STATE OF NEW JERSEY v. MANUEL A. MERCADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL A. MERCADO, a/k/a MERCADO

ANGEL M., MERCADO MEREDO,

Defendant-Appellant.

October 10, 2013

 

Submitted October 1, 2013 Decided

 

Before Judges Alvarez and Carroll.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-06-0510.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

 

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Kimberly L. Donnelly, on the brief).

PER CURIAM

Tried by a jury, defendant Manuel Mercado appeals from his conviction of third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count one); second-degree eluding, N.J.S.A. 2C:29-2b (count four); third-degree attempted aggravated assault with a deadly weapon against Police Officer Walter Stinner, N.J.S.A. 2C:12-1b(2) (count eight); third-degree attempted aggravated assault with a deadly weapon against Police Officer Daniel Roman, N.J.S.A. 2C:12-1b(2) (count nine); third-degree attempted aggravated assault with a deadly weapon against Police Officer Michael Iannelli, N.J.S.A. 2C:12-1b(2) (count ten); fourth-degree obstruction, N.J.S.A. 2C:29-1 (count eleven); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count fourteen); and third-degree resisting arrest by use of force or attempted use of force, N.J.S.A. 2C:29-2a (count fifteen). Defendant was acquitted of the remaining counts in the indictment. Defendant also appeals his sentence of ten years imprisonment with a five-year period of parole ineligibility on count four, and five years consecutive on count one. Sentences imposed on the remaining counts were all run concurrent, so that defendant received an aggregate sentence of fifteen-years with a five-year period of parole ineligibility. The court also imposed appropriate fines, penalties, and costs, and awarded jail credits.

On appeal, defendant raises the following arguments:

POINT I

THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE THE STATE FAILED TO COMPLY WITH ITS CONTINUING DUTY TO PROVIDE DISCOVERY, DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (Partially raised below).

 

POINT II

REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR IMPROPERLY BOLSTERED POLICE WITNESS TESTIMONY DURING HER SUMMATION. (Not raised below).

 

POINT III

THE TRIAL JUDGE'S COMMENTS, INCLUDING THAT "MAYBE THAT WAS A MISTAKE" IN RESPONSE TO A JURY QUESTION ABOUT THE ALLEGED PURSUIT ISSUE JUST PRIOR TO VERDICT, USURPED THE JURY'S FACT FINDING ROLE AND DENIED THE DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Not raised below).

 

POINT IV

THE SENTENCE IMPOSED WAS IMPROPER BECAUSE THE TRIAL COURT DID NOT FOLLOW THE YARBOUGH GUIDELINES AND PROCEEDED TO SENTENCE THE DEFENDANT TO THE MAXIMUM TERM OF CONFINEMENT WITH THE MAXIMUM PERIOD OF PAROLE DISQUALIFICATION ALONG WITH THE IMPOSITION OF A CONSECUTIVE SENTENCE.

 

POINT V

THE SENTENCE IMPOSED WAS EXCESSIVE.

 

POINT VI

REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS IN THIS CASE.

 

We conclude from our examination of the record and the applicable law that defendant's arguments lack merit. Accordingly, we affirm.

I.

We briefly summarize the procedural history and the facts based on the evidence presented at trial.

Officer Christian Trejo of the Union Township Police Department testified that he was on patrol in a marked police vehicle at 2:50 p.m. on January 19, 2009, when he noticed a white Honda Civic travelling on Stuyvesant Avenue in snowy conditions with a taillight out. Trejo performed a license plate check and discovered that the Honda had been reported stolen in Jersey City earlier that day. Trejo then followed directly behind the vehicle while awaiting additional police assistance.

The Honda made a right turn onto Oakland Avenue, where Officer Juan Vargas, also in a marked patrol car, approached from the opposite direction. Trejo observed the Honda "enter the oncoming lane of traffic, cross[] the double-yellow line, and go head-on [toward] Officer Vargas." Vargas swerved away from the Honda, narrowly avoiding a collision. The Honda then accelerated rapidly to approximately fifty-five miles per hour. Trejo activated his lights and siren and advised dispatch that he was initiating a pursuit.

