STATE OF NEW JERSEY v. ERNEST JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0945-05T40945-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNEST JOHNSON,

Defendant-Appellant.

__________________________________

 

Submitted December 3, 2007 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of

New Jersey, Law Division, Salem County,

04-09-0326 and 04-10-0361.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Michael J. Forte, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Ernest Johnson, was tried in absentia to a jury and was found guilty of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5), third-degree resisting arrest, N.J.S.A. 2C:29-2a, and fourth-degree hindering prosecution, N.J.S.A. 2C:29-3b. The trial judge imposed four years imprisonment for the aggravated assault conviction, four years imprisonment for resisting arrest, and nine months imprisonment for hindering prosecution. The terms were run concurrent with one anther.

At approximately 5:15 a.m. on July 31, 2004, while patrolling a neighborhood in Penns Grove in his police car, uniformed police officer Sgt. Charles Brown, was approached by two men who gave Brown "information about a[n] incident involving a car and a subject being in a car," and the subject's direction of travel. Having "knowledge that there was previous criminal activity involving the same kind of activity [the men] described," Brown radioed this information to dispatch so that other patrolling units could search for the subject. During cross examination, Brown responded affirmatively when asked whether he was aware at the time that there had been some burglaries in the area and thought, after being approached by the two men, that there was some relationship between the subject they described and the recent burglaries.

Brown proceeded on foot in the direction the subject reportedly took. Eventually, Brown saw defendant in a residential front yard, walking in Brown's direction. When Brown was about twenty feet from defendant, he could see that defendant had a gray shirt on which was soaked with sweat. He thought defendant looked "out of place." Brown asked defendant to stop and asked him what he was doing. Defendant responded that he was looking for his girlfriend and asked Brown if he had seen her, describing her as wearing a short skirt. Defendant kept walking. Brown told him again to stop and when defendant did not, Brown told him to get on the ground. Defendant asked why, and continued to walk away.

Brown believed defendant was going to flee. Brown told defendant he was under arrest, after which defendant made a sudden move to his left. Brown responded by reaching out and grabbing defendant's shirt. Defendant "started . . . pummeling" Brown, punching him in the face and chest, and "attempting to get away in a very vigorous manner." After an extensive face-to-face struggle, during which Brown kept hold of defendant's shirt, defendant slipped from Brown's grasp and out of his shirt and ran off. Brown was unable to overtake defendant or find him, but retained defendant's shirt, which he had pulled off during the struggle. As a result of the altercation, Brown suffered bruises, swelling and a laceration on the bridge of his nose, and his glasses were broken, but no photographs were taken and the broken glasses were not preserved in that state.

The next day, August 1, 2004, when Brown reported for duty, he saw defendant sitting on a bench at police headquarters. Defendant had been arrested by Officer Jason Sperra. Sperra knew about Brown's encounter the day before and had been informed that an individual by the name of Rodney Dunn was suspected of being the escapee. Sperra observed defendant while on patrol. Defendant matched the description given by Brown and had bruises and scratches on his neck. Believing the individual was known as Rodney Dunn, Sperra asked defendant for his name. Defendant responded that his name was Ernest Dunn. Later that day, defendant was identified as Ernest Johnson.

At headquarters, Brown identified defendant as the escaped suspect and directed that defendant be placed in a holding cell. Brown gave defendant his Miranda rights. Defendant told Brown his name was Ernest Dunn and Brown wrote that name on the Miranda acknowledgement card. However, defendant signed the card with his true name, Ernest Johnson. Defendant's arrest photograph was then taken. On the back of the photograph, an officer wrote "Ernest Johnson a/k/a Dunn."

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION OF HEARSAY EVIDENCE OF "OTHER CRIMES." (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED BY ALLOWING DEFENDANT'S ARREST PHOTO TO BE ADMITTED INTO EVIDENCE IN AN UNDULY PREJUDICIAL MANNER. (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY CHARGE THE JURY REGARDING CREDIBILITY OF WITNESSES. (NOT RAISED BELOW).

a) THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON PRIOR CONTRADICTORY STATEMENTS. (NOT RAISED BELOW).

b) THE COURT ERRED IN FAILING TO CHARGE THE JURY WITH THE "FALSE-IN-ONE, FALSE-IN ALL" INSTRUCTION. (NOT RAISED BELOW).

POINT IV.

THE TRIAL COURT ERRED BY PRECLUDING THE JURY FROM DECIDING UPON ALL MATERIAL ELEMENTS OF THE HINDERING CHARGE.

POINT V.

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

We address the issues raised by defendant seriatim. Defendant asserts, for the first time on appeal, that Brown's testimony concerning his conversation with the two unidentified persons amounted to hearsay evidence, which conveyed to the jury that Brown had received information from a non-testifying individual that defendant was associated with criminal activity, in violation of his Sixth Amendment right to be confronted by the witnesses against him. Because defendant did not raise the issue in the trial court, we must view it in terms of plain error. R. 2:10-2.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Because hearsay is deemed "untrustworthy and unreliable," State v. White, 158 N.J. 230, 238 (1999), it is "not admissible except as provided by [the Rules of Evidence] or by other law." N.J.R.E. 802. However, "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002).

Brown's statement was not offered for the truth of the matter asserted, but instead as background information to establish why Brown was looking for someone that fit defendant's description and why he approached defendant and attempted to stop him. N.J.R.E. 801.

