STATE OF NEW JERSEY v. MAYHEW D. WATSON, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4142-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAYHEW D. WATSON, JR.,

Defendant-Appellant.

October 26, 2012

Submitted September 4, 2012 - Decided

Before Judges Alvarez, Nugent and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-05-0312.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Paul H. Heinzel, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Mayhew D. Watson, Jr. was convicted of fourth-degree obstruction, N.J.S.A. 2C:29-1 (count one), third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2), as a lesser-included offense of second-degree eluding, N.J.S.A. 2C:29-2(b) (count five). The jury acquitted defendant of two other counts, third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count three), and third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count four). A sixth count charging defendant with fourth-degree tampering, N.J.S.A. 2C:28-6(1), was dismissed on defendant's application at the close of the State's case. On January 18, 2011, he was sentenced to three years' imprisonment on count two, with concurrent 364-day terms of county jail on counts one and five. Defendant appeals. Save for the vacatur of the sentence on count one, which the State concedes merges with count two, we affirm the judgment of conviction.

The incident which resulted in the indictment began on March 26, 2009, at approximately 11:00 p.m., while Penns Grove Corporal Joseph Schultz was on duty in a marked patrol car. He observed defendant's vehicle swerve across the center line as it traveled west on Main Street. Corporal Schultz followed the vehicle and when it turned in an intersection, he noticed a non-functioning tail light. Shortly thereafter, the officer activated his overhead lights to signal defendant to pull over.

In response, defendant's vehicle came to a sudden stop in the middle of the roadway, proceeded forward briefly, and abruptly stopped a second time. Corporal Schultz said he found the manner of operation "odd[,]" it got his "attention[,]" and he became "alarm[ed.]" Because he considered the vehicle's "jerking motion" not "normal[,]" he radioed for backup.

While awaiting the arrival of Patrolman Joseph DiCarolis, Corporal Schultz approached the car. He recognized defendant, whom he knew from contacts in the "small community" of Penns Grove. Corporal Schultz asked defendant "what was going on, what he was doing." Defendant responded that everything was fine, but the officer nonetheless opened the driver's side door and asked him to step out of the car; the engine was still running. Corporal Schultz told defendant to place his hands on top of the car so he could pat him down. As the officer began to do so, defendant repeatedly dropped his right hand, causing Corporal Schultz to instruct defendant to wait at the rear of his vehicle. Meanwhile, the officer saw a spoon with a white substance on it on the vehicle's passenger floor. Corporal Schultz believed it to be drug paraphernalia used "for cooking cocaine." He saw defendant approaching him and ordered him to return to the rear of his vehicle. When Corporal Schultz reached for the spoon, defendant "continued to kind of come towards [him,]" causing him to direct Officer DiCarolis, who had arrived, to arrest defendant.

Defendant struggled as the officers tried to handcuff him, although Corporal Schultz was able to place the handcuffs on one wrist. After warning him, Officer DiCarolis sprayed defendant with mace, which according to Corporal Schultz "didn't even seem to [faze] him a bit." When the officers attempted to put defendant on the ground, defendant wriggled away and ran to the driver's seat of his vehicle. Officer DiCarolis followed, tugging at defendant's arm, and Corporal Schultz punched him, which "didn't [faze] [defendant]. It didn't seem to bother him at all." Officer DiCarolis then took his baton out and struck defendant on the wrist, with no visible effect. In fact, defendant yelled "is that all you got" in response and drove away. Meanwhile, the Penns Grove dispatcher notified the officers, who had returned to their vehicles to give chase, that three additional officers from Carneys Point had been requested to provide assistance.

Shortly after, defendant appeared at the police station and went inside. He was shirtless and had a handcuff dangling from his left arm. He asked the dispatcher, Regina Vazquez, "where the f--- [are] the officers at, tell them to come here, I'm going to f--- them up." Vazquez immediately radioed the officers to return to the station, located only two blocks from the location of the stop. When defendant saw the officers arrive, he walked towards Corporal Schultz's vehicle and continued to fight as the five officers struggled to subdue him. They were eventually able to do so in the entryway of the station, although he was maced a second time in the process.

On appeal, defendant raises the following issues:

POINT I: THE MOTION JUDGE ERRED BY FAILING TO GRANT DEFENDANT'S MOTION[] TO SUPPRESS AND/OR DISMISS.