The chase continued onto Manor Drive, where Trejo saw an unmarked police car, operated by Detective Walter Stinner, approach from the other direction with its lights and siren on. Trejo observed the Honda cross the double-yellow line, attempting "to go head-on" with Stinner's unmarked police car, which swerved to the right and "hopp[ed] the curb in-between two parked cars in order to avoid a collision." The Honda then crossed the intersection of Mill Road and Manor Drive, causing traffic to come to "dramatic stops" in order to avoid a collision. At this point Trejo lost track of the vehicle.

Stinner confirmed Trejo's account. Stinner testified that he was on patrol in an unmarked vehicle with Officers Roman and Iannelli when they received a radio transmission about a stolen vehicle. Stinner responded to Manor Drive, where he observed Trejo pursuing the white Honda Civic. Stinner also activated his lights and siren, and the Honda crossed the double-yellow line, heading directly toward him. In order to avoid a collision, Stinner turned into an empty parking spot, hitting the curb.

Craig Costello, a plainclothes detective with the New Jersey State Police, assisted in the pursuit and came upon the Honda stopped in traffic at the intersection of Nye and Grove Avenues. He identified defendant as the operator of the Honda. Costello positioned his car in front of the Honda, and observed another police vehicle, operated by State Police Sergeant Brent Warne, approaching from behind defendant. Costello then exited his vehicle, and repeatedly advised defendant, "State Police, put the car in park." According to Costello, defendant then "quickly got the vehicle in reverse, accelerated rapidly, causing the engine to roar, and spun out in the middle of Nye Avenue, striking Sergeant Warne's vehicle." Defendant then accelerated, and made a left turn onto Coit Street in Irvington, at which point Costello too lost sight of the vehicle.

Warne testified that he also responded to the pursuit and first encountered the vehicle on Nye Avenue. As Costello pulled in front of the Honda and swung into traffic to block it, Warne similarly tried to block the vehicle from behind. As Warne began to exit his vehicle, defendant put the Honda in reverse and sideswiped his police car. Defendant continued in reverse, made a U-turn, and drove away.

Stinner testified that, after earlier swerving to avoid a collision with defendant, he continued to look for the Honda. While driving on Lyons Avenue approaching the intersection of Coit Street in Irvington, he observed defendant cut through a gas station at a high rate of speed and continue down Lyons Avenue. Stinner activated his lights and siren and pursued defendant, who now drove toward Newark.

Defendant crashed into a snow bank in Newark, but as Stinner attempted to pin his vehicle in, defendant managed to drive away onto Route 78. As Stinner pursued defendant toward Newark Airport, defendant again lost control of his vehicle on an exit ramp and crashed into a second snow bank. Defendant exited the car and fled the scene. Stinner, Roman, and Iannelli pursued defendant on foot, eventually wrestling him to the ground at gunpoint and placing him under arrest.

Jury selection initially took place on July 14 and 15, 2010. On July 15, 2010, during a pre-trial Driver1 hearing, it was discovered that the prosecution had failed to turn over radio transmissions and videos that the defense had requested in pre-trial discovery. On July 19, 2010, the judge discharged the jury and adjourned the trial to enable defendant to prepare, given the new material.

Defendant then moved to dismiss the indictment due to the State's failure to provide timely discovery, and the trial judge heard oral argument on October 7, 2010. The judge denied the motion, finding that the State's failure to disclose the videotapes and radio transmissions was not intentional, and that there was no prejudice to defendant because he was provided with a continuance.

Prior to trial, the court granted the State's motion to dismiss counts twelve and thirteen of the indictment. Trial then commenced in January 2011.2 As noted, at the conclusion of the trial the jury convicted defendant on counts one, four, eight, nine, ten, eleven, fourteen, and fifteen, and acquitted him on the remaining counts. This appeal followed.

