STATE OF NEW JERSEY v. DEVOE R. MCBRIDE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3855-05T43855-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEVOE R. MCBRIDE,

Defendant-Appellant.

_____________________________________________________________

 

Submitted September 18, 2007 - Decided

Before Judges Coburn and Chambers.

On appeal from the Superior Court of New Jersey,

Law Division, Cape May County, 02-12-0808.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated Counsel,

on the brief).

Robert L. Taylor, Cape May County Prosecutor,

attorney for respondent (J. Vincent Molitor,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After losing his motion to dismiss the indictment, defendant was tried before a jury and found guilty of second degree eluding, N.J.S.A. 2C:29-2(b). The judge granted the State's motion to impose a discretionary extended term, and then sentenced defendant to imprisonment for ten years with five years of parole ineligibility. We affirm the conviction and remand for re-sentencing.

On June 11, 2002, at about 9:15 p.m., Lieutenant Chad Callahan of the Ocean County Police Department saw defendant driving an Acura automobile. Although it was night, the area was well-lit by streetlights and light coming from stores. Callahan testified that he recognized defendant because he had been in contact with him hundreds of times. Because Callahan knew that defendant's driver's license was suspended, he followed him, noting that he failed to stop at a stop sign and was driving fifty miles per hour in a twenty-miles per hour zone. Callahan activated his police lights and siren, and defendant pulled to a stop. Callahan saw no one else in the car. Callahan walked up to the driver's side of defendant's automobile, and defendant said, "What's up Chad?" Callahan replied, "Mr. McBride, Devoe, turn your 'f'king' car off." Instead of doing as he was told, defendant drove away at a high rate of speed.

During the chase, defendant almost hit another motor vehicle, then turned into a narrow alleyway, turned off the automobile's lights, made a turn back on the street, and drove through several stop signs. Callahan stopped his pursuit because of safety concerns. Another officer, Michael Gray, who had joined the effort to arrest defendant, saw defendant standing next to his automobile and watched as he ran into his home on West Avenue.

A third officer, David Hall, who also had "numerous contacts" with defendant, and identified him in court, testified that he saw defendant look out of the window on the second floor of the West Avenue house. Callahan and Gray went upstairs and placed defendant under arrest.

Defendant's uncle, Julius Adams, testified for the defendant, indicating that he was the driver of the Acura on the night in question, and that defendant was in a passenger seat. Adams's testimony contained many inconsistencies, but there is no need to detail them here. Nor, since defendant does not contend the verdict was against the weight of the evidence, need we describe the testimony of other defense witnesses who attempted to corroborate Adams's story.

On appeal, defendant offers the following arguments:

POINT I

SINCE THE PROSECUTOR'S TRIAL STRATEGY TO AVOID A N.J.R.E. 404(B) HEARING DEPRIVED THE TRIAL COURT OF AN OPPORTUNITY TO CONDUCT A N.J.R.E. 403 PROBATIVE VALUE/PREJUDICE BALANCING TEST, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO PRECLUDE TESTIMONY CONCERNING LIEUTENANT CALLAHAN'S FAMILIARITY WITH THE DEFENDANT.

POINT II

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (RAISED IN PART BELOW).

(A)

THE PROSECUTOR IMPROPERLY REFERRED TO THE "DEFENDANT'S CRIMINAL HISTORY."

(B)

THE PROSECUTOR IMPROPERLY ARGUED THAT THE DEFENSE PRESENTED TAILORED TESTIMONY AT TRIAL.

(C)

THE PROSECUTOR IMPROPERLY MALIGNED THE DEFENSE AND DEFENSE COUNSEL.

(D)

THE PROSECUTOR IMPROPERLY EXPRESSED HIS OPINION AS TO THE GUILT OF THE DEFENDANT.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE IT APPLIED AN ERRONEOUS LEGAL STANDARD.

POINT IV

THE 10 YEAR EXTENDED TERM SENTENCE WITH 5 YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTION FOR ELUDING WAS MANIFESTLY EXCESSIVE, REPRESENTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION, AND VIOLATED STATE V. NATALE AND STATE V. PIERCE.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.

(B)

IMPOSITION OF A BASE CUSTODIAL TERM OF 10 YEARS VIOLATED THE DEFENDANT'S RIGHTS UNDER STATE V. NATALE AND STATE V. PIERCE.