A. THE MOTOR VEHICLE STOP

B. SWERVING

C. EXITING THE VEHICLE

POINT II: THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT FOR RESISTING ARREST BECAUSE [OF] THE LACK OF INTENT; THE CONVICTION FOR THIRD- AND FOURTH-DEGREE RESISTING ARREST [SHOULD] BE REVERSED.

POINT III: THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT FOR OBSTRUCTION BECAUSE [OF] THE LACK OF INTENT; THE CONVICTION FOR FOURTH-DEGREE OBSTRUCTION [SHOULD] BE REVERSED.

POINT IV: THE COURT ERRED IN FAILING TO CHARGE SELF-DEFENSE JUSTIFICATION FOR RESISTING ARREST, THE OMISSION OF WHICH WARRANTS REVERSAL OF DEFENDANT'S CONVICTION.

POINT V: THE CONVICTION FOR OBSTRUCTION SHOULD MERGE WITH THE CONVICTION FOR [RESISTING] ARREST.

POINT VI: THE SENTENCING COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.

I

Defendant contends that the trial judge erred by denying the motion to suppress and/or dismiss the charges because Corporal Schultz's observation of his vehicle swerving across the center line, and the missing tail light, did not constitute reasonable and articulable suspicion justifying the stop. He also contends that his removal from the vehicle was unlawful.

We defer to the factual findings of a trial judge made during a motion to suppress. State v. Elders, 192 N.J. 224, 243 (2007). Such findings should not be disturbed unless "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We further note that the operator of a motor vehicle is expected to maintain his or her vehicle in a single lane "unless it is not feasible to do so." State v. Regis, 208 N.J. 439, 448 (2011). The swerving need not be "demonstrated to be a danger to other drivers." Ibid.

Additionally, regardless of whether the tail light was enumerated in N.J.S.A. 39:3-61(a) as essential, the officer nonetheless had the right to stop the vehicle and inform the driver of the defect. See State v. Forgione, 265 N.J. Super. 63, 67-68 (App. Div. 1993). Police officers are expected, in fulfilling their community caretaking function, to stop vehicles they observe being improperly operated, and having a problem with lights, to ensure that there is nothing amiss with the driver or the car or both. State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 2002).

The judge found Corporal Schultz to be credible. Therefore the officer's testimony that he observed defendant's car swerving across a center line, tail light missing, at approximately 11:00 p.m. amounted to reasonable and articulable suspicion sufficient for a stop. State v. Golotta, 178 N.J. 205, 213 (2003) ("[t]he reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause" standard and only requires "some minimal level of objective justification for making the stop." (citations omitted)). Defendant's manner of operation constituted ample reasonable and articulable suspicion. The judge did not err in denying the motion to suppress or failing to dismiss the charges.

Defendant also contends that Corporal Schultz unlawfully opened his car door and required him to exit his vehicle. It is permissible, however, for a police officer to open a vehicle door during a traffic stop and order the occupants out of the car when "the officer has articulable facts that would warrant heightened caution." State v. Matthews, 330 N.J. Super. 1, 5-6 (App. Div. 2000). Corporal Schultz said his observations regarding defendant's driving caused him heightened concern regarding the condition of the operator. That Officer Schultz called for backup, and immediately after stopping defendant attempted to pat him down, corroborates his expressed "heightened caution." Therefore, it was lawful for the officer to open the car door and order defendant out during the stop. See State v. Smith, 134 N.J. 599, 611 (1994).

Where a defendant is able to demonstrate that a stop was improper, it nonetheless does not excuse or exempt him from prosecution for offenses committed against officers in the aftermath. Defendants are not entitled "to resist the searches or . . . subsequent efforts to place them under arrest." State v. Casimono, 250 N.J. Super. 173, 184 (App. Div. 1991), certif. denied, 127 N.J. 558 (1992). Because such conduct "create[s] a high potential for causing injury to the officers, the need to protect the [officers'] safety outweigh[s] whatever marginal deterrent to police misconduct might be provided by immunizing defendant's actions from criminal liability." Ibid.

All of the charged offenses occurred after the initial stop. Even if the stop had been unlawful, which it was not, defendant is still legally accountable for his subsequent conduct.