II.

Defendant first argues that the trial judge erred in refusing to dismiss the indictment based on the delay caused by the State's failure to disclose videotapes from in-car police cameras and police radio transmissions. Under Rule 3:13-3(g), the State has a continuing duty to disclose to defense counsel whenever it "discovers additional material or witnesses previously requested or ordered subject to discovery or inspection[.]"

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

 

[Ibid.]

 

"The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court." State v. Marshall, 123 N.J.1, 134 (1991). "An adjournment or continuance is a preferred remedy where circumstances permit." State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002). Dismissal of an indictment "is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake." State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004). "This drastic remedy is inappropriate where other judicial action will protect a defendant's fair trial rights." Clark, supra, 347 N.J. Super.at 508. "Moreover, the decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J.216, 229 (1996) (citations omitted).

Here, we discern no error in the trial court's determination that dismissal of the indictment was not warranted. The trial judge specifically found that the State's failure to timely produce these additional discovery items was inadvertent rather than intentional, and that as soon as the assistant prosecutor became aware of their existence she immediately turned them over to defense counsel. Moreover, the trial judge properly exercised his discretion in adjourning the trial so as to afford defense counsel adequate opportunity to meet this new evidence. Like the trial court, we find that defendant has failed to establish prejudice. Defendant concedes that the recordings, when eventually provided, contained only static or general radio transmissions. Thus, even when produced, these materials were of scant exculpatory value.

Defendant's next contention, raised for the first time on appeal, is that the indictment should have been dismissed because the trial delay caused by the State's failure to timely provide this additional discovery violated his right to a speedy trial. "[T]he four-factor balancing analysis of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), remains the governing standard to evaluate claims of a denial of the federal and state constitutional right to a speedy trial in all criminal and quasi-criminal matters." State v. Cahill, 213 N.J.253, 258 (2013). Barker"identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial: length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant." Id.at 264.

Here, there was a delay of less than six months between the initial and new trial dates, some of which was attributable to the trial court's consideration of defendant's motion to dismiss the indictment as a sanction for the discovery violation. We do not view this delay as inordinate. Nor, as noted, do we discern any prejudice to defendant, who does not appear to have asserted his right to a speedy trial, and was appropriately afforded adequate opportunity to prepare.

We next turn to defendant's contention, raised for the first time on appeal, that the prosecutor improperly bolstered police witness testimony during her summation. During her closing argument, the prosecutor stated as follows:

Now, importantly and [defense counsel] touched on it when we were selecting you as jurors, many days ago now, you all did indicate that an officer, just like a regular person, you're going to weigh their credibility equally. Everyone's human. Well, if a layperson had been driving this vehicle, and [] defendant had crossed the double-yellow lines and driven directly at that person head-on, that layperson would have come to court, would have sat in that chair, and would have testified he dr[o]ve right at me, he was trying to hit me.

 

Well, we didn't have a layperson, we had officers. Officer Trejo said I watched him, he drove directly at Officer Vargas. He was trying to hit him, there was no question.

 

Prosecutors are "expected to make vigorous and forceful closing arguments to juries[,]" and "are afforded considerable leeway in [their] closing arguments[.]" State v. Frost, 158 N.J.76, 82 (1999). However, there are limits on what a prosecutor may say during summation. A prosecutor must "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence . . . . [I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson (Johnson I), 31 N.J. 489, 510 (1960)) (internal citations omitted). Prosecutors are also permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson (Johnson II), 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).

Our Supreme Court has articulated the standard for review of alleged prosecutorial misconduct with respect to summation remarks:

An appellate court, in reviewing the trial record to determine whether the conduct of the prosecutor exceeded these bounds, must consider several factors, including whether timely and proper objections were raised, whether the offending remarks were withdrawn promptly, and whether the trial court struck the remarks and provided appropriate instructions to the jury[.] Additionally, an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel. If, after completing such a review, it is apparent to the appellate court that the remarks were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. In contrast, if the prosecutorial remarks were not so egregious that they deprived the defendant of a fair trial, reversal is inappropriate.

