STATE OF NEW JERSEY v. MICHAEL A. BOWENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4964-07T44964-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. BOWENS,

Defendant-Appellant.

_________________________________________________________

 

Submitted September 22, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-10-3484.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael A. Bowens appeals from the judgment of conviction and sentence that followed a jury trial at which he was found guilty of second-degree eluding, N.J.S.A. 2C:29-2(b); third-degree receiving stolen property, N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The trial judge granted defendant's post-verdict motion for judgment notwithstanding the verdict (j.n.o.v.) as to the receiving stolen property charge. He then granted the State's motion to impose a discretionary extended term, N.J.S.A. 2C:44-3(a), and sentenced defendant to fifteen years in prison, with a seven and one-half year parole disqualifier on the eluding charge, and a concurrent eighteen-month sentence with a nine-month parole disqualifier on the resisting arrest charge.

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S EVIDENTIARY RULINGS CONCERNING THE DEFENDANT'S PRIOR CRIMINAL CONVICTIONS RESULTED IN HARMFUL ERROR.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CRIMINAL CONVICTIONS WERE ADMISSIBLE TO IMPEACH CREDIBILITY.

(1)

THE DEFENDANT'S CONVICTIONS WERE REMOTE IN TIME.

(2)

THE PRIOR CONVICTION EVIDENCE UNDULY PREJUDICED THE JURY'S ABILITY TO FAIRLY ASSESS THE DEFENDANT'S TESTIMONY.

(B)

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CRIMINAL CONVICTIONS NEED NOT BE "SANITIZED."

POINT II

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR VIOLATED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION. (NOT RAISED BELOW)

POINT III

THE TRIAL COURT'S JURY CHARGE WAS INADEQUATE AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

(A)

THE TRIAL COURT'S FAILURE TO REINSTRUCT THE JURY ON "REASONABLE DOUBT" CONSTITUTES PLAIN ERROR. (NOT RAISED BELOW)

(B)

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON "MERE PRESENCE" WAS PLAIN ERROR. (NOT RAISED BELOW)

POINT IV

ELICITING THE FACT THAT THE DEFENDANT WAS PREVIOUSLY CONVICTED OF "ROBBERY" WHEN THAT PARTICULAR CONVICTION HAD BEEN RULED INADMISSIBLE BY THE TRIAL COURT CONSTITUTED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. (NOT RAISED BELOW)

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE GUILTY VERDICTS ON COUNTS ONE AND THREE WERE AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW AND REPRESENTED A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT VI

THE 15 YEAR EXTENDED TERM SENTENCE WITH 7 1/2 YEARS OF PAROLE INELIGIBILTY IMPOSED ON THE DEFENDANT'S CONVICTION FOR ELUDING ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.

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

I.

The evidence at trial revealed that Camden police officer Sean G. Miller was on patrol in a marked police vehicle at 1:30 a.m. on May 15, 2006. While responding to a call for assistance from another officer, Miller saw a double-parked Jeep in the middle of Morton Street. Miller activated his emergency lights and siren, hoping the Jeep would pull to the side of the road. Instead, the vehicle drove away, tires screeching, at a high rate of speed. With his lights and siren still activated, Miller pursued the Jeep for two or three blocks at speeds of forty-five to fifty miles per hour in a densely-populated residential area. The Jeep was being driven in an erratic and careless manner and ultimately crashed into a parked car.

Miller saw the driver exit and run. He pursued on foot as he broadcasted a description of the actor and his clothing over his portable radio. Miller eventually lost sight of the fugitive at the end of an alleyway, but soon received a radio broadcast from a fellow officer, Sergeant Wilson, that a suspect was apprehended. Miller returned to the crash site and identified defendant, who was "[b]reathing hard" and sweating.

Defendant testified on his own behalf, claiming that he was "hanging out" in Whitman Park with others when he noticed police activity. Since outstanding warrants existed for his arrest for probation violations, defendant began to run. He was arrested by Wilson and brought back to the Jeep. Defendant denied being in the Jeep, or operating it, on the night in question.

Following summations and charge, the jury returned its verdict finding defendant guilty of all counts.

II.

(A)

The trial judge conducted a pre-trial Sands hearing. State v. Sands, 76 N.J. 127 (1978). Defendant had been convicted 1) in 1984 of robbery; 2) in 1993 of weapons possession; 3) twice in 1998, of weapons offenses and possession of CDS; and 4) in 2004 for possession of CDS. The State sought to admit all the convictions to impeach defendant if he testified. N.J.R.E. 609.