State v. Bankston, 63 N.J. 263 (1973), acknowledged the well-settled rule proscribing that the hearsay rule is not violated when a police officer explains the reasons he approached a suspect or went to the scene of a crime, by stating that he did so "upon information received." Id. at 268 (quotation omitted); see State v. Branch, 182 N.J. 338, 351 (2005). General testimony such as this is admissible to show that the officer was not acting arbitrarily. Branch, supra, 182 N.J. at 351. It is only when the officer "conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged" that the hearsay rule and confrontation clause are violated. Id. at 350 (citing Bankston, supra, 63 N.J. at 268-69). "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271. An officer is allowed to testify, based generally on hearsay evidence, to explain the course of his or her investigation. State v. Frisby, 174 N.J. 583, 592-93 (2002); State v. Roach, 146 N.J. 208, 224-25, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

The testimony from Brown elicited by the State was confined to an "incident" and a "subject." It was only after Brown was cross-examined by defendant's counsel that Brown revealed that he thought there might be some connection between defendant, as described by the men, and past burglaries in the area. More importantly, Brown's testimony did not embrace the type of testimony prohibited by Branch, which "'leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt.'" Id. at 349-50 (quoting Bankston, supra, 63 N.J. at 271). Indeed, the crimes charged had nothing to do with the incident described by the men, rather they stemmed from defendant's criminal response to Brown's attempt to stop him. Thus, Brown's background testimony regarding the reasons for stopping someone matching defendant's description could not have caused the jury to reach a different result on the crimes charged. We are satisfied, based upon our review of the record, that the references made by Brown were not clearly capable of producing an unjust result. See R. 2:10-2.

Defendant next challenges the introduction into evidence of the photograph taken of him at police headquarters with the notation on the back. Defendant concedes that his arrest photograph was properly admitted as reasonably related to identification since he was not present at trial. However, he contends that the reference on the back of the photograph to an alias was improper under State v. Onysko, 226 N.J. Super. 599 (App. Div. 1988), because it "'serve[d] no purpose but to arouse suspicion that the accused is a person who has found it useful and necessary to conceal his identity.'" Id. at 604 (quoting United States v. Grayson, 166 F.2d 863, 867 (2nd Cir. 1948)). In Onysko, aliases used in prior crimes and the word "burglar" typed on the back of the defendant's photograph were, in combination, deemed unduly prejudicial. Id. at 605.

Where the use of an alias "bears on some other issue relevant to the State's meeting of its burden of proving guilt beyond a reasonable doubt," such as identification, the notation referencing an alias may be admissible. State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988). The alias noted on the back of the photograph came from information provided by defendant, rather than his criminal record, and was material to the charge of hindering prosecution by giving a false name. The admission of the information did not amount to error, much less plain error.

On direct examination, Brown testified that the person who assaulted him had "some facial hair." On cross-examination, he acknowledged that he had written in his contemporaneously prepared report that his attacker "possibly had facial hair." Defendant now contends that the failure of the judge to instruct the jury regarding prior contradictory statements or "false-in-one false-in-all" was plain error.

A "false-in-one, false-in-all" charge is discretionary and may be given when there is some indicia that the witness has intentionally testified falsely as to a material fact. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960); Pierce v. Yaccarino, 72 N.J. Super. 252, 262 (App. Div. 1962). Further, to qualify as an inconsistent statement, there must be "one or more conflicting versions of the same event." State v. Hammond, 338 N.J. Super. 330, 342 (App. Div.), certif. denied, 169 N.J. 609 (2001). Simply stated, the challenged statements are not contradictory and there is no evidence to indicate that Brown was testifying falsely to a material fact.

Defendant asserts that the judge deprived the jury of the opportunity to decide each element of the charge of hindering one's own prosecution or apprehension.

N.J.S.A. 2C:29-3 provides, in relevant part:

b. A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:

. . . .

(4) Gives false information to a law enforcement officer . . . .

The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.

Prior to the taking of testimony, defense counsel argued unsuccessfully that evidence should be presented and the jury permitted to decide what crime defendant knew he was to be charged with for the purpose of the grade of the hindering charge. The judge found that evidence of defendant's parole status could not be admitted and that any testimony regarding defendant's motivation to give the wrong name would be speculative on the part of the officer. The judge instructed the jury with the Model Jury charge on hindering one's own apprehension or prosecution, N.J.S.A. 2C:29-3b.

Footnote 1 to Model Jury Charge (Criminal), "Hindering One's Own Apprehension or Prosecution" (2001), provides:

Note that the degree of this crime upon conviction depends upon whether the offense that the defendant had been or was likely to be charged with would have constituted a crime of the second degree or greater, a crime of the third degree, or a crime of the fourth degree or less. Any issue regarding what degree of crime defendant knew that (he/she) had been or would likely be charged with must be submitted to the jury, along with definitions of the elements of the crimes or offenses that the issue of knowledge entails. (Emphasis added).

Brown's testimony established that defendant was his assailant and, therefore, the jury could reasonably infer that defendant knew that assaulting a police officer and resisting arrest were the crimes for which he would be charged if apprehended. The judge correctly decided, contrary to defendant's argument, that the jury could not be instructed on the hindering charge as a disorderly persons offense. There was insufficient evidence that defendant knew he had been or would likely be charged with a lesser-degree crime to warrant a more specific jury instruction as directed by the Model Jury Charge.

Finally, our resolution of defendant's Points I, II, III, and IV contentions renders his final contention that cumulative errors resulted in a denial of a fair trial, moot.

Affirmed.

The convictions arose from two separate Salem County indictments, 04-09-0326 and 04-10-00361, which were consolidated for trial.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-0945-05T4

December 14, 2007