STATE OF NEW JERSEY v. TERRI BAILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1689-06T41689-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRI E. BAILEY,

Defendant-Appellant.

_______________________________________________________________

 

Submitted October 3, 2007 - Decided November 1, 2007

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-04-0916.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Terri Bailey appeals from the judgment of conviction and sentence that followed a jury's verdict finding him guilty of second-degree eluding, N.J.S.A. 2C:29-2b, and third-degree resisting arrest, N.J.S.A. 2C:29-2a(2). At sentencing, the judge merged the latter charge into the eluding conviction and imposed a sentence of nine years imprisonment, with a four and one-half year period of parole ineligibility, along with the appropriate financial penalties.

Defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S INCOMPLETE, ERRONEOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF ELUDING. (Not Raised Below).

POINT II

THE DEFENDANT'S RIGHT[S] TO CONFRONTATION . . . WERE VIOLATED BY THE ADMISSION OF THE PAPER ALLEGATIONS.

POINT III

THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW . . . BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF OBSTRUCTING JUSTICE AND HINDERING APPREHENSION.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A COMPLETE INSTRUCTION ON THE LAW OF CREDIBILITY, INCLUDING THE LAW OF PRIOR INCONSISTENT STATEMENTS. (Partially Raised Below).

POINT V

THE TRIAL COURT'S INSTRUCTION ALLOWED A VERDICT OF GUILTY ON THE CHARGE OF ELUDING WITHOUT JURORS REACHING A[N] UNANIMOUS VERDICT . . . . (Not Raised Below).

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, ONE-SIDED, PREJUDICIAL INSTRUCTION ON THE LAW OF CIRCUMSTANTIAL EVIDENCE. (Not Raised Below).

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF OTHER-CRIME EVIDENCE. (Not Raised Below).

POINT VIII

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES . . . WAS VIOLATED BY THE UNLAWFUL DETENTION AND INVESTIGATION OF THE DEFENDANT. (Not Raised Below).

POINT IX

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

This last point is restated in defendant's pro-se supplemental brief which also contains the following point for our consideration:

POINT I

THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT THE CONVICTION.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

The evidence at trial revealed that at approximately 11:00 a.m. on November 30, 2005, in Atlantic City, two members of the Atlantic County Sheriff's Office, Steven Melchiore and Ron Clouser, stopped a gray Sebring driven by defendant. They believed the car's passenger, Keith Blalock, had an open warrant for his arrest. The officers approached both sides of the vehicle, confirmed Blalock was the passenger, informed him of the outstanding warrant, and advised him he was under arrest. Melchiore, who recognized defendant from some prior contacts, requested his driver's license and registration.

Defendant supplied his name and date of birth, but told the officers that although he possessed a valid driver's license, he did not have it with him. Using a hand-held radio, Melchiore radioed his dispatcher to verify defendant's claim. That officer responded to the call by informing Melchiore that defendant had a valid driver's license, but also had an outstanding warrant for his arrest. The volume on the hand-held radio was loud enough for defendant to hear the officer's conversation with dispatch.

Upon hearing the radio transmission, defendant started the Sebring's ignition. As Clouser attempted to reach in the car and turn off the engine, defendant fled the scene at a high rate of speed knocking Clouser to the ground. The car then ran a red light, and, although the officers gave chase in their car, they quickly lost sight of the Sebring. Clouser copied down its license plate number. Both officers subsequently viewed photo arrays prepared by the Atlantic County Prosecutor's Office and identified defendant as the driver of the car.

Michael Taffler, the area manager for Enterprise Rent-a-Car's southern New Jersey area, testified that the company's records revealed that Shenise Staten, who gave her address as 1800 Missouri Avenue, Apartment C, in Atlantic City, rented the Sebring on November 26, 2005, and it was returned on November 30, 2005, at 5:38 p.m. These documents were published to the jury during Taffler's testimony without objection from defense counsel.

The details of defendant's eventual arrest on December 7, 2005, were not disclosed to the jury. As of March 2006, defendant was an inmate in the Atlantic County jail. At a hearing conducted outside the presence of the jury, pursuant to N.J.R.E. 104, the State called Steven Iuliucci, a sergeant at the facility, as its witness. Iuliucci testified that personal records kept by the jail reflected defendant's former address as 1800 Missouri Avenue, Atlantic City. He further testified that as part of its security precautions, the jail kept permanent records of all visitors who entered the complex, and that those records disclosed that Blalock visited defendant on May 14, 2006, and Staten visited defendant on July 29, 2006.