 

[State v. Smith, 212 N.J. 365, 403-04 (2012) (internal quotation marks and citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).]

 

"Our courts have consistently held that . . . statements by a prosecutor about a police officer's credibility are wholly inappropriate." Frost, supra, 158 N.J. at 85 (finding suggestion that "police officers would not lie because of the 'magnitude' of charges that could be brought against them" improper). "[I]t is 'obviously improper to imply that police testimony should be accepted, 'not because of its believability but because the witnesses were policemen.'" State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993) (quoting State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969).

Here, the prosecutor's remark during summation could be construed as a veiled attempt to suggest that Officer Trejo's testimony was entitled to heightened credibility because of his status as a police officer. However, because defendant did not object to the prosecutor's summation, we examine the claimed error under the plain error standard, namely whether the prosecutor's summation was so egregious that but for this conduct, the jury reached a verdict it might not otherwise have reached. R.2:10-2. Measured under that standard, we are satisfied there was no error capable of producing an unjust result.

The evidence against defendant was substantial. Trejo's testimony was corroborated by the observations of several officers, from various police agencies, as well as photographs displaying the damage caused to the police vehicles. Moreover, the trial judge gave appropriate instructions to the jury on assessing credibility. The prosecutor's comment, to which defendant now objects, was largely responsive to defense counsel's own pointed summation in which she called into question the credibility of the police officers. The remark was not repeated, and when considered under the plain error standard, was not so egregious that it deprived defendant of a fair trial. State v. Echols, 199 N.J. 344, 360 (2009).

Defendant next argues that the trial judge, in responding to a jury question submitted during deliberations, usurped the jury's fact-finding role and denied him a fair trial. Specifically, the jury asked two questions regarding the eluding charge, and the trial judge responded as follows:

Okay. Then the next two questions, it's really the same question, because that goes to the eluding, the second- and the third-degree counts, 4 and 5 4) Is this just for the pursuit with Officer Trejo or does this include the entire pursuit? Is Officer Trejo named because he initiated the pursuit? Yes, that's the reason he's named, because it's the State's position he initiated the pursuit. And why is it stated as namely Officer Trejo and no mention of the other officers? I can't tell you. That's what they did. That's how they they wrote it up in the grand jury. Okay?

 

But then you ask in 5 is this just for the pursuit with Officer Trejo for the entire chase? Well, he initiated the pursuit. I can't really give you that answer, so you have to just apply it with Officer Trejo, as named in the indictment. Nobody else was named. Okay? Maybe that was a mistake. I don't know. Okay?

 

Defendant contends that the judge usurped the jury's fact-finding role by stating that Trejo initiated the pursuit, and by commenting that "[m]aybe that was a mistake" that other officers were not named in the indictment. Defendant did not object to this answer when the trial judge gave it, and thus to warrant reversal he must show that the response was plain error "clearly capable of producing an unjust result." R. 2:10-2.

"It is firmly established that '[w]hen a jury requests clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). "The correct technique is to require the jury to put its question in writing, for the judge to place it on the record and to give the attorneys an opportunity to be heard as to the proposed answer, and then to have the jury return to the courtroom to be further instructed accordingly. Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2013).

Here, as defendant points out, there is no evidence in the record that the judge discussed the questions with counsel. The judge's failure to do so was error. State v. Whitaker, 326 N.J. Super. 252, 262 (1992). However, as defendant failed to object, and as the judge's response does not appear to be clearly capable of producing an unjust result, we view the error as harmless. The judge's response, standing alone, may appear to instruct the jury that Trejo initiated the pursuit. However, we do not view the judge's response to the jury's question in isolation. Rather, we consider it in the broader context of the judge's statement shortly before that "it's the State's position that [Trejo] initiated the pursuit." Similarly, the judge's response that "[m]aybe it was a mistake" was made in the context of instructing the jury that, whatever the reason, they were limited to considering only Trejo, the sole officer named in the eluding charge contained in count four of the indictment.

