STATE OF NEW JERSEY v. QUAHEIM GRAHAM

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4080-04T44080-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUAHEIM GRAHAM,

Defendant-Appellant.

_______________________________________

 

Submitted January 9, 2006 - Decided January 27, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-10-2036.

Yvonne Smith Segars, Public Defender, attorney for appellant (M. Virginia Barta, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged under a Bergen County indictment with third-degree eluding, contrary to N.J.S.A. 2C:29-2b (count one); and fourth-degree joyriding, contrary to N.J.S.A. 2C:20-10b (count two). The judge granted the State's motion to dismiss count two. Following a trial, the jury returned a verdict finding defending guilty on count one. The judge sentenced defendant to three years of probation, imposed relevant penalties and ordered a six-month suspension of defendant's driving privileges.

I.

We briefly summarize the evidence presented at trial. Officer Michael Christiansen of the Englewood Police Department was on patrol in the early morning hours of June 11, 2003. At about 2:00 a.m., Christiansen was in the parking lot of the Parkview Terrace apartment complex attempting to disburse a crowd that was loitering there. Christiansen explained that the driveway entering the parking lot is narrow and there are "little inlets" on either side that have "little parking areas." The main road curves "like a banana" and goes up to a turn around in a cul-de-sac. Parking is only permitted on the left side of the road because the road is too narrow. Christiansen stopped along side of the crowd, which was to his right in the first parking area.

Christiansen's car was in the center of the travel area of the roadway. Officer Joseph Doyle had arrived earlier and he was ahead of Christiansen on the road in the parking lot. Christiansen testified that, as he was disbursing the crowd, he observed a maroon Dodge enter the lot ahead of Doyle, proceed to the turn around and head back in his direction "at a high rate of speed." Christiansen said, "When [the Dodge] came around the bend it almost struck my vehicle because there wasn't enough room, barely enough room for the vehicle to go by." Christiansen identified defendant as the driver of the vehicle.

Defendant drove out of the complex going south on Fourth Street. Christiansen put on his emergency lights, backed out of the parking area and pulled forward to pursue defendant. Christiansen said that he turned on his overhead lights, the flashing lights and the strobe lights on the grill, and the tail lights. Christiansen did not immediately turn on his police siren. However, when Christiansen approached the first stop sign, he "hit the siren." Christiansen said that defendant already had a "pretty good jump" on him. By the time he arrived at the stop sign at Third and Fourth Streets, defendant was "already up to the next stop sign."

Christiansen said he was driving the police car as fast as it would go, hitting the brakes at the "last possible second" as he approached a stop sign. He looked quickly to the left and right to see if another vehicle was coming. If he did not have to stop, Christiansen would "floor it again" but he "never gained any ground" on defendant. Without stopping at the stop sign, defendant made a right from Fourth Street onto Warren Street. Defendant did not stop at the stop sign. Christiansen also turned and when defendant slowed down, Christiansen "eventually caught up to" defendant. Defendant pulled over to the side of the road and came to a full stop.

Christiansen got out of his police car and approached defendant's vehicle. Christiansen asked defendant why he did not stop when he put the emergency lights on and the police car came after him. Defendant said that he did not have a driver's license and did not know where to stop. Christiansen said that, at the time no cars were parked on Fourth Street. Christiansen said that there were places on that road where defendant could have pulled his car over and stopped.

On cross-examination, Christiansen said that defendant passed several stop signs without stopping. In his report, he had written that defendant slowed to a roll before he went past the signs. Christiansen agreed that defendant did not "fly" through the stop signs. Christiansen conceded that defendant had not exceeded the speed limit on Fourth Street.

Doyle testified that, in the early morning hours of June 11, 2003, he was on routine patrol and entered the parking lot of the Parkview Terrace apartment complex. Doyle noticed a vehicle speeding away from him at a high rate of speed. The car turned around in the cul-de-sac and proceeded to exit the complex. Doyle said that, in his rear view mirror, he saw that the car almost struck Christiansen's car. Christiansen turned his vehicle around and began to pursue defendant's vehicle. Defendant was driving below the speed limit. Doyle was following in his car driving between twenty-five and thirty-five miles per hour.