After ruling that the evidence was admissible, and in response to any earlier defense objection, the judge determined that the testimony needed to be "sanitized" to avoid any reference to Iuliucci's position or defendant's incarceration. Therefore, when testimony resumed before the jury, Iuliucci testified that he was "employed at a residential housing community" in Atlantic City, that information regarding the residents' former addresses was gathered in the routine course of business, and that visitors to the community were routinely asked to provide identification when visiting a resident. The jail records of defendant were admitted into evidence.

After Iuliucci's testimony, the State rested. Defendant did not call any witnesses or introduce any evidence. The judge then conducted a charge conference with defense counsel and the assistant prosecutor. Defense counsel requested that the jury be charged with the model "false in one, false in all" instruction citing as a basis the inconsistent statements of the officers at trial. The judge reserved on the request until after defense counsel's summation. However, because, "[he] did not hear anything which remotely resembled or would cause a State v. Hammond charge of material inconsistency between a statement and an earlier statement," the judge also determined that he would not give the model jury charge on inconsistent statements.

The judge then considered whether any lesser-included offenses should be charged. Defense counsel requested only that "every statutory (sic) applicable lesser be charged." The judge then comprehensively considered and rejected any possible lesser-included and lesser-related offenses, the attorneys delivered their summations, the charge was given without objection, and jury deliberations commenced.

The jury found defendant guilty of eluding the police and, in a specific interrogatory, found defendant's conduct created "a risk of death or injury to any person." The jury acquitted defendant of aggravated assault while eluding, N.J.S.A. 2C:12-1b(6), but found him guilty of resisting arrest in the third degree, answering a specific interrogatory that defendant "creat[ed] a substantial risk of physical injury to . . . Clouser or another."

Defendant moved for a judgment of acquittal notwithstanding the verdict, or, alternatively, for a new trial. These motions were denied, and the judge imposed the sentence we referenced above.

Turning to the issues raised by this appeal, Points I, III, IV, V, VI and VII all challenge aspects of the judge's jury charge. Defendant acknowledges that the majority of these issues were not raised below; accordingly, in reviewing these claims of error, we must determine whether the instructions present any instance of plain error by the trial judge, that is, an error that was "clearly capable of bringing about an unjust result." R. 2:10-2; R. 1:7-2. Reversal is warranted only when, after due consideration of the entire jury charge, State v. Jordan, 147 N.J. 409, 422 (1997), the faulty instruction was "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Defendant alleges the judge's charge on the "law of eluding," his charge on circumstantial evidence, and his "other-crime evidence" charge were all erroneous and amounted singly, or collectively, to plain error. These arguments are without sufficient merit to require further discussion. R. 2:11-3(e)(2). We only add these brief comments.

Defendant contends the judge's instruction on the crime of eluding "failed to instruct the jury that the risk of injury must be substantial and not just some possible or imaginary risk," "failed to restrict or limit the risk of injury to physical illness," and allowed the jury to reach a verdict that was not unanimous. We observe that the judge followed the Criminal Model Jury Charge N.J.S.A. 2C:29-2b, and defendant does not argue otherwise. As to the contention that the jury may have reached a non-unanimous verdict because the instructions required that they only find defendant's conduct created a risk "to any person," and not a specific person, we note that the judge directed the jurors' attention to the State's allegation and proofs that defendant's conduct put Officer Clouser, "at the very least," at risk, and that the aggravated assault charge, for which defendant was acquitted, specifically named Clouser as the victim. The jury received specific instructions as to the State's allegations in this regard.

Defendant claims the judge's instruction on circumstantial evidence "suggested that mistaken inferences cannot be drawn from circumstantial evidence." The trial judge illustrated the principles of circumstantial and direct evidence by utilizing the time-honored example of an overnight snow fall that is specifically included within the Criminal Model Jury Charge. He appropriately instructed the jury that "whether or not an inference should be drawn is for you to decide," and, thus, we find no error in this regard.

