STATE OF NEW JERSEY v. DAZHON GODWIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2383-06T42383-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAZHON GODWIN,

Defendant-Appellant.

____________________________________________________________

 

Submitted November 18, 2008 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

05-04-0480.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Monique Moyse,

Designated Counsel, of counsel and on

the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Steven E. Braun,

Chief Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

In a two-count indictment, defendant was charged with second-degree eluding on August 12, 2004, contrary to N.J.S.A. 2C:29-2(b) (count one), and fourth-degree possession of a prohibited weapon, a switchblade knife, on August 19, 2004, contrary to N.J.S.A. 2C:39-3(e) (count two). Defendant was also charged with nine motor vehicle offenses on August 12, 2004, and four motor vehicle offenses on August 19, 2004.

During the jury trial on the indictable offenses, the court and counsel discussed how the motor vehicle charges would be handled. Citing State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), the court determined that all of the charges would "be tried in one forum," with the jury rendering a verdict on the indictable offenses and the judge deciding whether defendant was guilty of the motor vehicle charges. On February 21, 2006, the jury acquitted defendant of eluding, but convicted him of fourth-degree possession of a weapon. Thereafter, defendant moved to dismiss the motor vehicle summonses alleging violations on August 12, 2004, based on double jeopardy or collateral estoppel principles. On June 2, 2006, the trial court denied the motion, finding that "defendant was the person who operated the vehicle" on August 12, 2004, and the court found defendant guilty of each motor vehicle offense except the unsafe vehicle charge. On October 6, 2006, defendant was sentenced to six-months probation on count two, and fines were imposed for the motor vehicle violations.

On appeal, defendant presents the following arguments:

POINT I

MR. GODWIN'S prosecution and conviction on seven motor vehicle offenses were barred by new jersey prohibitions against double jeopardy, n.j. const. art. I, para. 11.

POINT II

the trial court committed reversible error by denying mr. godwin's motion to suppress the knife.

POINT III

The prosecutor's rejection of Mr. Godwin's application to the pretrial intervention program was a patent and gross abuse of discretion because it was based on inappropriate factors and was a clear error of judgment.

Point IV

Mr. Godwin's seven motor vehicle convictions must be set aside because they were not properly joined under R. 3:15-3.

With the exception of Point I, defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's conviction on count two, but we reverse defendant's motor vehicle convictions for the seven moving traffic violations on August 12, 2004, that defendant challenges on appeal.

On August 12, 2004, Passaic Police Department Detective Brian Henderson was stationed in his marked police cruiser near the intersection of Gregory and Pennington Avenues in Passaic, New Jersey. At approximately 2:15 p.m., Detective Henderson observed a blue, two-door Acura occupied by only a male driver bearing a New Jersey license plate. Although the driver did not proceed through the stop sign, Henderson decided to run the license plate number through his mobile data terminal. He received information a few seconds later showing the license plate belonged to a black, two-door 1988 Mazda RX7 with an expired registration. Thereafter, Henderson pulled up behind the vehicle on Gregory Avenue near the intersection of River Drive, and activated his emergency lights along with a siren burst to notify the driver of the car to pull over. The Acura did not stop. Instead, it made a left turn onto River Drive. After Henderson activated his siren again, the driver of the Acura glanced back at the police vehicle then accelerated onto Route 21 northbound.

Henderson pursued the Acura on Route 21 with his emergency lights and siren running continuously. The Acura reached speeds of approximately eighty miles per hour, weaved in and out of traffic, cut off several automobiles, followed others too closely, and used the shoulder for passing. Traffic increased as the vehicles approached the terminus of Route 21, where two lanes merge into one. Eventually, the vehicles became stuck in traffic and Henderson exited his patrol car and ran toward the Acura with his gun drawn. Henderson testified that as he was approaching the Acura he kept his eyes focused on the driver's face and hands. When Henderson was "about three feet from the front bumper" he yelled at the driver "to stop and get out of the car," but the driver locked the passenger door, shifted the car into reverse, backed up, and drove off. Henderson returned to his vehicle and was directed "to terminate the pursuit." He then returned to police headquarters to write a report.

Seven days later on August 19, 2004, at about 2:25 p.m., Henderson was patrolling near Main Avenue when he saw the same blue Acura that evaded his pursuit a week earlier waiting at a stop sign. The Acura was occupied by a male driver and a female passenger. Henderson testified that he was able to identify the driver as the same person who was driving the car on August 12, 2004.

Henderson was able to follow the Acura until it stopped and parked in a bus stop on Main Avenue. Henderson parked behind the Acura, exited his vehicle, and caught up with defendant as he was walking toward a liquor store. Detective Henderson placed defendant under arrest and charged him with eluding on August 12, 2004. The Acura still bore the same fictitious license plates as it did on August 12, 2004.

A search incident to defendant's arrest revealed a small switchblade knife in defendant's front pocket that was approximately 1.5 to 2.5 inches long with a loop at one end that could be used as a keychain, and defendant was charged with possession of a prohibited weapon. Defendant was also charged with various motor vehicle offenses.

At trial, Henderson testified that defendant was the driver of the Acura involved in the high-speed chase on August 12, 2004. In a written report that was prepared the same day, Henderson referred to the driver as a "Hispanic male." However, in a report dated August 19, 2004, following defendant's arrest, Henderson stated that defendant was "African-American." Defendant is an African-American male.

Defendant's girlfriend, Maria Francisco, the passenger in the Acura on August 19, 2004, testified for the defense as an alibi witness. Francisco stated that on August 12, 2004, at approximately 2:15 p.m., she and defendant were at defendant's cousin's home in Paterson watching a movie. In addition, Francisco testified that defendant purchased the Acura on August 19, 2004, and that he was not in possession of the car prior to the date of his arrest. Francisco further testified that when defendant picked her up from her home on August 19, 2004, the for sale sign was still in the car.

