STATE OF NEW JERSEY v. TERANCE GILLIAM

NOT FOR PUBLICATION WITHOUT THE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.

TERANCE GILLIAM, a/k/a WILLIAM

GILLIAM, TERRANCE GILBERT,

Defendant-Appellant.

________________________________________________________________

May 30, 2014

Submitted April 29, 2014 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-05-01505.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Terance Gilliam of various crimes stemming from a high-speed chase through Newark, which ended when defendant struck an oncoming Jeep, injuring two people.1 Defendant raises several issues for the first time on appeal and argues that his sentence of eight years in prison was excessive. We affirm.

The evidence at trial revealed the following facts. At approximately 9 p.m. on February 20, 2009, the Newark police attempted to make a motor vehicle stop when they observed a black Nissan Altima driving with its headlights off. Police pursued the vehicle with activated sirens and lights and the Nissan came to a stop. After the two officers exited the patrol car, the Nissan "took off at a high rate of speed." Officers returned to the patrol car and gave chase.

Police lost the Nissan because of mechanical trouble with their car. Other officers in an unmarked patrol car saw the Nissan "shoot down" the street and make a "wild right." These officers continued pursuit at a close distance with sirens and emergency lights engaged. The Nissan drove with no headlights, travelled well in excess of the posted speed limit and nearly hit the pursuing officers during the chase.

Dispatch ordered officers to end the chase because of safety concerns. The officers pulled over at the top of a hill where they could see the Nissan attempt to speed around cars stopped at a red light at an intersection, enter the opposite lane of traffic and collide with an oncoming Jeep. Seeing the accident, they drove to the scene.

Co-defendant jumped out of the Nissan and was apprehended after a short chase, while defendant was arrested after climbing out of the passenger window of the incapacitated Nissan. The officer who captured defendant and who also witnessed the crash explained that when he arrived at the scene of the accident, defendant was in the driver's seat trying to start the heavily damaged Nissan. The officer briefly pursued defendant on foot. Defendant physically struggled with the police when they tried to arrest him. Two officers identified defendant in court as the driver of the Nissan. The two occupants of the Jeep sustained injuries from the head-on collision and were taken to the hospital by ambulance.

Defendant called Ebony Gilliam, his sister, who testified that on the evening of February 20, 2009, she picked defendant up from work and brought him to her house for dinner. She stated that defendant was at her house until "anywhere between 8:00 p.m. and 9:00 p.m." She testified that she thought defendant went to his girlfriend's apartment after leaving. Defendant did not testify at trial.

During the jury charge conference, the judge determined that, despite its marginal application, he would provide the jury with an alibi charge. The judge also ruled that a flight charge was "appropriate" and defendant's lawyer did not object, stating "In light of [Your Honor's] rulings, I have nothing to add."

Defendant was convicted of two counts of second-degree aggravated assault while eluding a law enforcement officer for injuring the two people in the Jeep, N.J.S.A. 2C:12-1(b)(6); second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree possession of a weapon, an automobile, for an unlawful purpose, N.J.S.A. 2C:39-5(d).2 The judge sentenced defendant to an aggregate term of eight years in prison with a mandatory eighty-five percent period of parole ineligibility and special three year term of parole supervision following release from prison pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c).

On appeal, defendant raises the following issues:

POINT I: THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTIONS DIRECTING THE JURORS TO FIND THAT THE DEFENDANT LEFT THE SCENE OF THE CRIME. (NOT RAISED BELOW)

POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, INCOMPLETE, AND PREJUDICIAL INSTRUCTION ON THE LAW OF ELUDING. (NOT RAISED BELOW)

A. THE TRIAL COURT OMITTED THE ESSENTIAL ELEMENT OF PURPOSEFUL CONDUCT AND FAILED TO EXPLAIN WHAT CONSTITUTES AN ATTEMPT TO ELUDE.

B. THE TRIAL COURT ERRED BY INSTRUCTING JURORS THAT THEY COULD INFER THAT THE DEFENDANT CREATED A RISK OF INJURY ON THE BASIS OF MERE EVIDENCE OF MOTOR VEHICLE INFRACTIONS WITHOUT ANY JURY FINDINGS BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ACTUALLY VIOLATED MOTOR VEHICLE LAWS.

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.

