STATE OF NEW JERSEY v. ROBERT G. CASON

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT G. CASON, a/k/a ROBERT GUY

CASON, R GUY CA'SON, ROBERT GUY

CASOM and JAMES WILSON,

Defendant-Appellant.

___________________________________

June 18, 2014

Submitted May 14, 2014 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-03-0374.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Robert G. Cason was tried to a jury on charges of second-degree eluding, N.J.S.A. 2C:29-2b, and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a). At the conclusion of trial, the judge submitted the case to the jury on those charges and the lesser-included disorderly persons offense of resisting, which, unlike the third-degree crime, does not require proof that the defendant used or threatened the use of physical force or violence in resisting. N.J.S.A. 2C:29-2a(1). The jury found defendant guilty of eluding and the disorderly persons offense.

The judge sentenced defendant to the following terms of imprisonment: for second-degree eluding, as authorized by N.J.S.A. 2C:44-1f(2), a three-year term within the third-degree range; for the disorderly persons offense, a concurrent six-month term. He also imposed the appropriate fines, penalties and assessments.

On the evening of December 21, 2008, Officer Gary Bracht of the Old Bridge Police Department was checking the license plates of vehicles leaving a store's parking lot against computerized records. When Bracht checked the plate of the car defendant was driving, he found that the driver's license of the car's registered owner was suspended. Consequently, Bracht followed the car. When he reached an area of Route 9 where defendant could safely pull over, Bracht activated the police car's lights to signal the driver to stop. Defendant did not pull over so Bracht used the siren several times. Still ignoring the signals, defendant drove into another lane of traffic and drove around two cars whose drivers were heeding a stop sign and signaling their respective intentions to turn in opposite directions at the intersection. Defendant turned ahead of them without stopping.

Bracht pursued defendant, and defendant continued to ignore him. Although defendant did not drive at an excessive speed, he went through another stop sign, crossed double-yellow lines, and drove into a lane for traffic moving in the opposite direction to pass other vehicles. Defendant finally stopped at an apartment complex where he lived.

At the complex, defendant did not leave his car as Bracht expected. Following protocol, Bracht drew his gun in the event defendant was armed. Defendant asked Bracht why he stopped him and accused him of making a stop based on defendant's race. Bracht directed him to get onto the ground. But instead of complying, defendant, cursing, directed the officer to get on the ground. Defendant also raised his arms and assumed a combative stance.

Bracht did not see anyone else in the vicinity even though he was "scanning around." Volunteering an explanation for his scanning at trial, Brach said, "It's a well-known area for some - the area is not police friendly."

Bracht had radioed for assistance, and when another officer arrived, defendant continued to refuse commands to get down. He turned away from Bracht and toward the second officer. As defendant did that, Bracht struck the back of his leg with a baton, and defendant came at him "with a fist." Defendant did not yield to the arrest until the officers had used pepper spray and struck him on his legs and arm.

Defendant calmed down at police headquarters. Although he was advised in conformity with Miranda1 at the time of his arrest and at police headquarters, defendant apologized to Bracht. He said, "I'm sorry. I knew that I was suspended and had a warrant, but I wanted to get my car home." The suspension and warrant was for non-payment of traffic tickets.

During his testimony at trial, defendant admitted to driving on an expired license. He claimed that he did not know that there was a warrant for his arrest on unpaid tickets and had not received a notice advising him of his delinquent payments. Defendant also testified that he was aware that the officer signaled him to stop before he drove around the two cars at the stop sign to make a turn. He explained that he just wanted to get the car home to his wife so he would not have to deal with it being towed.

Prior to trial, the judge conducted a hearing on the admissibility of defendant's apology, including the reference to the outstanding warrant, which was for non-payment of traffic tickets and not for reckless driving. During argument at the conclusion of the N.J.R.E. 104 hearing, the relative probative and prejudicial value of the testimony about the outstanding warrant was discussed. Defense counsel represented that the warrant was for failure to pay a traffic ticket.

Referring to the prejudicial impact of the warrant on the defense the judge said, "I don't see it as long as . . . you have the basis of the warrant and why." Defense counsel said, "That's fine." The judge elaborated, explaining that defendant was not a wanted criminal and the warrant was "[n]ot [issued] because he drove reckless[ly]." Defense counsel said, "That's my only fear, Judge. I agree with you, sir." Clarifying, the judge said, "As long as you have that. We're good. All right. Guys, I'll see you later." The prosecutor said all right and thanked the judge, and defense counsel said nothing.

The warrant was addressed in opening statements. In her opening, the prosecutor said that defendant's license was suspended and that he had "a Municipal Warrant for unpaid tickets." In defense counsel's opening, he said that defendant owed $300 on a ticket, was making timely payments and knew his license was suspended.

Defendant presents two issues on this appeal:

I. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL

BY THE COURT'S RULING PERMITTING TESTIMONY THAT HE HAD AN OUTSTANDING WARRANT FOR HIS ARREST. (Partially Raised Below).

II. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL

BY THE OFFICER'S GRATUITOUS TESTIMONY THAT THE HOUSING COMPLEX WHERE HE RESIDED WAS NOT A "POLICE-FRIENDLY AREA."

After reviewing the record in light of the arguments presented, we have concluded that they have insufficient merit to warrant discussion beyond the brief comments that follow.

R. 2:11-3(e)(2). The judge did not abuse his discretion in concluding that N.J.R.E. 404(b) did not require exclusion of the defendant's admissible statement about the warrant on the condition that the State explain the basis for its issuance. See N.J.R.E. 803(b); N.J.R.E. 404(b); State v. Rose, 206 N.J. 141 (2011). As the judge found, the existence of an arrest warrant was relevant to defendant's motive and intent and the condition the judge had imposed requiring disclosure of the reason for issuance of the warrant eliminated any unfair prejudice. Rose, supra, 206 N.J. at 161-67.

Even if we were to conclude that the judge abused his discretion, the doctrine of invited error would apply to bar our consideration of the objection defense counsel effectively withdrew in the trial court when the judge ruled that defense counsel could cross-examine about the reason the warrant was issued. State v. A.R., 213 N.J. 542, 561-64 (2013).

With respect to defendant's claim regarding Bracht's unresponsive, vague and brief comment referring to the neighborhood as being unfriendly to police, the trial judge noted the officer might well have offended jurors who lived in the complex in the past, and he offered to give a curative instruction that defense counsel deemed unnecessary. Given the nature and brevity of that testimony and the strength of the State's evidence, we have no doubt that Bracht's comment was a remark clearly incapable of producing an unjust result. R. 2:10-2. For that reason alone, he is not entitled to relief.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).