Defendant claims that the judge's instruction regarding "other-crimes evidence" was inadequate because it failed to advise the jury that it must find this evidence to be "clear and convincing" before using it in its deliberations. This "other crimes" evidence involved Melchiore's testimony that he was advised by radio that defendant had an open warrant for his arrest.

We find the judge's limiting instruction, given first when the testimony was received and reiterated in the final charge, was entirely adequate and tracked the Criminal Model Jury Charge on "Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" which only requires the jury to be "satisfied" that the defendant actually committed the other crime, or, in this case, actually was the subject of an outstanding warrant for his arrest. The charge sufficiently explained to the jury the limited use it could make of the evidence which was appropriately sanitized to avoid any particular reference to the charge contained in the warrant. Defense counsel specifically assented to the contents of the charge as given and we find no error.

We next turn to the two claims of improper jury instructions that were ostensibly objected to by defense counsel at trial. First, defendant claims that the judge should have instructed the jury as to the lesser-included offenses of obstruction of justice, N.J.S.A. 2C:29-1, and hindering apprehension, N.J.S.A. 2C:29-3b(2). While we choose to consider this argument as if it was properly raised before the trial judge, we do note that defense counsel's request was simply to have the judge charge all the statutory "lesser" offenses. The judge concluded, under the facts of the case, there were no "lesser-included" offenses and defense counsel never again objected to the charge as given.

Upon request, "a defendant is entitled to a charge on a lesser-included offense if the evidence presents a rational basis on which the jury could acquit defendant of the greater charge and convict him of the lesser." State v. Viera, 346 N.J. Super. 198, 211 (2001), certif. denied, 174 N.J. 38 (2002). "When a lesser-included offense charge is requested by defendant, a 'trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied.'" State v Grissom, 347 N.J. Super. 469, 477 (2002)(quoting State v. Crisantos, 102 N.J. 265, 278 (1986)).

Here, defendant argues that obstruction and hindering are lesser-included offenses of eluding and/or resisting arrest. We agree with the trial judge's determination that these are not lesser-included offenses. Although both obstruction and hindering are akin to eluding, they both require the actor to have a purposeful state of mind, while eluding only requires that a defendant act knowingly. By definition, therefore, they are not lesser-included offenses. See N.J.S.A. 2C:1-8d(3)(defining a lesser-included offense as one that requires a lesser, not greater, degree of culpability than the offense charged).

The trial judge reasoned that, at best, obstructing and hindering were "lesser-related" charges. Having failed to specifically request such a charge, the judge was under no obligation to sua sponte provide one to defendant. See State v. Thomas, 187 N.J. 119, 134 (2006)(holding "the trial court has no sua sponte obligation to charge the jury on a related offense that is not requested or consented to by the defense"). Nevertheless, the record reveals that the trial judge carefully undertook the obligation of determining whether the evidence supported a charge as to either lesser-related offense. He determined that no rational basis existed in the evidence for the jury to find defendant guilty of the lesser offenses without finding him guilty of the greater offenses for which he was indicted. State v. Brent, 137 N.J. 107, 118-19 (1994). We agree with that determination and therefore find no error in the judge's decision not to charge the jury as to obstructing or hindering.

Defendant next argues the judge erred by refusing to provide the jury with Criminal Model Jury Charge "Prior Contradictory Statements of Witnesses." Defendant contends that Clouser made prior inconsistent statements that "were critical to the defense case, and the court should have given the jurors guidance on how to assess their probative value."

"[I]n determining whether a trial court's failure to give a special credibility instruction constitutes reversible error, a reviewing court must consider not only the entire trial record, including the cross-examination of any witness whose testimony calls for a special credibility instruction, but also the prosecutor's and defense counsel's summations." State v. Walker, 322 N.J. Super. 535, 547 (1999). We have noted that the extended model charge would be appropriate when, "[i]n addition to the inconsistency, the essence of each [statement] may, if the jury chooses, be used as substantive evidence concerning the disputed factual issue." State v. Hammond, 338 N.J. Super. 330, 342 (App. Div.), certif. denied, 169 N.J. 609 (2001). In Hammond, however, we concluded there was no reversible error created by the failure to give the charge because "there was only an inconsistency, not one or more conflicting versions of the same event." Ibid.