POINT IV: THE SENTENCE IS EXCESSIVE. (PARTIALLY RAISED BELOW)

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

B. THE TOTAL ELEVEN-YEAR SENTENCE (EIGHT YEARS PLUS THREE YEARS OF PAROLE SUPERVISION) EXCEEDS THE MAXIMUM TEN- YEAR SENTENCE AUTHORIZED BY THE LAW. (NOT RAISED BELOW)

C. THE TRIAL COURT UNCONSTITUTIONALLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE. (NOT RAISED BELOW)

I

Defendant argues in Point I of his brief that his due process rights were violated because the trial judge erroneously instructed the jurors with regard to flight. The flight charge was particularly relevant because defendant was charged with possession of a stolen car, and the jury could have determined that flight after a traffic stop for a minor motor vehicle offense revealed a consciousness of guilt as to this charge. Defendant argues that his misidentification and alibi defenses were "wholly undermined by the unnecessary and extraordinarily prejudicial jury instruction on the law of flight manifesting in a consciousness of guilt." Although he was arrested at the scene of the crash, defendant argues on appeal, as an inference from his sister's testimony, that in fact he was on his way to see his girlfriend and innocently became involved in the accident scene.

The plain error standard applies to a jury instruction when counsel fails to object before the jury retires for deliberation. See R. 1:7-2 ("no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict").

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing judge and to convince the judge 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)). For a jury instruction error to require reversal, there must be a real possibility that the error in the charge led "the jury to a verdict that it otherwise might not have reached." State v. Galicia, 210 N.J. 364, 388 (2012) (internal citations and quotation marks omitted).

In the flight charge, the judge closely followed the language of the Model Jury Charge, molding the charge to the facts. He told the jury that there "was some testimony" that defendant fled shortly after the collision, but the "question of whether [defendant] fled after the commission of the alleged act is another question of fact for your determination. Mere departure from a place, where a crime has been committed, does not constitute flight."

The judge also explained that defendant "as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish . . . that he is the person who committed the alleged offense." He reminded the jury that "You must determine . . . not only whether the State has proven each and every element of the offense beyond a reasonable doubt, but also whether the State has proven beyond a reasonable doubt that [defendant] is the person who committed those crimes." The judge noted that two detectives identified defendant based on their "observations and perceptions," but told the jury "It is your function to determine whether the identification of [defendant] is reliable and believable or whether it is based on a mistake . . . ." The judge then proceeded to charge the jury at length on whether a police identification of defendant may be mistaken, despite the testifying officer's degree of certainty.

The judge's charge regarding flight was based on the evidence adduced at trial and was even-handed. It did not deprive defendant of a fair trial.

II

In Point II of his brief, defendant argues, again as plain error, that the trial judge erred by omitting the essential element of "purposeful conduct" in the eluding and aggravated assault charge, and by failing to explain what constitutes an attempt to elude. He also maintains that the trial judge erred by instructing the jury that they could "infer that defendant created a risk of injury on the basis of mere evidence of motor vehicle infractions without any jury findings beyond a reasonable doubt that defendant actually violated motor vehicle laws." The State agrees that the judge failed to define "attempt" for the jury, but, citing to State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd, 175 N.J. 201 (2002), argues that the "definition was not warranted since eluding is not 'an inchoate offense involving an attempt to commit another crime.'" The State argues that because no interpretation of the facts elicited at trial could support a finding that the driver of the Nissan "attempted" to elude police, the failure to charge the jury on "attempt" is not reversible error.

A

First, defendant argues that the judge committed reversible error by failing to instruct the jury on the law of attempted eluding. He concedes that the plain error standard, Rule 2:10-2, applies as it was not objected to at trial.

Our decision in State v. Mendez is dispositive. Judge Skillman explained that "eluding consists simply of fleeing by motor vehicle from a person who the perpetrator knows to be a law enforcement officers[,]" and not "an attempt to commit another substantive offense." Id. at 506.

Judge Skillman opined that the only culpability requirement set forth in N.J.S.A. 2C:29-2b is "knowingly" and that the statutory language "flees or attempts to elude" means that "the conduct forbidden . . . is the act of flight or eluding, and that the elements of the offense do not include a 'result' element of success in avoiding apprehension . . . ." Id. at 508-09.

The judge charged the proper culpability requirement for the eluding offense as "knowingly." The judge also stated that "the State must prove beyond a reasonable doubt that Mr. Gilliam knew that he was being pursued by Police Officers, but did not stop." In light of Mendez, the instruction was proper.

B

Next, defendant argues that the judge erred by instructing the jury that they could "infer" that defendant created a risk of bodily injury during flight without explaining the traffic laws defendant was alleged to have violated. The judge provided the jury with a complete instruction on eluding, including whether the "flight or attempt[] to elude created a risk of death or injury to any person." The judge stated, "You may infer risk of death or injury to any person, if the the defendant's conduct in fleeing or attempting to elude the Officer involved a violation of a motor vehicle law of the State of New Jersey." He instructed the jury that

it is alleged that the defendant's conduct involved the following violations . . . (1) That the vehicle failed to stop at a traffic light . . . [(2)] that the vehicle was travelling or speeding over the permitted speed limit; (3) Also that, at some point, the vehicle was driving on the wrong side of the street.

