STATE OF NEW JERSEY v. THOMAS M. WAGNER

NOT FOR PUBLICATION WITHOUT THE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.

THOMAS M. WAGNER,

Defendant-Appellant.

______________________________

July 20, 2015

Submitted January 28, 2015 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-04-00744.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Thomas M. Wagner was tried before a jury and convicted of the fourth degree offense of operating a motor vehicle during a period of license suspension for a second or subsequent conviction of driving while under the influence (DWI) of alcohol, N.J.S.A. 2C:40-26(b). The jury acquitted defendant of fourth degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). The court sentenced defendant to a one-year term of probation subject to serving a mandatory period of 180 days without parole in the Ocean County Correctional Facility.

Defendant now appeals arguing: (1) the prosecutor's comments to the jury during summation improperly impugned defense counsel's motives for exercising preemptory challenges; (2) the trial court erred in admitting an incriminating statement defendant allegedly made to two police officers without being advised of his Miranda1 rights; and (3) the court committed reversible error by allowing the State to impeach his credibility with a thirteen-year-old conviction for theft. We reject these arguments and affirm.

We gather the following facts from the record developed before the trial court.

Gabriele Barrett testified that on November 3, 2011, she was driving her mother's Crown Victoria on Cedarbridge Road in the Township of Lakewood. At approximately 4:30 p.m., she stopped at a red light and was struck from behind by another vehicle. She stepped out of her car to determine if the impact had caused any damage to her car. After confirming her car had been damaged,2 Barrett returned to her car and "motioned that [she] was pulling over." She wrote down the other vehicle's license plate number after she pulled over.

In response to the prosecutor's questions, Barrett described the driver of the car that struck her from behind as a white male between twenty-five and thirty-five years old, with a "[c]lose cut haircut, [and] sunglasses." When the driver did not pull over, Barrett called 911 to report the accident as well as the other driver's failure to remain at the scene. Barrett testified that police officers arrived at the scene approximately ten minutes after she called 911.

The license plate number provided by Barrett identified the vehicle as a minivan registered to defendant's wife, Amy Wagner. On November 21, 2011, Lakewood Police Officers David Silberstein and Anthony Caraballo reported to the Lakewood address listed as Amy Wagner's residence. Silberstein testified that upon arriving, he saw a metallic green "2002 Honda Odyssey parked in the driveway." Defendant responded to the officers' knock on the house's front door.

Silberstein testified he and Caraballo identified themselves to defendant as Lakewood Police Officers "investigating a hit-and-run with the vehicle parked in the driveway which was registered to his wife, that the license plate was provided by the person whose vehicle was struck and it matched the description of the vehicle." According to Silberstein, defendant indicated that "to his knowledge" his wife's car had never been in an accident. He also said he "doesn't drive." Caraballo testified that when he looked more closely at the minivan, he detected "[t]hat the front bumper of the van didn't match the paint exactly as the factory color would, had some orange peel to it and it was a little bit, not as shiny, not as clear."

Based on these observations, Silberstein and Caraballo decided to visit local Honda dealers to ask whether anyone had recently purchased any of the parts involved in the accident or had requested repairs to this area of a car. When this approach did not yield any results, they decided to visit Norwood Auto Parts, a local auto parts store. They asked the attendant "if anybody came in there looking to purchase parts for a 2002 Honda Odyssey[.]" Although the attendant did not remember any purchases fitting this description, the store manager remembered "someone coming in and purchasing parts" for a metallic green 2002 Honda Odyssey. When asked why the store manager would recall such a routine transaction, Silberstein responded

Yeah, because of the cost of the paint. I don't believe he charged him full price, but I believe he stated the paint for that vehicle was over a hundred dollars a pint and he couldn't understand why someone would buy or spend that much money to paint the bumper on the car that was that old at that point.

The store manager provided the officers with the invoice for the paint and a credit card receipt in the name of Amy Wagner, but signed by defendant. There was also a separate invoice and credit card receipt "for a bumper repair kit." Christopher Kasyan, the manager of the Norwood Auto Parts store, also testified at trial as part of the State's case in chief. Kasyan's testimony not only corroborated Silberstein's testimony in all material respects, but he also provided the evidential foundation for the admission into evidence of the credit card receipts and auto parts invoices referred to by Silberstein in his direct testimony.

