STATE OF NEW JERSEY v. TYSHON RUFFIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4367-04T44367-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYSHON RUFFIN,

Defendant-Appellant.

________________________________________

 

Submitted June 13, 2006 - Decided June 30, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-04-0592.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a second jury trial, defendant was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). A four-year custodial term was imposed, along with the necessary fines and penalties. We reverse.

On November 28, 2003, a New Brunswick police officer, while on patrol, saw defendant "reaching into his pocket and attempting to hand a female something." The officer and his partner decided to investigate further and "tried calling [defendant] over [to] the vehicle" asking "sir, can I talk to you for a second?" Defendant kept walking down the street and as the officers pulled up in their patrol car, he walked into an alleyway. He was followed by one of the officers who testified that after he got out of the vehicle to pursue defendant, defendant looked over his shoulder, started walking faster and "reached back into [his] jacket pocket . . . and dropped a bag . . . ." Defendant was arrested, the bag was retrieved and found to contain six bags of cocaine. Defendant was charged with possession of the cocaine and two counts of possession with intent to distribute.

Defendant's testimony presented a different scenario. He admitted to an encounter with the officer, but denied possessing the cocaine or dropping the bag. He did not hear the police calling him, and was not aware they were following him. He went down the alley looking for a friend to get a ride to go shopping when he was suddenly accosted by the police.

Needless to say, the jury's task was to determine which version was the credible one - the officers' or defendant's. During defendant's first trial, the jury evidently was not overwhelmed with the officers' credibility as defendant was acquitted of the two counts of possession with intent to distribute and was hung on the possession count.

But during the second trial a week later, the prosecutor's zeal to obtain a conviction caused him to exhort to the jury in his summation:

Now, let's look at the two different versions of events. You have Officer Sabo and Detective Mullin explaining to you they're on routine patrol in the area of Pine Street and Georges Road. They make the right-hand turn on to Pine Street. What do they see? They see three individuals about twelve . . . feet - first about twenty-five feet away. They begin getting closer and they see what they think is some type of transaction, narcotics transaction. Okay.

Detective Mullin explained to you that he's now a detective in the Major Crimes Unit. He had spent four years in the Anti-crime Unit, which is the Narcotics Unit, with every day they're out there, folks, doing one thing, street level narcotics transactions. He is pretty familiar with how street level narcotics transactions occur in the city of New Brunswick. He is familiar with it because that's what he did every day for four years. Okay.

Their attention is drawn to what they think might be a narcotics transaction. They've seen this type of activity before. So what do they do? They follow a person they think that is engaged in the transaction. A person that they think might be handing something over to the other person. They wanted to investigate further. Good police work. They follow him. They back the car up, try to get the guy over to the car. Does the defendant come back when Officer Sabo yells, hey, come back? Come over to the car? No, he doesn't. Of course he is not going to come over. Why isn't he going to come over? Because he has something to hide. If he had nothing to hide, he would stop, say, what do you want? I'm not doing anything wrong.

He doesn't stop. He tries to get away. No, he doesn't break into a full sprint across the street, but he is certainly not [walking] back to the police car that is going to him and they are calling him over. He is walking away for a reason. He doesn't want them to look in his pocket. He doesn't want to talk to them. He has something on him. He walks down the road. He crosses Georges Road. They bring the car around. They do a quick U-turn. Officer Sabo came right next to him. He called again, hey, come back here, come over to the car. Defendant still not listening. Okay. He doesn't want to come back to the police car. If he had nothing on him, if he was just out there looking for a ride, he'd stop and say, yeah, what do you want? You know. Stop bothering me. Leave me alone.

No. What does he do? He ducks down a dark, small alleyway. Okay. That's what he does. Is that what an innocent person is going to do? No. An innocent person is going to stop and say, okay, what do you want? He goes down the alleyway. . . .

Although no objection was made at the time, defendant now contends:

POINT I: THE JURORS ERRONEOUSLY CONSIDERED EVIDENCE AND ARGUMENTS THAT THE DEFENDANT HAD REMAINED SILENT WHEN THE POLICE CONFRONTED HIM (Not Raised Below).

A. THE EVIDENCE WAS NOT PROBATIVE AND WAS UNFAIRLY PREJUDICIAL.

B. THE USE OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE NEW JERSEY COMMON LAW.

C. EVEN IF THE DEFENDANT'S SILENCE IS NOT CONSIDERED "NEAR" THE TIME OF ARREST, PRE-ARREST SILENCE TO PROVE HIS GUILT VIOLATES THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW.

POINT II: 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 STATE'S LAY WITNESSES RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED.

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

In light of State v. Muhammad, 182 N.J. 551 (2005), we are in agreement with point IB. When defendant did not stop and speak to the police, the police were well on their way to accomplishing an arrest. Assuming defendant had heard the command, his refusal to comply might be a factor in assessing the reasonableness of the continued investigation and arrest. See State v. Doss, 254 N.J. Super. 122, 129 (App. Div.), certif. denied, 130 N.J. 17 (1992). But see State v. Tucker, 136 N.J. 158, 169 (1994) ("We are not satisfied . . . that the biblical observation that '[t]he wicked flee when no man pursueth' is a satisfactory explanation of why a young man in a contemporary urban setting might run at the sight of the police.") (citations omitted). However, here, the validity of the police pursuit was not at issue. The issue was defendant's credibility. Use of his alleged failure to stop and offer an "innocent" rationale as evidence of his guilt was a "direct reference[] to [defendant's] silence." State v. Muhammad, supra, 182 N.J. at 565. It cannot be tolerated, despite counsel's failure to object. Id. at 573-74. Cf. State v. Black, 380 N.J. Super. 581 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).

We quickly dismiss the State's effort here to cast what occurred into an innocuous comment on "flight." Even assuming the police version, if accepted by the jury and if the jury believed defendant heard the police, would justify a "flight" inference, e.g. State v. Long, 119 N.J. 439 (1990), the jury must be adequately instructed on such an inference. In this respect, it must be told that to find an inference of guilt from "flight," the jury must first find as a fact that there was a "departure" and then find a motive, such as an attempt to avoid arrest or prosecution, in order to turn the "departure" into "flight." State v. Mann, 132 N.J. 410, 421 (1993). Needless to say, no such charge was given the jury.

We, finally, offer one other concern. That is the State's clear suggestion to this jury that, prior to the bag dropping incident, defendant had been engaged in a drug transaction. But the fact is, a prior jury had acquitted defendant of any such transaction. It is for that reason that we are inclined to agree with point II insofar as it asserts the admission of the officers' opinion that what they saw was a drug transaction was erroneous. As we have said, defendant did not challenge the propriety of the officers' investigation, had they actually seen what they said they saw. Rather, he denied that he was engaged in what they claimed he was doing. If defendant is again retried, the opinion that a drug transaction had occurred should not be repeated.

In light of our determination that defendant's conviction must be reversed, we need not, and do not, address defendant's sentencing contentions in point III.

 
Reversed and remanded.

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A-4367-04T4

June 30, 2006