Doyle said that he saw that the police lights on Chrisiansen's car were illuminated. Doyle engaged his emergency lights and the siren. Christiansen's car was about twenty yards in front of Doyle's car and Doyle caught up with Christiansen at Fourth and First Streets. He could hear the police sirens inside of his car. He saw the flashing emergency lights reflecting off houses and cars. Doyle did not recall any traffic on Fourth Street at the time. Doyle also did not observe any vehicles parked on either side of the road. Doyle turned right from Fourth Street onto Warren Street and he saw the vehicle pulled over to the side of the road. Christiansen was speaking with defendant.

On this appeal, defendant raises the following contentions for our consideration:

POINT I: THE COURT'S INSTRUCTION TO THE DEADLOCKED JURY IMPROPERLY COERCED A VERDICT (Not raised below).

POINT II: THE CONVICTION MUST BE REVERSED BECAUSE IT STANDS AGAINST THE WEIGHT OF THE EVIDENCE (Not raised below).

We have carefully considered these contentions and thoroughly reviewed the record. We are convinced that there is no merit in either contention and, for the reasons that follow, we affirm.

II.

In State v. Czachor, 82 N.J. 392 (1980), our Supreme Court disapproved the charge for a deadlocked jury that had been sanctioned by the Supreme Court of the United States in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). The Court held in Czachor that the conventional Allen charge was unduly coercive and did not "permit jurors to deliberate objectively, freely, and with an untrammeled mind." Id. at 402. The Court recommended use of the model charge that had been suggested by the American Bar Association (ABA). Id. at 405 (citing ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, 5.4, at 145-147 (Approved Draft 1968)).

The Court in Czachor directed that jurors be provided these instructions in the initial general charge and, "as a matter of sound discretion," the charge may be repeated "if the trial judge finds that the jury has been unable to agree." Id. at 407. The Court stated that, the charge should not be repeated "if the jury has reported a definite deadlock after a reasonable period of deliberations." Ibid. "In determining what constitutes a reasonable length of time, a judge should weigh all the relevant circumstances including the length and complexity of the trial." Ibid.

In this case, the judge provided the following instructions in his initial general charge to the jury:

The verdict must represent the considered judgment of each juror and must be unanimous as to each charge.

This means all of you must agree if the defendant is guilty or not guilty on the one charge.

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.

Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans, you are judges, judges of the facts.

The charge was the precise charge approved by the Court in Czachor, supra, 82 N.J. at 405, and set forth in our Model Jury Charges (Criminal) Criminal Final Charge: Deliberations (April 19, 2004).

The jury began its deliberations at 2:28 p.m. on September 14, 2004, which was the same day that the trial began. At 3:01 p.m., the jury presented five questions to the judge. The jury entered the court room at 3:09 p.m. to hear the judge's responses and retired to continue its deliberations at 3:12 p.m. The jury was excused for the day at 4:40 p.m.

The jury continued its deliberations the following day, September 15, 2004, at 9:00 a.m. The jury requested a read back of testimony, which began at 10:29 a.m. and was completed at 10:55 a.m. It appears that the judge permitted the jurors to take a ten minute break. The jurors continued their deliberations. At 11:35 a.m., the jury presented a note to the judge which stated, "At this time the jury cannot come to a verdict. No one feels that we can reach one."

The judge reviewed the matter with counsel and decided to repeat the instructions approved in Czachor. Defense counsel did not object. The judge called the jurors back to the court room. He read the jury's note into the record and stated the following:

With that in mind I first have to give you another charge. I want you to consider, you have to consider this charge. You heard it already but I have to. Then we'll see what happens after that.

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges, judges of the facts.

Now I have to ask you to return again to the jury room and to consider deliberations in light of what I have read to you. And then let me know what you decide. Please return to the jury room.

The jury continued its deliberations at 11:40 a.m. and returned its verdict at 12:25 p.m., finding defendant guilty as charged.

Defendant argues that the judge abused his discretion in re-reading the Czachor charge on deliberations. Defendant contends that the jury had deliberated for a reasonable period of time. He also contends that the juror's note to the judge made clear that further deliberations would not be productive.