Armed with this information, Silberstein and Caraballo returned to defendant's residence. When Amy Wagner answered the front door, the officers told her they were there to speak with her husband. Defendant came to the door, and at the officers' request, stepped outside to speak with them. Silberstein testified that he informed defendant they had probable cause to believe he had been involved in the November 3, 2011 hit-and-run accident and handed him a summons reflecting the charge.

According to Silberstein, as he and Caraballo were walking away,

[defendant] starts saying that he was driving, he had a mandatory urine screening he had to be at in Bricktown, he had no choice but to drive. He knew his license was suspended, and that because his license was suspended, he didn't think there was much damage to the vehicle, he left because he didn't want to have more trouble basically.

Despite these allegedly unsolicited admissions warranting defendant's arrest, Silberstein testified they decided "to cut him a break and we didn't want his family to try to bail him out of jail before Thanksgiving[.]"3 The State rested its case in chief at the conclusion of defense counsel's cross-examination of Officer Caraballo.

In addition to his own testimony, defendant called four witnesses at trial, his brother Robert Wagner, Kerry McBride, the owner of McBride Awning Company in Point Pleasant Beach and defendant's employer in November 2011, his father-in-law Albert Campbell, and Michael Derling, a man who hired defendant in 2012 to repair his 2005 Honda Civic. The only witness who provided material testimony refuting the State's case was defendant's brother, Robert Wagner.

Defendant s brother testified that he was the person who was driving the Honda Odyssey minivan on November 3, 2011, when it struck the rear of the Crown Victoria driven by Gabriele Barrett. He claimed he borrowed his sister-in-law's vehicle that day because his own car, a 2000 Chevy Blazer, had "broken down." At the request of the prosecutor, the trial judge advised the jury that at the time Robert Wagner testified in this trial on May 14, 2013, he could not be charged with the offense of leaving the scene of an accident as a matter of law, because the statute of limitations had run.

Defendant testified in his own defense. He admitted that in November 2011 he did not have a valid driver's license because his license had been suspended for driving while intoxicated. He denied he was the person driving his wife's minivan on November 3, 2011. He explained that his purchases from the Norwood Auto Parts store were for the repairs he planned to perform on Derling's 2005 Honda Civic.

Defendant also denied saying to Officers Silberstein and Caraballo that he had driven the Odyssey minivan on November 3, 2011. Defendant testified, "[t]he only thing I had simply said was that I had I.D.R.C. class4 that I had to do and I only had one or two more screenings left and I was done with all that." He admitted, however, that when he was "approximately 18 or 19 years old" he was convicted of a crime. According to defendant, although there were "many of us that were part of what had happened[,] . . . only two of us ended up getting any charges." He was sentenced to a two-year term of probation after he failed to abide to the conditions by the Pretrial Intervention Program.5 When asked when this occurred, defendant answered, "[i]t was pre[-]2000. I'm going to say [1999]."

Against this evidential backdrop, defendant now appeals raising the following specific arguments

POINT I

THE PROSECUTOR DELEGITIMIZED DEFENDANT'S RIGHT TO PEREMPTORY CHALLENGES.

POINT II

DEFENDANT'S MOTION TO SUPPRESS HIS ORAL STATEMENTS MADE ON NOVEMBER 23, 2011, SHOULD HAVE BEEN GRANTED BECAUSE THE ENCOUNTER BETWEEN DEFENDANT AND THE TWO POLICE OFFICERS WAS THE FUNCTIONAL EQUIVALENT OF A CUSTODIAL INTERROGATION THAT WAS DESIGNED TO ELICIT AN INCRIMINATING STATEMENT BY DEFENDANT.

POINT III

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN RULING THAT DEFENDANT'S PRIOR CONVICTION WAS ADMISSIBLE TO IMPEACH CREDIBILITY.

POINT IV

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE PROSECUTOR IMPROPERLY BOLSTERED THE CREDIBILITY OF OFFICER SILBERSTEIN IN HIS SUMMATION.