II

We will briefly address defendant's next three points, beginning with the assertion that there was insufficient evidence to convict him for resisting arrest because the State did not prove intent. Under N.J.S.A. 2C:29-2(a)(3)(a), a defendant must "purposely prevent[] or attempt[] to prevent a law enforcement officer from effecting an arrest," and in the process a defendant must "use[] or threaten[] to use physical force or violence against the law enforcement officer or another." The definition of physical force merely requires "dynamic power showing great strength, power, intensity, fury, and destructiveness." State v. Brannon, 178 N.J. 500, 510 (2004).

After defendant was stopped, he actively resisted the officers' efforts to pat him down, arrest him, handcuff him, and he actually drove away. At the police station, it took five officers to subdue and handcuff defendant. No further discussion of this point is required; defendant's conduct clearly demonstrated the intent to resist arrest.

The State also presented ample proof on the obstruction count, including proof of intent. Defendant argues that he did not obstruct because he appeared at the police station two blocks away, "effectively turn[ing] himself in." This is, to say the least, not a fair characterization of the record. That defendant drove himself the two blocks to the police station, at which time the suspicious-looking spoon on the floor of his car was gone, does not negate the charge of obstruction. This argument also lacks merit.

Furthermore, we see no error in the trial judge's failure to sua sponte charge the jury as to self-defense because there was no evidence that the officers used excessive force. This no doubt explains the reason the charge was not requested by defense counsel. Defendant nonetheless urges us to find the omission was plain error. See R. 1:7-2; R. 2:10-2.

It is well-established that a trial judge must correctly charge the jury as to affirmative defenses supported by the evidence. State v. Walker, 203 N.J. 73, 89 (2010). But a defendant must identify at least some evidence in the record, even if "slight," regarding the defense before a judge is required to do so. State v. Singleton, 418 N.J. Super. 177, 203 (App. Div. 2011). It is not error to fail to charge a defense which is unsupported by the record. State v. Josephs, 174 N.J. 44, 102-04 (2002). Since the record does not "clearly indicate[]" the need to charge the jury as to self-defense, the trial judge did not err in failing to give the instruction. See Walker, supra, 203 N.J. at 86-87. See also State v. Denofa, 187 N.J. 24, 41 (2006). Defendant's appearance at the station so he could continue to fight, requiring five officers to subdue him, does not establish excessive force. Nothing in the record established a basis for a self-defense instruction.

III

Defendant argues that the court imposed an excessive sentence because his conduct demonstrated substantial grounds tending to excuse or justify it but failing to establish a defense, in other words, demonstrating mitigating factor four, N.J.S.A. 2C:44-1(b)(4). Contrary to the assertion, the record does not establish any circumstances which tended to excuse or justify defendant's conduct. The court did not err in failing to find this mitigating factor.

Additionally, defendant urges us to find mitigating factor eleven, as his wife was pregnant when he was sentenced to state prison. See N.J.S.A. 2C:44-1(b)(11). Defendant's loss to his family is the same as that suffered by every family whose loved ones are sentenced to state prison. This circumstance alone does not warrant a finding of mitigating factor eleven.

The record did support the court's finding of aggravating factor three, the risk defendant would commit another offense, based on defendant's eleven contacts with the system from 1994 through 2011. See N.J.S.A. 2C:44-1(a)(3). Defendant was previously convicted of three indictable offenses; therefore the court's finding of aggravating factor six was also supported by the record. See N.J.S.A. 2C:44-1(a)(6).

This was defendant's first prison sentence despite his prior criminal history. One could thereby conclude that defendant's prior probationary sentences had not deterred him from criminal conduct; thus deterrence was an individualized consideration. See N.J.S.A. 2C:44-1(a)(9).

A trial court's sentencing decision will not be disturbed on appeal so long as it follows applicable statutory guidelines and is based on findings supported by sufficient credible evidence in the record. State v. Natale, 184 N.J. 458, 489 (2005). Otherwise, a sentence will be reversed only if it "shocks the judicial conscience." State v. O'Donnell, 117 N.J. 210, 215-16 (1989); see also State v. Roth, 95 N.J. 334, 365 (1984). Here the court sentenced defendant to the lowest term possible within the permissible sentencing range despite the presence of three aggravating and no mitigating factors. The sentence complies with applicable statutory guidelines, was based on sufficient, credible evidence in the record, and does not shock our conscience.

Affirmed, except for a remand for correction of the judgment of conviction to reflect the merger of count one into count two.