We disagree. As we stated previously, before declaring a deadlock, a trial judge may require a jury to deliberate for a reasonable period of time. Czachor, supra, 82 N.J. at 407. "What constitutes a reasonable amount of time is influenced by the length of the trial and the complexity" of the issues. State v. Hightower, 146 N.J. 239, 258 (1996) (citing State v. Ramseur, 106 N.J. 123, 303 (1987)). Although only two witnesses testified in this case, and the trial was relatively short, the jury was required to determine whether the State had proven all of the elements of eluding beyond a reasonable doubt. The jurors asked five questions and requested a read back of testimony. When the jury sent its note to the judge, it had only deliberated about four hours. We are not convinced that, in the circumstances, the judge abused his discretion in requiring the jury to continue its deliberations.

Moreover, the note sent to the judge did not indicate that there was "no reasonable probability of agreement." Czachor, supra, 82 N.J. at 407. The note stated that, "No one feels that we can reach [a verdict]." However, the note also stated that the jury could not reach a verdict "[a]t this time[.]" The note did not state unequivocally that the jury was hopelessly deadlocked. In the circumstances, the trial judge did not abuse his discretion by repeating the charge approved in Czachor.

We again point out that defense counsel did not object. Obviously counsel did not believe that there was any error in the judge's decision to re-instruct the jury and direct the jury to continue its deliberations. We are satisfied that the judge's determination was not erroneous, let alone an error that is clearly capable or producing an unjust result. R. 2:10-2.

III.

Defendant next argues that the judgment is against the weight of the evidence. This issue also was not raised in the trial court. Under R. 2:10-1, this contention is "not cognizable on appeal since no motion for a new trial on that ground was made in the trial court." State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Although we are not required to entertain this contention, we have elected to do so in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1992), certif. denied, 134 N.J. 476 (1993).

We examine the evidence to determine "whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Id. at 512 (quoting from State v. Carter, 91 N.J. 86, 96 (1982)). However, we will not set aside a verdict merely because we might have reached a different conclusion based on the evidence. Ibid. (citing State v. Johnson, 203 N.J. Super. 127, 134 (App. Div. 1985), certif. denied, 102 N.J. 312 (1985)). When the verdict is based upon the jury's evaluation of the credibility of the witnesses, an appellate court should not intervene unless there is clear evidence that the jury was mistaken or prejudiced. Ibid. (citing State v. Haines, 20 N.J. 438 (1956)).

Applying these principles, we are satisfied that the jury could rationally find beyond a reasonable doubt that the State had proven all of the elements of eluding under N.J.S.A. 2C:29-2b. The statute provides in pertinent part that

[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. . . .

[Ibid.]

There was sufficient evidence in the record to establish that defendant was operating a motor vehicle on June 11, 2003. Furthermore, there was sufficient evidence from which a jury could find that the officers signaled defendant to stop. Christiansen testified that defendant proceeded out of the parking area of the Parkview apartment complex onto Fourth Street at a high speed. Christiansen and Doyle followed defendant's car. The emergency lights and the sirens in the police vehicles were engaged. Both Christiansen and Doyle said that the emergency lights on their police vehicles were visible. Doyle testified that the sirens were audible.

The evidence also was sufficient for the jury to rationally find that defendant knowingly fled or attempted to elude the officers. Defendant drove past two stop signs on Fourth Street without stopping. He did not stop at the stop sign at the intersection of Fourth Street and Warren Street. Defendant turned right onto Warren Street and traveled an additional 500 feet before he finally pulled over. When questioned by Christiansen, defendant said that he did not stop because he did not have a driver's license and he did not have a place to stop. However, both Christiansen and Doyle said that there were no cars parked on Fourth Street. The evidence allowed the jury to conclude that defendant could have stopped on Fourth Street when signaled to do so by the police, and by failing to stop, defendant was fleeing or attempting to elude the officers in violation of N.J.S.A. 2C:29-2b.

 
Affirmed.

(continued)

(continued)

13

A-4080-04T4

January 27, 2006

 


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