Likewise, here, the inconsistencies cited by defendant are not substantial or material enough to have required the more extended charge. We find no error based upon the trial judge's refusal to include it in his instructions.

In Point II, defendant argues that the admission of the records from the Atlantic County jail violated his Sixth Amendment rights to confront and cross-examine the witnesses against him. We disagree.

Initially, as the State points out, defendant never raised this issue below. Although defendant objected to their admission because the records might disclose that defendant was incarcerated at the time, and because they were not properly authenticated and reliable, he never argued that their admission violated defendant's Sixth Amendment rights. As such, the issue was never properly preserved for appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

Even considering the merits of defendant's argument, we find it unpersuasive. After a Rule 104 hearing, the judge determined the jail records met the "business records" exception to the hearsay rule, N.J.R.E. 803(c)(6), and, in particular, found them to be "reliab[le] and trustworth[y]." Iuliucci's testimony established the necessary predicate facts to support the admission of the records. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2007).

More to the point raised, it is undisputed that the "primary purpose" of the jail records was not "to establish or prove past events potentially relevant to [a] later criminal prosecution." Davis v. Washington, 547 U.S. ___, ___, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). Thus, they were not "testimonial," as that term has been understood in recent cases interpreting the Sixth Amendment's Confrontation Clause, and their admission did not violate defendant's constitutional rights.

We refuse to consider Point IX, defendant's argument that the police stop of his motor vehicle was an unconstitutional detention and investigation. Such a challenge must be brought by a timely motion before trial or else it is deemed to be waived by defendant. R. 3:5-7(f); see State v. Martin, 87 N.J. 561, 566 (1981) (failure to make a timely motion results in a waiver of a defendant's right to object to the evidence's admission at trial); State v. Jenkins, 221 N.J. Super. 286 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989).

The point raised in defendant's pro se brief, that the verdict was against the weight of the evidence, is likewise unpersuasive and does not merit any further discussion in this opinion. R. 2:11-3(e)(2). We only note our standard of review in this regard is defined by R. 2:10-1, which requires that the trial judge's ruling shall not be disturbed "unless it clearly appears that there was a miscarriage of justice under the law." Our recitation of the evidence amply demonstrates that it was sufficient to have allowed the jury to find defendant guilty beyond a reasonable doubt.

Lastly, defendant argues the sentence imposed was excessive. When reviewing a trial court's sentencing decision, we "are bound to affirm a sentence, even if [we] would have arrived at a different result, 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. Natale, 184 N.J. 458, 489 (2005) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We will reverse only if the trial court's "application of the guidelines to the facts of the case makes the sentence clearly unreasonable [so as] to shock the judicial conscience." Ibid. (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). Here, defendant argues his sentence should be vacated and remanded because the trial court engaged in improper judicial fact finding, and otherwise improperly balanced the aggravating and mitigating factors contained in N.J.S.A. 2C:44-1a.

In sentencing defendant, the judge found aggravating factors three, six, eight, and nine, and found no mitigating factors. The record below amply supports the trial judge's findings since defendant's prior record included nine adult arrests, a conviction as a juvenile for kidnapping that resulted in a fifteen year adult sentence to State prison, a Federal sentence for conspiracy to distribute narcotics, and subsequent violation of Federal parole. The judge did not utilize any presumptive term as a starting point in determining the proper sentence, and, therefore, did not run afoul of Natale by finding aggravating factor eight. The imposition of a discretionary period of parole ineligibility pursuant to N.J.S.A. 2C:43-6b was not a mistaken exercise of the judge's discretion. State v. Kruse, 105 N.J. 354, 359 (1987).

Affirmed.

Melchiore knew defendant because he supervised him in "boot camp" during one of defendant's prior incarcerations. The judge ordered the officer's testimony to be "sanitized," and before the jury, Melchiore simply claimed to have known defendant from "prior casual contact."

N.J.S.A. 2C:44-1a(3)("[t]he risk that the defendant will commit another offense"); (6)("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); (8)("[t]he defendant committed the offense against a police or other law enforcement officer . . . acting in the performance of his duties while in uniform or exhibiting evidence of his authority . . . ."); (9)("[t]he need for deterring the defendant and others from violating the law").

(continued)

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A-1689-06T4

November 1, 2007