STATE OF NEW JERSEY v. RASHEEN NORWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHEEN NORWOOD,

Defendant-Appellant.

February 14, 2014

Submitted January 13, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-10-1163.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Rachel G. Cook, Assistant Prosecutor, on the brief).

PER CURIAM

Tried by a jury, defendant Rasheen Norwood was found guilty of second-degree eluding police, N.J.S.A. 2C:29-2b; third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2).1 After appropriate merger, defendant was sentenced on the eluding conviction to a seven-year term of imprisonment. Defendant appeals, and we affirm.

According to the State's proofs, on August 7, 2012, at 12:12 a.m., Trenton Police Detectives Charles Steever and Robert Runof were on patrol in an unmarked police vehicle when they observed a gray Ford Taurus pass them at a high rate of speed onto Broad Street towards the Battle Monument. Detective Steever estimated the vehicle's speed to be approximately forty miles per hour, while the speed limit in that area was twenty-five miles per hour. In their pursuit of the vehicle, the detectives activated the emergency lights and siren of their patrol car.

Eventually, the Taurus pulled over to a curb on the side of the road near a "well lit area" close to the Battle Monument. At the time of the stop, Detective Runof, while the headlights were still on, activated the vehicle's spotlight "directly [toward] the left side of the driver . . . ." Detective Steever was able to observe defendant's profile and noticed that he was wearing a white tee shirt and had "distinctive little twist braids in his hair throughout his whole head." At the time, defendant was crouching as if he was reaching under the seat to the floor board of the vehicle. While the detectives exited their patrol vehicle, defendant pulled away "into the oncoming lane of traffic, went around [a] vehicle, and then proceeded to continue up Pennington Avenue."

At that point, Detective Steever radioed dispatch that a bluish gray Taurus was fleeing from a traffic stop at a high-rate of speed on Pennington Avenue. As they gave chase, the detectives observed the vehicle "continue[] up Pennington Avenue where it ran two red lights . . . made a left turn onto Prospect Street . . . [a]gain, it passed a vehicle in the oncoming lane of traffic, . . . continued down Prospect, went through two more red lights at Bellevue and Spring Street." While travelling at approximately sixty miles per hour, the detectives saw defendant "narrowly miss[] striking [another] vehicle and continue[] at a high rate of speed up West State Street towards Lee Avenue." As defendant travelled on Lee Avenue, he discarded a black bag out the driver's side window, and then made a sharp right turn onto Bruce Park Drive, where he "lost control of the vehicle and crashed into [a dirt] embankment. . . ."2

The detectives pulled up within a car length of the crashed vehicle and observed both defendant and a passenger exit the vehicle. The passenger immediately darted toward a nearby wooded area while defendant came around the driver side door, "and as he's doing so, he look[ed] back to see . . . what [the detectives'] location [was] . . . and then he proceeded around the front of the vehicle into the wooded area."

As defendant turned and looked back in the detectives' direction, Steever clearly observed him in a well-lit area while the patrol car's headlights and spotlight were on. Detective Steever described defendant as a "[b]lack male . . . [with] a dark goatee . . . short twist braids in his hair wearing a white tee shirt and blue jeans."

The detectives pursued defendant and the passenger into the wooded area and advised dispatch and responding units of their location and the physical descriptions of the suspects. After the detectives lost sight of the two men, they were notified that Officer Sam Johnson detained an individual that matched their description of the driver about two blocks from where defendant crashed the vehicle. That individual, a black male with short braided hair and wearing blue jeans, "was sweating, appeared to be out of breath[,]" and "had cuts and abrasions on the side of his face." The detectives proceeded to Officer Johnson's location, where they were "able to identify the person he had stopped as the driver of the vehicle." They too described defendant at the scene as sweaty and out of breath, with abrasions on his face, shirtless and wearing torn blue jeans. The passenger, later identified as Brandon Barnes, was also located nearby, covered in mud.

Defendant was arrested, at which time the detectives ascertained that he had two home addresses, both within three miles of the accident scene. Detective Steever then issued defendant motor vehicle citations for careless driving, reckless driving, improper passing, and failure to observe the traffic signals.

