STATE OF NEW JERSEY v. SHAWN LOYAL

NOT FOR PUBLICATION WITHOUT THE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.

SHAWN LOYAL a/k/a TASHAWN BENNET,

Defendant-Appellant.

____________________________________

October 30, 2014

Argued October 16, 2014 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-05-0493.

Christopher Balioni argued the cause for appellant (Roberts & Saluti, L.L.C., attorneys; Richard M. Roberts, of counsel; Mr. Balioni, on the brief).

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

PER CURIAM

Following trial by a jury, defendant Shawn Loyal appeals from a judgment of conviction on crimes stemming from his driving a stolen vehicle, causing serious bodily injury while eluding the police, and resisting arrest. We affirm.

Defendant stood trial on twelve counts of a thirteen-count indictment, one count having been voluntarily dismissed by the State. The charges presented to the jury were: (count one) second-degree eluding, N.J.S.A. 2C:29-2(b); (counts two and three) second-degree aggravated assault causing bodily injury during the course of eluding, N.J.S.A. 2C:12-1B(6); (count five) second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1b(1); (count six) fourth-degree assault by auto causing serious bodily injury, N.J.S.A. 2C:12-1(c)(1); (count seven) third-degree receiving stolen property, N.J.S.A. 2C:20-7; (count eight) third-degree aggravated assault of a police officer, N.J.S.A. 2C:12-1(b)(5); (count nine) fourth-degree aggravated assault of a police officer, N.J.S.A. 2C:12-1(b)(5); (count ten) third-degree resisting arrest by force, N.J.S.A. 2C:29-2(a); (count eleven) fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a); (count twelve) third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4); and (count thirteen) fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4).

The evidence showed the following facts. On November 18, 2009, Union Township Police Detective Michael Wittevrongel and Officer Anthony Lagoa were on patrol in an unmarked police vehicle when they saw a stolen Chrysler drive past them in the opposite direction on Morris Avenue. The driver was an African-American man with long dreadlocks. There seemed to be no other occupants or passengers in the Chrysler.

Wittevrongel turned the police car around to conduct a motor vehicle stop of the Chrysler. After seeing the Chrysler drive through a red light, he activated the police vehicle's lights and siren. The Chrysler did not stop and began weaving through traffic as the police vehicle pursued. Lagoa was communicating with police headquarters to report the location and speed of the chase. At one point, he told police headquarters "it looks occupied two times," meaning he thought there were two people in the stolen vehicle.

The officers followed the Chrysler as it drove through Elizabeth at speeds up to seventy miles per hour and failed to observe stop signs or traffic signals. Eventually, the Chrysler ran a red light and broadsided a taxicab, seriously injuring the two occupants of the cab. As the police car approached the collision, the officers saw defendant trying to get out of the driver's side door of the stolen Chrysler. Wittevrongel drove up close and pinned shut the driver's door. Defendant climbed over to the passenger's seat, jumped out the passenger side door, and began to flee. The officers chased him on foot.

Defendant tripped and was attempting to get up as the officers approached. Lagoa dove on top of defendant to prevent him from fleeing again. Defendant was kicking and flailing his body but the officers were eventually able to subdue and arrest him. Lagoa then communicated to police headquarters "just be advised there's only one head in the vehicle. Again, one person. Everybody's in custody." Defendant was brought to police headquarters where he told officers his name was James Smith.

Defendant testified at the trial that he was not the driver of the stolen car, but that a former schoolmate of his named Jowan was the driver. He claimed Jowan was giving him a ride to his girlfriend's house when the officers began pursuing the Chrysler. Defendant testified he urged Jowan to pull over and tried to take the keys from the ignition, but he was not able to stop Jowan from driving wildly through the streets and crashing into the taxicab. He also claimed he was knocked unconscious in the crash, that the officers pulled him out of the car and punched him, and when he woke up Jowan was gone and the officers were telling him he was the driver.

To support defendant's claim that he was a passenger, defense counsel intended to show that the passenger-side airbag of the Chrysler had deployed in the crash. At a pretrial conference, the attorneys stipulated that the reasons for deployment of the passenger-side airbag would not be discussed before the jury because defense counsel did not have an expert on the subject to support his theory that the airbag would not have deployed unless the passenger seat was occupied. At the same time, counsel agreed that photographs of the interior of the car were admissible. The court ruled that defense counsel could question witnesses about the deployment of the passenger-side airbag and comment about it in argument to the jury but could not speculate as to the reason it had deployed without admissible expert testimony.