Although we are satisfied that none of defendant's arguments have sufficient merit to warrant extensive discussion in a written opinion, Rule 2:11-3(e)(2), we will briefly address them. In Argument Point I, defendant claims the prosecutor's summation to the jury included remarks that "delegitimized" defense counsel's use of peremptory challenges. Defendant specifically objects to the prosecutor's following remarks

Now, before I get into the facts of the case . . . you all collectively stood up, raised your hands to take an oath for, I just want to tell you something

If you recall back in jury selection, we both had an opportunity to strike a number of jurors. In fact, her Honor told you that was our duty to do so. If you recall, I didn't strike anybody over here; okay? And that's what I kind of want to make a point for you guys to understand, and please bear with me. The legal system over here, the jury system is probably one of the greatest things we have here in the United States. It has [twelve] random people that come in and try to determine what's truthful, what's evidence, what's right, what's fair, okay.

[(Emphasis added).]

Defense counsel objected while the prosecutor was still delivering his summation on an unrelated point. After addressing that unrelated point, defense counsel also objected to what he viewed as the prosecutor's "[implication] that I had done something wrong in questioning my client's rights to, for an unbiased jury." The trial judge noted that, in his view, all the prosecutor said was that he did not remove any jurors because he was satisfied with twelve random people. We agree with the trial judge that this isolated remark by the prosecutor was not capable of impugning the motives of defense counsel or casting a shadow of impropriety on defendant's use of peremptory challenges.

Although the prosecutor's remarks were not so egregious as to deny defendant the right of a fair trial, see State v. Nelson, 173 N.J. 417, 462-63 (2002), we do find the comments were ill-advised. It is not unreasonable for defense counsel to conclude that by shining a light on his own conduct during the jury selection process, the prosecutor was implying defense counsel's use of peremptory challenges improperly tilted the scale in defendant's favor through gamesmanship or less than honorable means. We are also compelled to note the prosecutor's reaction to defense counsel's timely objections. The record shows the prosecutor was annoyed that defense counsel interrupted his summation and characterized defense counsel's actions as "very disruptive" and "very disrespectful."

We take this opportunity to express our unequivocal approval of the manner in which defense counsel acted in this respect. In order to determine whether the particular objection is sufficiently egregious to warrant reversal, an appellate court "must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks [be] stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999).

Under the principles the Court established in Frost, an attorney is expected to make timely objections during summations to permit the trial judge to assess the situation and take immediate and effective corrective measures, as the situation may warrant, to prevent a mistrial. A timely objection also permits the errant attorney to take his or her own corrective measures and redirect the argument to a proper course. A timely and proper objection during summation is not unprofessional or discourteous to a fellow attorney; rather, it is an obligation a competent attorney owes to his or her client. To be clear, we do not endorse baseless objections intended to disrupt an adversary's argument. We are confident our colleagues at the trial level know how to distinguish between proper and zealous advocacy and unprofessional disruptive misconduct. Defense counsel's objection here illustrates the former.

Defendant's argument as reflected in Point II is utterly without merit. The officers did not have a duty to inform defendant of his rights under Miranda because defendant was not in their custody. State v. O'Neal, 190 N.J. 601, 615 (2007). Defendant spontaneously uttered the self-incriminating statement without any form of solicitation or provocation from the two police officers. The statement was thus properly admitted by the trial court. State v. Cryan, 363 N.J. Super. 442, 453 (App. Div. 2003).

Finally, the trial court properly exercised its discretionary authority under N.J.R.E. 609 to permit the prosecutor to impeach defendant's credibility based on his third-degree theft by unlawful taking conviction, which involved dishonesty and fraud and was particularly relevant to his veracity. See State v. Pennington, 119 N.J. 547, 587 (1990).

Affirmed.

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

2 Photographs depicting the condition of Barrett's car after the accident were published to the jury without objection.

3 It is undisputed this encounter between defendant and Officers Silberstein and Caraballo occurred on Wednesday, November 23, 2011, the day before Thanksgiving.

4 I.D.R.C. stands for Intoxicated Driver Resource Center. Participation in the substance abuse treatment programs provided in these centers is a mandatory part of the sentence imposed by the court for a conviction for DWI. N.J.S.A. 39:4:50(a)(1). Local I.D.R.C. s also serve as community treatment referral centers and as court monitors of a person's compliance with the ordered treatment. N.J.S.A. 39:4-50(f).

5 Pretrial Intervention Program is a "diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995).