In reviewing prejudicial conduct by a trial judge, we consider the entire transcript. Mercer v. Weyerhauser Co., 324 N.J. Super. 290, 298 (App. Div. 1999) (citing State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971)). Our independent review of the entire record reveals that the trial judge did not make remarks that tainted the jury s verdict.

Defendant further argues that the cumulative prejudice of the errors deprived him of a fair trial. However, we are satisfied that none of the errors alleged by defendant, individually or cumulatively, warrant the granting of a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954).

Finally, we reject defendant's argument that the trial court erred in imposing consecutive sentences, and that his aggregate sentence of fifteen-years in prison, with five-years of parole ineligibility, is excessive. The judge imposed the sentence after denying the State's application to sentence defendant to an extended term of imprisonment, based on his record which included at least two prior felony convictions.

In State v. Yarbough, 100 N.J.627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court set forth the following factors to be considered in imposing a consecutive sentence:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

 

(b) the crimes involved separate acts of violence or threats of violence;

 

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .

 

[Id. at 643-44 (footnote omitted).]

 

The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)) (internal quotation marks omitted). They should be applied qualitatively, not quantitatively. Id. at 427. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (even when offenses are connected by a "unity of specific purpose," "somewhat interdependent of one another," and "committed within a short period of time," concurrent sentences need not be imposed) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000).

A sentencing court must separately state "the reasons for imposing either a consecutive or concurrent sentence[.]" Yarbough, supra, 100 N.J. at 643. The separate statement is essential for appellate review. State v. Miller, 108 N.J. 112, 122 (1987). "When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal." State v. Miller, 205 N.J. 109, 129 (2011) (citation omitted). However, a remand for resentencing is required when the court fails to set forth a separate statement of reasons for imposing consecutive sentences. State v. Abdullah, 184 N.J. 497, 514-15 (2005); Miller, supra, 108 N.J. at 122. But see State v. Jang, 359 N.J. Super. 85, 97 (App. Div.) ("[W]e have where appropriate affirmed a consecutive sentence where the facts and circumstances leave little doubt as to the propriety of the sentence imposed." (citation omitted)), certif. denied, 177 N.J. 492 (2003).

Here, while the judge did not specifically mention Yarbough, he specified that he was imposing consecutive terms on count one, third-degree receiving stolen property (i.e., the Honda Civic) and count four, second-degree eluding, because there were multiple victims. The judge reasoned: "on [c]ount [one], which is receiving stolen property, the car, that's a totally different victim than the police officers or the public. So on [] count [one], I'm going to sentence you to five years to run consecutive to count [four]." Indeed, there were also numerous police victims who were endangered by defendant's "outrageous behavior", for which defendant received the benefit of concurrent sentences. In addition, we have held that "[s]ometimes circumstances will indicate that defendant is the type of repetitive offender not likely to be rehabilitated and, therefore, should be incarcerated under consecutive sentences for the protection of the public." State v. Mosch, 214 N.J. Super. 457, 464 (App. Div. 1986) (citation omitted), certif. denied, 107 N.J. 131 (1987). Here, the trial judge noted that defendant had at least two prior indictable convictions, two violations of probation, and two disorderly persons offenses.

Finally, we disagree with defendant's contention that his sentence was excessive. Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J.283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J.165, 180 (2009). A sentence that adheres to the applicable guidelines should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J.334, 364 (1984); see alsoState v. Bieniek, 200 N.J.601, 608 (2010).

In this case, the appropriate factors were applied and we discern no abuse of discretion by the trial judge. The trial judge properly took three aggravating factors into consideration: aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will commit another offense; factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record; and factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. No mitigating factor was found. The sentence imposed does not shock our judicial conscience.

Affirmed.

1 State v. Driver, 38 N.J. 255 (1962).

2 The trial judge was not the same judge who presided over the aborted first trial and motion to dismiss.