The jury found defendant guilty of all counts except count nine, which charged fourth-degree aggravated assault of a police officer. At defendant's sentencing, the court merged several counts and sentenced defendant to consecutive terms on three counts of conviction. On count two, which charged second-degree aggravated assault causing bodily injury to an occupant of the taxicab during the course of eluding, the court sentenced defendant to fifteen years imprisonment, a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a), subject to the parole ineligibility and parole supervision terms required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count two, for the same crime with respect to the second injured victim in the taxicab, the court sentenced defendant to ten years imprisonment subject to NERA. On count eight, for aggravated assault of a police officer, defendant was sentenced to three years imprisonment. The court also sentenced defendant to concurrent terms of imprisonment on additional counts. In total, defendant was sentenced to twenty-eight years of imprisonment, subject to an eighty-five percent term of parole ineligibility, followed by three years of parole supervision.

On appeal, defendant argues

POINT I

THE TRIAL COURT ERRED IN FAILING TO ORDER THE ENTRY OF A JUDGMENT OF ACQUITTAL ON COUNTS 1, 2, 3, 5 AND 6 ON THE GROUNDS THAT THE EVIDENCE PRESENTED BY THE STATE RELATING TO THE IDENTITY OF THE DRIVER WAS INSUFFICIENT TO WARRANT CONVICTION OF DEFENDANT-APPELLANT SHAWN LOYAL FOR THE CRIMES CHARGED IN THE INDICTMENT. (Not Raised Below).

POINT II

DEFENDANT-APPELLANT SHAWN LOYAL WAS DENIED FAIRNESS, DUE PROCESS OF LAW, AND DID NOT RECEIVE A FAIR TRIAL, BECAUSE THE STATE FAILED TO CONDUCT CRITICALLY RELEVANT INVESTIGATIONS WHICH COULD HAVE EXONERATED HIM AND LED TO THE APPREHENSION, ARREST AND PROSECUTION OF THE TRUE CULPRIT, WHO GOES BY THE NAME OF JOWAN.

POINT III

BECAUSE CRITICAL INVESTIGATION QUITE LIKELY LEADING TO HIS EXONERATION WERE NEVER UNDERTAKEN, DEFENDANT-APPELLANT SHAWN LOYAL NOW HAS THE RIGHT TO HAVE HIS CONVICTION SET ASIDE ON THE GROUNDS THAT IT VIOLATES THE DOCTRINES OF FUNDAMENTAL FAIRNESS AND DUE PROCESS.

JUDGES HAVE THE INHERENT POWER TO GUARANTEE THE PROPER ADMINISTRATION OF JUSTICE BY CORRECTING MISDEEDS THAT SUBVERT JUSTICE. IT THEREFORE STANDS TO REASON THAT HIS JUDGMENT OF CONVICTION MUST IN ALL RESPECTS BE SET ASIDE AS A MATTER OF LAW AND IN THE INTERESTS OF JUSTICE.

POINT IV

DEFENDANT-APPELLANT SHAWN LOYAL DID NOT RECEIVE A FAIR TRIAL BECAUSE THE TRIAL COURT SUPPRESSED EVIDENCE OF AND COMMENT ABOUT THE DEPLOYMENT OF THE FRONT SEAT PASSENGER AIR BAG FROM WHICH THE JURY COULD HAVE LOGICALLY INFERRED THAT HE WAS THE FRONT SEAT PASSENGER AND NOT THE DRIVER (AS ALLEGED) OF THE SUBJECT MOTOR VEHICLE BEING PURSUED BY THE POLICE AND ALSO BECAUSE THE COURT FAILED TO ORDER THE PARTIES TO PRESENT EXPERT TESTIMONY ON THE SUBJECT OF AIR BAG DEPLOYMENT. (Not Raised Below).

POINT V

DEFENDANT-APPELLANT SHAWN LOYAL DID NOT RECEIVE A FAIR TRIAL BECAUSE THE COURT PERMITTED SUGGESTIVE IN-COURT IDENTIFICATION PROCEDURES THAT LED TO HIS IDENTIFICATION AS THE CRIMINAL ACTOR. (Not Raised Below).

POINT VI

THE CUMULATIVE ERRORS COMMITTED THROUGHOUT THE PROCEEDINGS DENIED DEFENDANT SHAWN LOYAL FUNDAMENTAL FAIRNESS, A FAIR TRIAL AND DUE PROCESS OF THE LAW. (Not Raised Below).

