, reporting that his girlfriend had stabbed him and that she was located at the street address for the Bell residence. Jones and Ramos again responded to the Bell residence, but no one there knew anything about an alleged stabbing and Alexis Bell was not home. The officers proceeded to the payphone location. They saw defendant walking on Martin Luther King Boulevard, and placed him under arrest. The officers took defendant back to the Bell residence, where Merl and Rodesha identified him as the person driving the U-Haul van earlier that day.

When processing defendant at headquarters, the police confiscated a key to a U-Haul van from him. When asked his name, defendant gave an alias ( Anthony Mathis ), but when signing the property report receipt, he began to sign the name Tormu Prall, stopped after realizing his mistake, and did not sign anything after that.

After processing, defendant complained of chest pains and was taken to the hospital. He was arraigned at the hospital by a Trenton municipal court judge on the following evening. After the judge informed him of the charges, defendant asked if he could ask a question. When the judge said that he could, defendant asked how he could be charged with aggravated assault on a police officer if he did not even hit him.

A white U-Haul van was recovered by another patrol unit later that same evening and towed to the station. The key recovered from defendant fit into the ignition of the U-Haul van.

After receiving both written and verbal Hudson1 warnings, defendant failed to appear at the original trial date of November 13, 2007, or at the subsequent trial date, December 17, 2007. On January 7, 2008, the court ruled that the trial would proceed in absentia. The defense rested without calling any witnesses.

Defendant presents the following issues in this appeal:

POINT I

THE INCULPATORY STATEMENT MADE BY THE DEFENDANT DURING THE FIRST APPEARANCE PURSUANT TO R.3:4-2 SHOULD HAVE BEEN EXCLUDED ON THE GROUNDS OF FUNDAMENTAL FAIRNESS.

POINT II

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON HOW TO EVALUATE ORAL STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT. (NOT RAISED BELOW)

POINT III

PREJUDICIAL OTHER CRIME EVIDENCE WAS ADMITTED WITHOUT LIMITING INSTRUCTIONS AND IN VIOLATION OF THE MANDATE OF N.J.R.E. 403. (NOT RAISED BELOW)

POINT IV

THE SENTENCE IMPOSED OF TEN YEARS WITH A FIVE YEAR PAROLE BAR WAS MANIFESTLY EXCESSIVE. IN ADDITION, THE RESISTING ARREST CONVICTION MUST BE MERGED WITH THE ELUDING COUNT AS IT WAS BASED UPON THE SAME CONDUCT.

A. THE QUANTUM OF SENTENCE IS EXCESSIVE.

B. THE RESISTING ARREST CONVICTION MUST BE MERGED WITH THE ELUDING CHARGE.

After carefully reviewing the briefs and record, we are satisfied that all of defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

Defendant challenges the admissibility of the question he asked of the municipal court judge during his arraignment. Although defendant was in custody, it is evident that his question was not the product of any interrogation and was completely voluntary. This argument is completely lacking in merit.

Two significant points provide the context for the arguments raised in Points II and III.

First, neither argument was presented to the trial court. "The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because the issues presented in Points II and III are raised for the first time on appeal, our review is limited to "a search for plain error," State v. Nesbitt, 185 N.J. 504, 516 (2006), that is, that the alleged error was "clearly capable of producing an unjust result," R. 2:10-2.

Second, the evidence against defendant was overwhelming. He was identified by several people who knew him personally. There was corroborating evidence for their identifications, e.g.: (1) the key in his possession at the time of his arrest fit the U-Haul van described by the police officers and abandoned, and (2) he was present in the vicinity of the payphone used to call the police department after the incident. Finally, his conduct was unequivocal regarding his efforts to flee and the threat to the police officer.

In Point II, defendant argues that evidence of certain statements attributed to him required the court sua sponte to instruct the jury pursuant to State v. Hampton, 61 N.J. 250 (1972) and State v. Kociolek, 23 N.J. 400 (1957). In addition to the question imprudently asked of the municipal court judge, he identifies statements by Rodesha that he threatened her family as requiring these charges. However, a Hampton charge is not required "when a defendant has allegedly made a voluntary inculpatory statement to a non-police witness without being subjected to any form of physical or psychological pressure. State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div.), certif. denied, 149 N.J. 143 (1997). As for the Kociolek charge, there was no genuine dispute as to the precise contents of the statements attributed to defendant that would have prompted the need for such a charge. State v. Campisi, 47 N.J. 455, 460 (App. Div. 1957), certif. denied, 26 N.J. 304 (1958). Therefore, it was not plain error for the court to fail to give these charges sua sponte.

Turning to defendant's arguments in Point III, he argues the court was required, sua sponte, to exclude evidence: regarding his prior arrests, that the dispatch described the events of the evening as a domestic violence pursuit, what charges were filed against him, that he gave an alias at processing, and Alexis Bell s testimony that she and defendant went to Lowe s in Pennsylvania to obtain parts to make a silencer. There can be little doubt that evidence of defendant's prior arrests and, in particular, Alexis's testimony about plans to make a silencer, had the potential to prejudice defendant. However, in light of the overwhelming evidence of defendant's guilt, this evidence lacked the clear capacity to produce an unjust result. See State v. Gillispie, ____ N.J. ____, ____ - ____ (June 9, 2011) (slip op. at 40-43). (Although there was "no excuse for admitting the unduly prejudicial details" of a prior robbery and shooting in a double homicide case where the prejudice was not outweighed by any probative value, and the instruction was inadequate, the Court concluded that the errors were harmless in light of the "overwhelming proof" of defendants' guilt.)

Finally, the trial court's determination of an appropriate sentence is entitled to our deference "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). Defendant has not identified any aggravating factor erroneously found by the court or any mitigating factor supported by the evidence that the court failed to find. Moreover, merger was not required in light of the separate elements and factual predicates for the offenses for which defendant was convicted. Therefore, defendant's challenge to his sentence fails as well.

1 State v. Hudson, 119 N.J. 165 (1990) (holding that a defendant may waive his presence at trial by either a written or oral waiver or by conduct evincing what is in effect such a waiver).