The judge concluded that the 1984 robbery conviction, having occurred twenty-three years earlier, was too remote. He permitted the State to introduce the remaining convictions because they occurred in "a series right in a row . . . ." The judge denied defendant's request to "sanitize" the remaining convictions because none was for an offense similar to those for which defendant was being tried. The judge included appropriate instructions on the use of this evidence in his final jury charge.

In Point I, defendant contends the judge erred in both permitting the use of his prior convictions for impeachment purposes, and not sanitizing them before their admission. We disagree.

N.J.R.E. 609 provides that "[f]or the purpose of affecting the credibility of any witness, the witness'[s] conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Whether to admit evidence of a prior conviction "rests with the sound discretion of the trial judge." Sands, supra, 76 N.J. at 144. Sanitization of prior convictions is appropriate when "a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged[.]" State v. Brunson, 132 N.J. 377, 391 (1993). In such circumstances, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." Ibid. Recently, however, the Court made clear that the trial judge's authority to sanitize a prior conviction is not limited only to circumstances where the earlier crime was the same or similar to that for which a defendant was being tried. State v. Hamilton, 193 N.J. 255, 268-69 (2008). The judge may balance the competing interests of the parties, and employ the "sanitization remedy, as part of [his] discretionary authority to control undue prejudice[.]" Id. at 269.

Defendant initially argues that no evidence of his prior convictions was admissible because they were too remote. That contention is answered by the following passage from Sands:

Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Sands, supra, 76 N.J. at 144-45.]

Here, the judge excluded defendant's 1984 robbery conviction, but admitted evidence of the remaining convictions. This was not a mistaken exercise of his discretion because, as he so found, the convictions were for a series of crimes commencing in 1993 and running continuously thereafter throughout the following decade.

We also find no reason to reverse based upon the judge's exercise of his sound discretion in not requiring sanitization of the prior convictions. First, Hamilton was not decided until well after defendant's trial, and there is no indication in the Court's opinion that its holding should be applied retroactively. Second, and more importantly, the Court in Hamilton did not require sanitization in every case. Instead, recognizing that "obvious prejudice" accompanies all prior conviction evidence, Hamilton, supra, 193 N.J. 256, the Court permitted sanitization when necessary "to control undue prejudice." Id. at 269. Defendant has failed to demonstrate that the unsanitized evidence of these convictions, none of which bore any resemblance to the charges at trial, unduly prejudiced him, particularly in light of the judge's instructions which clearly focused the jury on the permissible use of the evidence.

(B)

Defendant's second point concerns a brief portion of his cross-examination by the prosecutor. As noted, defendant claimed that he was in the park "hanging out" with four or five other people. When questioned, defendant testified as to the first names of two of those people. However, he claimed he only knew the others "by face." Without objection, the prosecutor asked if defendant "ha[d] addresses or contact information for any of the[] people." Defendant responded, "I don't know it by heart." He then claimed that he had tried to have someone contact one of the witnesses "for my lawyer to get in touch with." Defendant argues that by posing this single question, the prosecutor violated his Fifth Amendment right against self-incrimination and improperly shifted the burden of proof to defendant. We disagree.

Since there was no objection below, we review the argument under the plain error standard, i.e., was the exchange "clearly capable of producing an unjust result[.]" R. 2:10-2. Here, the prosecutor's question was designed to test defendant's credibility regarding his claim that he was "hanging out" with people in the park, not driving the Jeep. It in no way implicated defendant's silence at the time of his arrest or thereafter. Having offered his own testimony, defendant freely chose not to remain silent any longer. See State v. Tucker, 190 N.J. 183, 189 (2007) ("As to the subject matter of his statements, the defendant has not remained silent at all."). There was nothing improper about the cross-examination.

We find the balance of defendant's argument on this point to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).

III.

We turn to the challenges defendant raises to the jury instructions. Since neither argument was raised below, we consider whether the claimed errors amount to plain error. R. 2:10-2.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).

The judge properly instructed the jury on reasonable doubt and the State's burden of proof during his final charge. Defendant does not contend otherwise. However, the State did not call Wilson as a witness, and during deliberations, the jury sent out a note asking why Wilson had not testified. After conferring with counsel, the judge indicated that he was "going to basically tell the jury that they have (sic) to decide the case that was -- based on what was presented to them and they shouldn't speculate one way or the other as to why a witness was or wasn't called." Defense counsel did not object. The judge then told the jurors not to "speculate" about Wilson's absence, and to decide the case solely "on what was presented here in the courtroom." Defendant argues that the judge should have included in his supplemental charge the previously-given instructions on reasonable doubt. We find no error.