We find no merit in any of these arguments.

Defendant argues that the court erred in not acquitting him of several counts of the indictment because the evidence was insufficient to prove beyond a reasonable doubt that he was the driver of the stolen car.

Rule 3:18-1 permits the court, either on defendant's motion or its own initiative, to "order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." The trial judge must determine whether, viewing the evidence in its entirety and giving the State the benefit of all favorable testimony as well as all favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). "[T]he trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). Our review of a motion for acquittal is "limited and deferential" and governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).

Here, the evidence was clearly sufficient for the trial judge to submit the question of defendant's guilt to the jury. The State presented testimony from Wittevrongel and Lagoa regarding their pursuit, apprehension, and identification of defendant as the driver of the Chrysler. Although defense counsel attempted to cast doubt on the proofs by questioning the officers about their distance behind the Chrysler, by emphasizing Lagoa's statement that the Chrysler was "occupied two times," and by mentioning the deployment of the passenger-side airbag, the jury had ample evidence to find beyond a reasonable doubt that defendant was in fact the driver of the stolen car.

Next, defendant contends he did not receive a fair trial because the court permitted the use of suggestive in-court identification procedures. He argues that Wittevrongel's and Lagoa's in-court identifications of him were impermissibly suggestive because he was the only African-American man in the courtroom and he was seated at the defense table, making him perfectly targeted and set up to be identified by the officers. Because defendant did not object to the identifications, they are reviewed under the plain error standard. R. 2:10-2.

We find no error, let alone plain error, in the in-court identifications of defendant as the driver of the Chrysler. Our Supreme Court has not set guidelines for in-court identifica-tions, nor indicated that they must be made similarly to out-of-court identifications in a way that is not suggestive. State v. Clausell, 121 N.J. 298, 327 (1990) (citing United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (observing that no decision of the United States Supreme Court requires in-court identifications to meet the same standards of reliability as pretrial identifications), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987)).

On direct examination, the State asked Wittevrongel whether he was able to see the person he arrested and whether that person was the same one he saw driving the vehicle. Wittevrongel responded yes and identified defendant. Similarly, when the prosecutor asked Lagoa whether he would be able to recognize the individual he arrested, he identified defendant. Defense counsel did not object during either in-court identification or question the witnesses about it on cross-examination. The questioning was merely routine in-court identification of defendant as the person arrested and charged with the crimes.

The question of whether defendant was in fact the driver of the stolen car was a separate issue that occupied substantially more of the officers' direct and cross-examinations. At the conclusion of evidence, the trial judge instructed the jury on assessing the reliability and credibility of the officers, including their identifications of defendant as the driver.

"The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury." Foster v. California, 394 U.S. 440, 442 n.2, 89 S. Ct. 1127, 1128 n.2, 22 L. Ed. 2d 402, 406 n.2 (1969); accord State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). We find nothing in the record to suggest the jury did not properly evaluate the identifications in light of the credibility and reliability of the officers' testimony.

Defendant also argues that the State's failure to investigate Jowan's identity denied him due process of law and a fair trial. We have never imposed upon the police an affirmative constitutional duty to investigate all possible leads or an obligation to utilize a particular investigative technique to suit defendant's view of the case. See State v. Johnson, 203 N.J. Super. 127, 131-33 (App. Div.), certif. denied, 102 N.J. 312 (1985). The decision of the police not to investigate defendant's claim that a person named Jowan was the driver of the car did not deprive him of a fair trial.

Finally, defendant argues he did not receive a fair trial because the court excluded evidence and barred comment regarding the passenger-side airbag and failed to order the parties to present expert testimony on the subject of airbag deployment. Because defense counsel did not have expert testimony on that subject, the parties stipulated that counsel would not argue that a deployed passenger-side airbag necessarily meant a person was in the passenger seat at the time of the crash. The court limited defense counsel to discussing the existence of the airbags, offering pictures in evidence showing the interior of the Chrysler with the deployed airbags, and questioning the officers regarding their observations of the vehicle. Consistent with these stipulations and rulings, defense counsel limited her argument to the agreed upon topics and utilized other evidence to show that defendant was not the driver. The court did not abuse its discretion in limiting the testimony and counsel's arguments to admissible evidence. The fact that the jurors did not come to a conclusion that favors defendant's version of the incident does not mean that the court deprived him of a fair trial.

Having considered appellant's additional arguments, we find them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.