"'Collateral estoppel' is an awkward phrase, but it . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469, 475 (1970).

The constitutional guarantee of double jeopardy bars the State from subjecting a defendant to the hazards of a trial and possible conviction more than once for the same alleged offense. The rule of collateral estoppel directs that once an issue of ultimate fact has been litigated and determined by a valid and final judgment, the issue cannot again be relitigated in a subsequent proceeding between the same parties.
 
[State v. Yormark, 117 N.J. Super. 315, 333 (App. Div. 1971), certif. denied, 60 N.J. 138, cert. denied, Perwin v. N.J., 409 U.S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109 (1972); accord, State v. Kelly, 406 N.J. Super. 332, 344 (App. Div. 2009).]

More recently, this court has noted that the party asserting collateral estoppel to foreclose re-litigation of an issue must show that five elements are present:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

 
[State v. Brown, 394 N.J. Super. 492, 502 (App. Div. 2007); accord, Kelly, supra, 406 N.J. Super. at 344.]

In the context of a criminal proceeding, the United States Supreme Court has emphasized that "collateral estoppel . . . is not to be applied with [a] hypertechnical and archaic approach . . . but with realism and rationality. . . . The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.'" Ashe, supra, 397 U.S. at 444, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475-76 (quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 240, 92 L. Ed. 180, 184 (1948)).

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."

 
[Ibid. (quoting Sealfon, supra, 332 U.S. at 579, 68 S. Ct. at 240, 92 L. Ed. at 184).]

In Ashe, the defendant was charged with a robbery involving a group of people playing poker. Id. at 437, 90 S. Ct. at 1191, 25 L. Ed. 2d at 472. The defendant was tried for the robbery of one of the victims and found not guilty. Id. at 438-39, 90 S. Ct. at 1191, 25 L. Ed. 2d at 472. At trial, identity was a critical issue. Id. at 446, 90 S. Ct. 1195, 25 L. Ed. 2d at 477. In a subsequent prosecution, defendant was tried for the robbery of another of the poker players and found guilty. Id. at 439-40, 90 S. Ct. at 1192, 25 L. Ed. 2d at 472-73. The Supreme Court determined that the second prosecution violated collateral estoppel. Id. at 445, 90 S. Ct. at 1195, 25 L. Ed. 2d at 476. The court found that the only issue in dispute at the first trial was whether the defendant had been one of the robbers, and the first jury determined the defendant was not one of the robbers. Id. at 446, 90 S. Ct. at 1195, 25 L. Ed. 2d at 477. Thus, under the principle of collateral estoppel, the State could not "constitutionally hale him before a new jury to litigate that issue again." Ibid.

Based on our examination of the trial record, we conclude the motor vehicle violations that defendant challenges cannot stand based on collateral estoppel principles. Here, as in Ashe, identity was the critical issue to be resolved by the jury . The defense argued that the State "failed to prove that [defendant] was the person who drove the car" on August 12, 2004. Significantly, the State's sole witness, Detective Henderson, noted in his initial report that the driver was a "Hispanic male." However, in a subsequent report on August 19, 2004, Henderson stated that defendant was "African-American." Moreover, the defense produced an alibi witness who testified that defendant was with her watching a movie at the time of the high-speed chase on August 12, 2004, and that defendant purchased the Acura on August 19, 2004.

Based on these conflicting proofs, the only rational explanation for defendant's acquittal on the eluding charge was that the jury did not find defendant was the driver of the Acura on August 12, 2004. Under these circumstances, the trial judge was precluded from finding that defendant was the person who was driving the Acura on August 12, 2004. See Ashe, supra, 397 U.S. at 446, 90 S. Ct. at 1195-96, 25 L. Ed. 2d at 477 ("Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was not one of the robbers, the State could not present the same or different identification evidence in a second prosecution . . . in the hope that a different jury [or judge] might find that evidence more convincing.").

We affirm defendant's conviction on count two, but we reverse defendant's seven moving motor vehicle convictions for violations that occurred on August 12, 2004.

 

(1) Having fictitious license plates, contrary to N.J.S.A. 39:3-33; (2) improper lane change, contrary to N.J.S.A. 39:4-88(b); (3) reckless driving, contrary to N.J.S.A. 39:4-96; (4) careless driving, contrary to N.J.S.A. 39:4-97; (5) improper passing, contrary to N.J.S.A. 39:4-85; (6) failure to signal, contrary to N.J.S.A. 39:4-126; (7) following too closely, contrary to N.J.S.A. 39:4-89; (8) improper backing up in the street, contrary to N.J.S.A. 39:4-127; and (9) failure to wear a seat belt, contrary to N.J.S.A. 39:3-76.2f.

(1) Parked with motor vehicle running, contrary to N.J.S.A. 39:4-137; (2) unsafe vehicle, contrary to N.J.S.A. 39:3-44; (3) open alcoholic beverage in a motor vehicle, contrary to N.J.S.A. 39:4-51(a); (4) and no parking in a bus stop, contrary to Passaic Ordinance Code 295-38.

The seven moving traffic violations are: (1) reckless driving, N.J.S.A. 39:4-96; (2) careless driving, N.J.S.A. 39:4-97; (3) improper lane change, N.J.S.A. 39:4-88(b); (4) improper passing, N.J.S.A. 39:4-85; (5) failure to signal turn, N.J.S.A. 39:4-126;

(6) following too closely, N.J.S.A. 39:4-89; and (7) improper backing up in the street, N.J.S.A. 39:4-127. Because none of defendant's arguments are directed at his convictions for violations on August 19, 2004, those convictions are not affected by this opinion.

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A-2383-06T4

September 3, 2009