On appeal, defendant raises the following issues:

I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE PROSECUTOR SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO PRODUCE WITNESSES WHO COULD VOUCH FOR HIS INNOCENT PRESENCE NEAR THE CRIME SCENE. (Not Raised Below)

II. THE DEFENDANT'S RIGHT TO BE FREE FROM SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY COMMON LAW WAS VIOLATED WHEN THE PROSECUTOR EXTRACTED A PENALTY AND AN ADVERSE INFERENCE AGAINST THE DEFENDANT FOR HIS FAILURE TO TESTIFY. (Not Raised Below)

III. THE TRIAL COURT PERMITTED JURORS TO INFER THAT THE DEFENDANT CAUSED THE RISK OF INJURY WHILE ELUDING BASED ON MOTOR VEHICLE VIOLATIONS, EVEN THOUGH THE DEFENDANT HAD NOT BEEN CONVICTED OF ANY MOTOR VEHICLE VIOLATIONS AND THE JURY HAD NO LEGAL GUIDANCE ON THE LAW OF MOTOR VEHICLE VIOLATIONS. (Not Raised Below)

IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS KEY WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (Not Raised Below)

V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF ATTEMPTED ELUDING. (Not Raised Below)

A. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPTED ELUDING EVEN THOUGH IT WAS AN ESSENTIAL ELEMENT OF THE OFFENSE.

B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPTED ELUDING REQUIRES PURPOSEFUL CONDUCT AND THAT THEY CANNOT FIND THAT THE DEFENDANT KNOWINGLY ATTEMPTED TO ELUDE.

VI. THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Because none of these issues, save the last, were raised below, we consider them under the plain error standard, that is whether the claimed error was "of such a nature as to have been clearly capable of producing an unjust result. . . ." R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997). Measured by this standard, our review of the record reveals no error, much less plain error.

I.

Defendant contends that the prosecutor in summation referred to the defendant's unexplained presence at the scene and thereby impermissibly attempted to shift the burden of proof. We disagree.

In reviewing whether a prosecutor's remarks during summation requires reversal, we determine whether the conduct

"was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Loftin, 146 N.J. 295, 386 (1996). To make this determination, we must "examine any timely and proper objections made by defendant, whether the remarks were withdrawn and how the trial court dealt with any improper remarks, including issuance of any curative instructions." State v. Hawk, 327 N.J. Super. 276, 281 (App. Div. 2000).

During summation, "[p]rosecutors are afforded considerable leeway . . . as long as their comments are reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82. "'[I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, by way of comment, denunciation or appeal will afford no ground for reversal.'" State v. Mahoney, 188 N.J. 359, 376 (quoting State v. Smith, 167 N.J. 158, 178 (2001)), cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82.

"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. Further, defendant's failure to raise an objection in the face of prosecutorial misconduct "deprives the court of the opportunity to take curative action." Ibid. In addition, "[g]enerally, remarks by a prosecutor, made in response to remarks by opposing counsel, are harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993); see also, State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).

Here, in closing and after explaining the importance of circumstantial evidence in general, the prosecutor remarked:

And in this case, we have some circumstantial evidence. The defendant was found two streets away from where the accident occurred on Bruce Park Drive. He's alone, and he's far from home. Look at this. Remember when Officer Steever gave us the addresses of the defendant, . . . and he was found all the way up here . . . . He's all the way from home, sweaty, out of breath, just hanging out on the street. What was he doing out there? He crashed the stolen car he was driving and was running from police. There is no other explanation for why he was out there. But that is circumstantial evidence.

Again, the location, even though we can see on the maps, the Google map and the other street map we use, his location is really actually pretty close. We have the gas station we can see from the crash site. And then we can see it down from Sanhican where he was. So, really, he was pretty close. It was very easy for him to run through the woods and circle back around and cut through one of those cut-outs between the houses on Sanhican. It's absolutely possible. In fact, that's what happened.

His appearance. Again, this is circumstantial evidence, ladies and gentlemen.

[Emphasis added.]

The prosecutor went on to comment that defendant's physical appearance at the time of arrest described as sweaty, out of breath, wearing torn jeans, and having scratches on his face was also circumstantial evidence of an individual who had recently eluded law enforcement by running through the woods.

