STATE OF NEW JERSEY v. HOMER ANDREWS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4615-11T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

HOMER ANDREWS,

Defendant-Respondent.

-

March 5, 2013

Argued January 29, 2013 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-03-0472.

John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, of counsel and on the brief).

Howard P. Lesnik argued the cause for respondent (Triarsi, Betancourt & Wukovits, LLC, attorneys; Mr. Lesnik, on the brief).

PER CURIAM

By leave granted, the State appeals from the Law Division's April 16, 2012 order dismissing Essex County Indictment No. 11-03-0472 without prejudice. For the reasons that follow, we reverse.

I.

On March 8, 2011, an Essex County grand jury issued indictment No. 11-03-0472 against defendant Homer Andrews, charging him with: first-degree carjacking, contrary to N.J.S.A. 2C:15-2 (count one); first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b (count two); and second-degree eluding, contrary to N.J.S.A. 2C:29-2b (count three). The testimonial support for the indictment was provided to the grand jury on January 4, 2011, by Newark Police Officer Marisol Gonzalez and kidnapping victim Rhason Leeks.

The following facts are derived from the grand jury testimony. On September 18, 2010, Officer Gonzalez was on street patrol. At approximately 1:45 a.m., Erica Bates, a taxi driver, flagged down Officer Gonzalez on Norwood Street and Linsley Avenue.

Bates informed Officer Gonzalez that a person, later identified as defendant, had called for taxi service. Bates claimed that she picked up defendant on Wood Street in East Orange and transported him to a bank. While driving, defendant asked Bates if she had change for a $100 bill, to which Bates replied that she did. When asked for $35 to pay for the taxi ride, defendant indicated that he was going to pay Bates $40. When the taxi stopped, defendant exited the rear, walked up to the driver's side door, opened it, then pulled Bates out of the taxi. Defendant entered the taxi and drove away. Bates's personal items, including her purse and money, were in the taxi at the time.

Officer Gonzalez searched the immediate area, but was unable to locate the missing taxi. The police eventually determined the vehicle identification and plate numbers of the taxi by calling the taxi company. The taxi's identifying information was then broadcast over the police radio.

According to Officer Gonzalez, at approximately 4:26 a.m., Officer Ricardo Oliveira, also of the Newark Police, spotted the stolen taxi in the area of Tremont and Sanford Avenues. He activated his overhead lights and sirens, but the taxi did not pull over. Instead, the taxi sped off and a chase ensued. Eventually, defendant lost control of the taxi and crashed it into a fence off of Tremont Avenue in Orange. Defendant was then captured and identified.

Orange Police Department officers joined Officer Oliveira at the crash site. There, the officers discovered Leeks in the back of the taxi, who informed the officers that he thought defendant was an actual taxi driver. According to Leeks, he hailed the taxi at approximately 4:20 a.m. Defendant asked him how much he usually paid and he replied "$10." Leeks indicated the police used their lights and siren to signal defendant to pull over but defendant "stepped on the gas and just kept going." During the chase, Leeks indicated to defendant that he wanted to get out, but defendant refused to stop, telling Leeks "I ain't going to jail." Leeks estimated that defendant's speed reached "at least [eighty] miles an hour."

Both the Newark Police Department and the Orange Police Department completed reports. The Newark Police Computer Aided Dispatch (CAD) and Event Chronology Report indicate that the police apprehended defendant at the crash scene at 4:12 a.m. However, they also indicate the police were pursuing the taxi defendant was driving at 4:24 a.m. Officer Oliveira completed a "Vehicle Pursuit Report," which indicates the pursuit occurred at 4:26 a.m. Officers from the Orange Police Department completed three "Incident Reports," all of which show a time of 4:10 in the "Hour" section. The reports were not submitted to the grand jury.

On February 10, 2012, defendant moved to dismiss count three of the indictment for failure to produce exculpatory evidence before the grand jury, namely the police reports. On April 16, 2012, the Law Division heard argument on defendant's motion. Defendant argued that the police reports indicate the police apprehended defendant at 4:12 a.m. and the motor vehicle pursuit occurred at 4:24 a.m. Thus, defendant contended, the conflicting times are clearly exculpatory evidence because if the crash occurred approximately fifteen minutes before the high speed chase, no eluding could have occurred. The State argued that it presented sufficient evidence to the grand jury regarding the elements of the crime of eluding. According to the State, the conflicting chronology in the reports is not exculpatory evidence, but rather an issue of credibility for the jury.