(C)

THE TRIAL COURT FAILED TO ADEQUATELY ARTICULATE ITS REASONS FR IMPOSING A 5 YEAR PERIOD OF PAROLE INELIGIBILITY.

Because defendant's discretionary extended sentence was imposed before State v. Pierce, 188 N.J. 155 (2006), the judge considered himself bound to impose a base term of ten years. Under Pierce, once a judge determines that a discretionary extended term is appropriate, the range of that sentence extends from the minimum ordinary range to the maximum extended term. Id. at 169. Since this case is on direct appeal, defendant is entitled to re-sentencing so that the judge may consider whether the base term should be less than ten years. Ibid. Apart from this required remand, after carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add the following comments.

Respecting defendant's first point, we note that the only substantial issue in this case was identification, and the critical testimony in that regard came from Lieutenant Callahan.

The evidence indicating that Callahan had hundreds of street contacts with defendant was highly relevant to the identification. Relevant evidence must be admitted unless its probative value is outweighed by the resulting prejudice. State v. Carter, 91 N.J. 86, 106 (1982). Whether undue prejudice is present is generally left to the sound discretion of the judge. Ibid. Although defendant argues that Callahan's testimony prejudicially implied that he had a criminal record, in fact Callahan neither said nor intimated that. Rather, his testimony suggested that the relationship was collegial, merely involving conversations in a neighborhood to which Callahan had been then assigned. The judge carefully considered this issue on at least two occasions, during which he provided firm and clear instructions so that the witness's testimony would include no negative material. The witness stayed well within the judge's strictures, and we perceive no basis for reversal on this point.

Respecting defendant's second point, we note that when the prosecutor mentioned that "a defendant's criminal history is not dispositive of whether or not they can tell the truth," he was referring to the criminal record, not of this defendant, but of his witness, Julius Adams. Thus, there was no error. Furthermore, there was no objection below, and we are satisfied that the remark certainly did not meet the plain error standard. R. 2:10-2.

The case on which defendant relies, State v. Daniels, 182 N.J. 80, 98 (2004), for his claim that the prosecutor accused the defense of presenting "tailored testimony", involved a defendant being charged with tailoring his testimony, and therefore, is inapplicable. Furthermore, the prosecutor's remark did not assert tailoring by the defense. And, once again, the objection does not satisfy the plain error standard.

While discussing another defense witness, the prosecutor argued that he had lied about the occurrence of a barbecue. Without having objected below, defendant now argues that the comment was an inappropriate attack on defense counsel. The record shows that the prosecutor had done nothing more than call the witness's credibility into question, which of course he is entitled to do. We perceive no error, and certainly no plain error.

Finally, defendant, again without the benefit of a timely objection, argues that the prosecutor prejudicially expressed a personal opinion of defendant's guilt. A prosecutor may not declare a personal belief that a defendant is guilty, and that his opinion is based on evidence not presented at trial. State v. Ramseur, 106 N.J. 123, 321 (1987). But the portion of the prosecutor's summation cited by defendant violates neither of those principles. The prosecutor said this:

(BY PROSECUTOR) He's (the defendant) going to be convicted, he's going to be found guilty because of his own conduct. Because he's accountable for his own conduct. He chose to operate this vehicle when he was suspended. He didn't want to get caught operating this vehicle while he was suspended. And ultimately he tried to elude the police officer and he was unsuccessful. And now, that conduct is going to lead you folks to find him accountable for his conduct. And that is exactly what should happen in this case. The defendant is guilty beyond a reasonable doubt. You should no doubt be firmly convinced of that guilty.

That argument, fairly read, is nothing more than a suggestion to the jury that the evidence justified conviction in this case. Neither error nor plain error were committed.

Defendant's third point, which argues that the judge erred in refusing to dismiss the indictment, is based on the prosecutor's failure to present the grand jury with Adams's testimony that he was the driver and with the evidence regarding the allegedly broken driver's side window. Defendant argues that the judge's opinion reflected a misunderstanding of what defendant and the judge considered to be the controlling case. In other words, that the judge used the wrong standard. We need not reach that issue, as framed by defendant, since we are satisfied that the prosecutor did not deny the grand jury "access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." State v. Hogan, 144 N.J. 216, 236 (1996). Defendant has failed entirely to show any violation of the Hogan principles.

Affirmed and remanded for re-sentencing.

 

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A-3855-05T4

September 27, 2007