We discern nothing impermissible in these comments, much less "egregiously so" as to amount to reversible error. In the first instance, the prosecutor's remarks about defendant's location at the time of arrest being proximate to both the crash site and both his home addresses were based on the evidence at trial as well as the reasonable inference to be drawn therefrom. That fact, coupled with his physical appearance and condition when detained, provided substantial circumstantial proof that defendant was the eluder, and therefore was proper commentary for the prosecutor's summation. Second, the prosecutor's reference was in direct response to defense counsel, who argued in summation that it was unlikely defendant was the driver because in order to get to the arrest location from the crash site, the driver would have had to avoid about twenty police officers, who were all notified of the incident. See, e.g., C.H., supra, 264 N.J. Super. at 135. Third, defense counsel's failure to object "indicates that defense counsel did not believe the [prosecutor's] remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576.

Lastly, any claimed confusion over the burden of proof was clarified by the judge's instructions to the jury, expressly and repeatedly explaining the State's obligation to satisfy every element of each offense beyond a reasonable doubt. The judge specifically explained that defendant enjoys a presumption of innocence and that the "burden [of proof] never shifts to defendant." Moreover, the court clearly and comprehensively instructed on defendant's right to remain silent and that the exercise of that right may not be considered by the jury "for any purpose or in any manner . . . ."

Thus, the unchallenged comments of the prosecutor about defendant's location in relation to the crash site were soundly based in the record and directly responsive to defense counsel's contrary suggestion. We find no error, much less plain error, in this conduct.

II.

Defendant next faults the trial judge for instructing the jury that they may use evidence of motor vehicle violations to infer that defendant created a risk of death or injury during his eluding, even though he was not convicted of these infractions and the jury was not instructed on the elements of the motor vehicle violations. We discern no plain error. The proof of defendant's motor vehicle infractions was overwhelming and in any event no adverse inference was needed to demonstrate that defendant's conduct created a risk of death or injury.

N.J.S.A. 2C:29-2b provides:

[a]ny person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.

This provision is "intended to protect all persons . . . including the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route." State v. Wallace, 158 N.J. 552, 560 (1999). To that end, "the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others." Ibid. The statute also allows "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes." N.J.S.A. 2C:29-2b.

The court's instruction to the jury, which essentially mirrored the Model Jury Charge and to which no objection was voiced, comported with these aforementioned legal principles. Specifically, the court instructed:

Injury means physical pain, illness or any impairment of physical condition. In order to find this element, number seven, you must determine there was at least one person put at risk by the defendant's conduct, which could include defendant himself, any person along the chase route, any police officer in a chasing vehicle, or anyone else in the eluding vehicle. You may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this state.

It is alleged that the defendant's conduct involved violations of the motor vehicle laws. Specifically, it is alleged that the defendant committed several motor vehicle violations during the car chase: Careless driving, reckless driving, improper passing, and failure to observe traffic signals. Whether or not he is guilty of those motor vehicle offenses will be determined by an appropriate court. In other words, it is not your job to decide whether he is guilty or not guilty of the motor vehicle offenses. However, you may consider the evidence that he committed motor vehicle offenses in deciding whether he created a risk of death or injury. At the same time, remember that you are never required or compelled to draw this inference. As I've already explained to you, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference, and you are always free to accept or reject any inference if you wish.

[Emphasis added.]

As noted, defense counsel did not object to this instruction both at the jury charge conference and at the time the jury was charged, and thus it may be presumed he perceived no prejudice in the instruction as given. See State v. Wilbely, 63 N.J. 420, 422 (1973).

Nevertheless, defendant now complains that the court permitted the jury to infer that he caused a risk of injury while eluding based on motor vehicle violations, even though he had not been convicted of any motor vehicle violations and the jury had no legal guidance on the law of motor vehicle violations. This newly advanced claim lacks merit.

The failure to explain the elements of the motor vehicle violations charged careless driving (N.J.S.A. 39:4-97); reckless driving (N.J.S.A. 39:4-96); improper passing (N.J.S.A. 39:4-85); and failure to observe traffic signals (N.J.S.A. 39:4-81) was harmless error given the overwhelming proof of these offenses in the record. But separate and apart from any permissive statutory inference, the proofs otherwise clearly established that defendant's conduct created a risk of death or injury to others, including defendant himself, his passenger, the police officers, and motorists and pedestrians in the area. In this regard, the evidence demonstrated that defendant sped through the city of Trenton at speeds up to sixty miles per hour, running four red lights, driving on the wrong side of the road, weaving through traffic, narrowly missing an oncoming vehicle, and eventually crashing into a dirt embankment. This evidence, therefore, is more than sufficient, without the permissive inference, to support defendant's second-degree eluding conviction.