The judge did not delineate the elements of those violations.

Defendant objects to this instruction for the first time on appeal, relying on State v. Wallace, 158 N.J. 552 (1999). In Wallace, the defendant fled after police tried to make a traffic stop and led police on a high-speed chase through Paterson. Id. at 554-55. No injuries resulted and defendant was convicted of second-degree eluding. Id. at 555. Our Supreme Court set forth two ways for the State to prove that defendant's conduct in eluding the police created a risk of death or injury to another. Id. at 560. First, the State may show through direct or circumstantial evidence that at least one person was put in danger of death or physical injury by the defendant's conduct in eluding. Ibid. The Court noted that "the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates the possibility of injury to others." Ibid. If there was no injury, a permissive inference of injury may be demonstrated by proof that the defendant committed a motor vehicle infraction while eluding. Id. at 558-59.

Defendant objects that the judge gave the jury the language from the model jury charge that defendant's guilt of these motor vehicle violations will be determined at another time. Model Jury Charge (Criminal), "Eluding an Officer" (Nov. 15, 2004). This language makes clear that the evidence that defendant committed these traffic violations is relevant although guilt of those offenses is not before the jury. When requested by defense counsel and no injuries were caused by the eluding, the motor vehicle offenses of failing to stop at a stop sign should be explained by the trial judge. State v. Dorko, 298 N.J. Super. 54, 60 (App. Div.), certif. denied, 150 N.J. 28 (1997). The motor vehicle infractions of speeding and driving on the wrong side of the road are extremely straightforward and required no further explanation. Failure to stop at a stop sign, however, which requires further explanation, was one of the offenses alleged here.

Defense counsel, however, did not request an explanatory charge and, most importantly, no permissive inference was necessary because the two occupants of the Jeep were actually injured. Any error in failing to explain the elements of the traffic violations here was harmless because defendant actually caused injury to two people while eluding. See State v. Macon, 57 N.J. 325, 338 (1971) (A new trial is required only if there is a "reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]").

III

In Point III of his brief, defendant argues that his due process rights were violated by prosecutorial misconduct because the prosecutor's statement that the police witnesses were "eager" to testify improperly bolstered police credibility, which unfairly prejudiced defendant. Co-defendant's counsel objected to the comment, but when the judge offered to give a corrective charge, counsel said, "[N]o[,] I just want to make sure he doesn't go any further or go down that claim again and again and again." Defendant's attorney did not seek a limiting charge to the jury at that time. The prosecutor did not repeat the comment.

Prosecutors are guided by the maxim that they "may strike hard blows, [but] not . . . foul ones." State v. Feaster, 156 N.J. 1, 59 (1998). This court reviews the remarks to determine whether they were "sufficiently egregious" to warrant a new trial. State v. Frost, 158 N.J. 76, 83 (1999). "In determining whether the prosecutor's comments were sufficiently egregious to deny defendant a fair trial, [the court] consider[s] the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1995).

The one brief comment by the prosecutor was not egregious and did not deprive defendant of a fair trial in light of its context. Our decision is further supported by defense counsel's decision not to accept the judge's offer to provide a curative jury instruction.

IV

Finally, in Point IV of his brief, defendant argues that his sentence was excessive and illegal. The judge imposed sentences on all counts concurrently, after merging the two aggravated assault charges,3 and sentenced defendant to a term of eight years, approximately mid-way between the minimum and maximum term for a second-degree crime. He imposed the mandatory NERA provisions.

In determining the appropriate sentence to be imposed, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified in N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001). If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

In State v. Bieniek, 200 N.J. 601, 608 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division.

At the sentencing hearing, defense counsel argued that the judge should consider mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that incarceration would involve excessive hardship to his dependent, because defendant had a six-year-old child. Defendant's sister addressed the judge at sentencing and noted that defendant is "helping his girlfriend take care" of his son. The judge found that defendant was not the primary caregiver for the child, nor did he provide primary financial support, and refused to apply mitigating factor eleven. The judge reviewed defendant's six prior arrests, one prior disorderly persons conviction and two priorindictable convictions and found applicable aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9).

The judge properly identified and balanced the factors and their existence is supported by sufficient credible evidence in the record. Defendant's remaining sentencing arguments are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant was tried with his passenger, co-defendant Zakkee Strickland, who entered a guilty plea to a disorderly persons offense while the jury was deliberating.

2 Defendant was found not guilty of receiving a stolen car, N.J.S.A. 2C:20-7; possession of a weapon, the car, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and resisting arrest, N.J.S.A. 2C:29-2a(3)(a).

3 The judge's support for merging these convictions, State v. Graham, 233 N.J. Super. 571, 577 (App. Div. 1989) and N.J.S.A. 2C:1-8, does not apply here where two people were injured. The State, however, did not object.