The judge thoroughly told the jury in his initial charge that a reasonable doubt could exist based upon the evidence or the lack of evidence. He fully explained that it was the State's obligation to prove the case beyond a reasonable doubt, and that defendant bore no burden of proof in this regard. We are firmly convinced that the jury heeded these instructions, and that the failure to provide the "reasonable doubt" charge a second time could not possibly have led the jury astray.

Defendant also argues that the judge should have sua sponte instructed that his "mere presence" in the area was not enough to infer his guilt. He relies upon State v. Shipp, 216 N.J. Super. 662 (App. Div. 1987). There we held the the defendant's mere presence, without more, in a vehicle where a passenger was carrying drugs did not necessitate the conclusion "that he was sharing in the intentional control and dominion over the contraband material." Id. at 666.

Shipp has no application to the case at hand. Defendant was not charged with an offense where "the necessary elements of possession" were at issue. State v. Montesano, 298 N.J. Super. 597, 615 (App. Div.), certif. denied, 150 N.J. 27 (1997). Moreover, the State's proofs, if believed, essentially demonstrated that defendant was not merely present at the scene of the Jeep's crash; instead, he was the person driving the vehicle who ran from the scene. There was no proof that a second person was in the Jeep at the time. Thus, defendant's testimony that he was at a nearby, though different location, than the scene of the crime did not require the "mere presence" charge he now claims was necessary.

IV.

The balance of defendant's arguments requires only brief comment.

First, defendant claims that the jury verdict was against the weight of the evidence and his motion for j.n.o.v. or a new trial should have been granted as to all counts. A "judge . . . may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. "The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid. "A motion for a new trial is addressed to the" trial judge's sound discretion and his decision will not be lightly disturbed upon our review. State v. Artis, 36 N.J. 538, 541 (1962) (citing State v. Smith, 29 N.J. 561, 573 (1959)); State v. Henries, 306 N.J. Super. 512, 529-30 (App. Div. 1997).

Here, defendant contends the evidence that he knowingly eluded Miller was insufficient because the officer first activated his lights and siren only so the Jeep would pull to the side. Of course, this argument overlooks the evidence that defendant, instead of pulling over, drove the vehicle in an erratic manner, through a densely-populated residential area, while being pursued by Miller with his lights and siren activated for several blocks. We find no merit to the argument. Defendant makes no specific claim as to the insufficiency of the proofs regarding his conviction for resisting arrest; therefore, we do not consider the issue.

Defendant contends his sentence was manifestly excessive. In a single sentence in his brief, he argues that "the aggravating factors present cannot support th[e] sentence." We disagree.

Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience[]" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

Based upon his prior convictions, defendant was eligible for an extended term, and he does not contend otherwise. Thus, the range of possible sentences "start[ed] at the minimum of the ordinary-term range and end[ed] at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). The judge determined that aggravating factors three, six and nine existed, N.J.S.A. 2C:44-1(a) (3), (6), and (9), and found no mitigating factors, N.J.S.A. 2C:44-1(b). These findings are clearly supported by the record, as is the judge's determination that the imposition of a period of parole ineligibility was warranted.

Lastly, defendant's claim that his trial counsel was ineffective is twofold. First, he contends that his lawyer's inadvertent reference during direct examination to his robbery conviction, which had been excluded from evidence by the judge as remote, demonstrates ineffective assistance. Second, defendant asserted at sentencing, via a letter sent to the judge, that he preferred not to testify in his own defense at trial, but was "convinced" by counsel to do otherwise. He alleged that his attorney provided this advice without informing him that evidence of his prior convictions would be admissible.

Although counsel responded to defendant's claim at the sentencing hearing, and although the judge concluded it was meritless, we defer consideration of the issue at this time. State v. Preciose, 129 N.J. 451, 460 (1992). Defendant may renew the argument, if he chooses to do so, in an appropriate petition seeking post-conviction relief.

 
Affirmed.

Subsequent investigation revealed the Jeep to have been reported stolen. Since the trial judge ultimately granted defendant's motion, we need not detail the proofs in this regard.

At sentencing, and during consideration of defendant's motion for a new trial or j.n.o.v., the judge mistakenly stated that he had sanitized the prior convictions. We view the comment as irrelevant to our consideration of the issue on appeal.

(continued)

(continued)

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A-4964-07T4

October 8, 2009