III.

Defendant also ascribes error to the court's failure to instruct the jury that the crime of "attempt to elude" requires "purposeful" as opposed to simply "knowing" conduct. This argument too lacks merit.

We repeat the statutory provision for ease of reference:

Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.

[N.J.S.A. 2C:29-2b (emphasis added).]

In State v. Mendez, 345 N.J. Super. 498, (App. Div. 2001), aff d, 175 N.J. 201 (2002), similar to the present matter, the defendant argued that because the statute forbids "attempt[ing] to elude" the mental state required for this conduct should be "purposely." Id. at 508. We rejected this argument and found that the "knowingly" requirement applied to both fleeing and an attempt to elude. Id. at 508-09. We explained that "the probable legislative intent in defining the conduct element of eluding as 'flees or attempts to elude' rather than 'flees or eludes' was to foreclose any argument that success in avoiding police apprehension is an element of the offense . . . ." Id. at 508. Thus, we held that the culpability requirement for both fleeing and attempting to elude is "knowingly." Id. at 509.

Here, the court charged the proper culpability requirement for the eluding offense. In any event, the evidence clearly demonstrates that defendant fled from the police and was not merely attempting to elude. Defendant led the two detectives on a high-speed chase where he was able to briefly avoid apprehension until he was eventually captured by Officer Johnson. As we explained in Mendez, supra, "attempt to elude" was imported into the statute, not to require a higher culpability requirement for the crime, but to expand the reach of the statute by ensuring that merely trying to avoid police apprehension without success is enough for a conviction. Id. at 508. Thus, "attempting to elude" was not even at issue in this case.

IV.

Defendant next attempts to challenge the sufficiency of the State's evidence by attacking two statements in Detective Steever's extensive testimony concerning his "approximation" of defendant's speed and his "belief" that defendant was sweating. This effort fails. On both accounts, Detective Steever testified based on his first-hand knowledge, personal sense and direct observations of the car chase as well as defendant's physical appearance at the time he was apprehended. Such testimony was clearly competent and admissible, N.J.R.E. 602, and its weight is a matter for the jury. See State v. Lazo, 209 N.J. 9, 24 (2012).

Suffice it to say, there was substantial credible evidence identifying defendant as the eluding driver and that his elusive conduct created a risk of death or injury. As to the former, both detectives had two separate points in time to view defendant in well-lit areas: first, when defendant initially pulled to the curb; and second, when he exited from the crashed vehicle and turned and looked at the detectives before running into the woods. Moreover, defendant was apprehended near the scene of the crash, in torn jeans, out of breath and with scratches on his face, further corroborating his identity as the eluding driver. And as to the latter, both the course and circumstances of the chase as well as the ultimate loss of control of the vehicle and its crash clearly evidence the proscribed conduct.

V.

Lastly, defendant argues his sentence was excessive. We disagree.

In imposing the seven-year prison term, the court balanced the aggravating factors of "(3) [t]he risk that the defendant will commit another offense"; "(6) [t]he extent of the defendant's prior criminal record"; (9) the need to deter; and (13) the offense was committed using a stolen motor vehicle, N.J.S.A. 2C:44-1a(3), (6), (9) and (13), against the mitigating circumstance that imprisonment would cause hardship to defendant and others, N.J.S.A. 2C:44-1b(11). Even if we disregard aggravating factor 13 in light of defendant's conviction of unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c, the balance of aggravating circumstances far outweighed the only mitigating factor supported in the evidence. Considering defendant's extensive criminal record, which included five previous convictions involving either theft or eluding, and further that he was extended-term eligible as a persistent offender, N.J.S.A. 2C:44-3, the sentence meted out does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

1 Defendant was acquitted of third-degree theft by receiving stolen property, N.J.S.A. 2C:2-7a.

2 During the chase, the detectives learned that the vehicle had been reported stolen an hour earlier.