Following argument, the trial judge issued an oral decision granting defendant's motion. The judge found that

based upon the submissions of the defense and based upon the exhibits submitted thereto, it is critical, it is seminal that the grand jury have been presented with an opportunity to determine what time the offense occurred. . . . [I]f . . . defendant was arrested after the car had already crashed and that becomes a matter for the grand jury to determine, in light of all the other evidence that was presented . . . whether the State has satisfied its burden to establish each element of the offense of eluding, in so doing, whether the grand jury would have returned a true bill as to that count.

This appeal followed. The State presents a single argument for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED COUNT THREE OF THE INDICTMENT []11-03-0472

II.

Our Supreme Court "has recognized the grand jury's independence and has expressed a reluctance to intervene in the indictment process." State v. Hogan, 144 N.J. 216, 228 (1996) Accordingly, a court should only disturb a grand jury's indictment "when the indictment is manifestly deficient or palpably defective." Id. at 228-29.

The decision whether to dismiss an indictment lies within "the discretion of the trial court[.]" State v. McCrary, 97 N.J. 132, 144 (1984). We review a trial court's decision on whether to dismiss an indictment under the abuse of discretion standard. State v. Salter, 425 N.J. Super. 504, 514 (App. Div. 2012). "A trial court decision will constitute an abuse of discretion where the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Ibid. (internal quotation marks and citations omitted) (alteration in original).

A grand jury is not only responsible to bring the guilty to trial, but also to "'protect[] the innocent from unfounded prosecution.'" Hogan, supra, 144 N.J. at 228 (quoting State v. Murphy, 110 N.J. 20, 29 (1988)) (alteration in original). It acts as the gatekeeper for the innocent "'against hasty, malicious and oppressive prosecution[.]'" Hogan, supra, 144 N.J. at 235 (quoting State v. Del Fino, 100 N.J. 154, 165 (1985)).

The State is not required to present evidence for the accused to the grand jury. Hogan, supra, 144 N.J. at 235. However, the State must present evidence to the grand jury "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." Id. at 236. Accordingly, the State is required to present evidence to the grand jury only if: (1) it directly negates guilt; and (2) it is "clearly exculpatory." Id. at 237.

The court must evaluate the quality and reliability of the evidence to determine whether it is clearly exculpatory. Ibid. Otherwise exculpatory evidence may not necessarily be "clearly exculpatory" if it is directly and strongly contradicted by other evidence. See id. at 238 ("the exculpatory testimony of one eyewitness is not 'clearly exculpatory' if contradicted by the incriminating testimony of a number of other witnesses"). "[O]nly in the exceptional case will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment." Id. at 239.

III.

In this case, we are convinced that the State's failure to present the police reports to the grand jury did not warrant the dismissal of the eluding charge. The times in the reports do not directly negate defendant's guilt and are not clearly exculpatory. While it is obvious that defendant could not have eluded the police if he had already been apprehended, the testimony the State presented to the grand jury provided a clear basis for the State's claim that defendant knowingly fled from Officer Oliveira. This evidence is not expressly contradicted by the conflicting times in the report.

Most importantly, Leeks, who was in the taxi, testified to the grand jury that the police pulled up behind the taxi with "their lights and sirens on" and attempted to pull over the taxi. Defendant failed to pull over, and instead accelerated the taxi to approximately eighty miles per hour. According to Leeks, defendant said to him at the time, "I ain't pulling . . . I ain't going to jail." Additionally, Officer Oliveira completed a "vehicle pursuit report," which indicates there was a motor vehicle pursuit involving defendant.

We are satisfied that the indictment was neither manifestly deficient nor palpably defective such that the Law Division's dismissal of the eluding charge was warranted. Id. at 228. The State did not knowingly present "half-truths" to the grand jury. Id. at 236. The grand jury testimony established the necessary elements of the crime of eluding. See N.J.S.A. 2C:29-2b. The contradictory times in the reports are not clearly exculpatory evidence, but rather evidence that defendant may use to attack the credibility of the State's proofs. Hogan, supra, 144 N.J. at 239 (the State's failure to present evidence to a grand jury that relates to credibility does not warrant dismissal of an indictment).

The effect of the trial court's decision would be to require prosecutors to scour all police reports and records for mistakes and typographical errors and then present such information to the grand jury. Depending on the nature of the errors or mistakes, witnesses would often need to be called to provide explanations. In Hogan, the Court specifically declined "to adopt any rule that would compel prosecutors generally to provide the grand jury with evidence on behalf of the accused. Such a rule would unduly alter the traditional function of the grand jury by changing the proceedings from an ex parte inquest into a mini-trial." Id. at 235.

We are satisfied that the discrepancies in the times in the police reports do not clearly and directly negate defendant's guilt nor are they clearly exculpatory. As such, the State's failure to submit the reports to the grand jury did not amount to the presentation of "half-truths" warranting dismissal of the indictment. Id. at 236.

Reversed and remanded.