STATE OF NEW JERSEY v. CURTIS R. BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02476-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CURTIS R. BROWN, a/k/a

CURTIS SMITH,

Defendant-Appellant.

________________________________

May 11, 2015

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-09-0684.

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

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Curtis R. Brown of second-degree eluding, N.J.S.A. 2C:29-2(b), and he was sentenced to eight and one-half years in prison. He was also convicted in a simultaneous bench trial of thirteen motor vehicle violations. Because the State introduced unexpected hearsay testimony of defendant's ownership of the car, we reverse.

The trial revealed the following facts. On the evening of August 14, 2012, two Franklin Township police officers, Richard Livingston and Leonard Bird, were in uniform and on patrol in a marked car when they observed a white Mercury Marquis speeding at dusk, without lights on and without license plates. The area was a mixed commercial-residential neighborhood with heavy pedestrian traffic and had a posted speed limit of twenty-five miles per hour. Both officers testified that the Marquis appeared to be travelling at forty miles per hour.

Livingston, the driver, turned on the patrol car's emergency lights and sirens, and began to pursue the Marquis, which did not pull over. When the Marquis accelerated, the patrol car accelerated to keep pace. Livingston observed the Marquis switch lanes and run through a stop sign, even though there were pedestrians on the street and sidewalk as well as "quite a few people [who] were trying to go in between parked cars" along the side of the road.

Livingston, to avoid colliding with the Marquis when it stopped at a traffic light, pulled the patrol car up to the driver s side of the car. The officers were able to observe the Marquis' driver for a few seconds. Livingston testified that it was "[l]ong enough for him to see us and us to see him." Bird testified that their cars were three or four feet apart: so close that their "side view mirrors were almost touching." Bird stated, "I looked over at the driver of the suspect vehicle, and he looked at me . . . ." Bird testified that he saw the driver's face clearly.

About one-half mile later, the Marquis turned and headed toward New Brunswick. The Franklin officers stopped the chase and a description of the Marquis was then provided over the Middlesex County hotline.

Later that evening, the Franklin officers were told that the East Brunswick police had stopped a white Marquis and arrested its driver who had been "in a pursuit and a collision" in East Brunswick. The Franklin officers went to the East Brunswick police station the night of the arrest, and Bird identified defendant in the holding cell as the driver of the white Marquis. He also identified defendant in court. The officers identified the impounded Marquis as the car they had been chasing.

Livingston testified that Bird checked the car's vehicle identification number (VIN) and determined that the car had not been stolen. At trial, when asked if the car was "evidently recently purchased by [defendant,]" Livingston replied, "Yes, sir." When asked if the car had been purchased "[t]oo recently to be on record as having been purchased . . . [,]" Livingston replied, "Yes, sir."

Defendant did not testify at trial or produce any witnesses. Although his lawyer did not deny that defendant drove the white Marquis stopped by the East Brunswick police, he argued that defendant had not been driving the car chased by the Franklin police hours earlier.

The third-degree crime of "eluding" is defined, in pertinent part, as being committed by a driver who "knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop . . . ." N.J.S.A. 2C:29-2(b). "[A] person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person." Ibid.

The statute continues: "[I]t shall be a rebuttable presumption that the owner of a vehicle . . . was the operator of the vehicle . . . at the time of the offense." Ibid. This permissible inference is included in the Model Jury Charge (Criminal), "Eluding an Officer (Second and Third Degree)" (2004), which also states: "You may infer risk of death or injury to any person if the defendant's conduct in fleeing or attempting to elude the officer involved a violation of the motor vehicle laws of this State . . . ."1

Livingston testified on direct examination that defendant had recently purchased the white Marquis. While Livingston was testifying, the judge asked the prosecutor to ask Livingston how the officer had learned that the car was recently purchased by defendant. Livingston replied, "[W]e contacted the last known registered owner . . . and he said that he had sold it." When the judge asked if the former owner could identify the purchaser, defense objected on the grounds of hearsay.2 The objection was sustained. During cross-examination, Livingston acknowledged that the name of the previous car owner was not listed in any of the police reports. After the jury was dismissed for the day, defense counsel stated that information about the Marquis' ownership "came as a complete and total surprise, not provided anywhere in discovery . . . ."

The next day, during the charge conference, the trial judge told counsel that he had been "advised" by the prosecutor that eliciting the "ownership" testimony was a "prophylactic effort to protect [defendant] from a possible inference that the jury may draw that the car was stolen[,] [which] would be seriously prejudicial to [defendant]."

Defense counsel sought a mistrial, stating

I certainly understand the [c]ourt's difficulty in granting a mistrial, but I think that a curative instruction often highlights the problem with the testimony, so I would request a mistrial. But in lieu of that, I would request some type of charge by the [c]ourt that [the testimony concerning the car's alleged ownership] should be struck.

The judge denied the application for a mistrial, stating that "an appropriate and strong curative instruction will neutralize any potential harm done, and does not manifestly require, under these circumstances, declaration of a mistrial." The judge decided to strike the "ownership" testimony and eliminate the jury charge that contained the permissible inference of vehicle operation based on vehicle ownership.

At closing, defense counsel stated, "[C]ommon sense and understanding of how people behave dictates in this particular matter that the person who drove at approximately 8:20 to 8:30 that evening in Franklin would not be in the car four hours later." The State argued: "This case relies upon Officer Bird's testimony and your faith in it. If you think [he] is mistaken about his identification of [defendant] as the driver of the white Mercury Marquis in Franklin Township that night, then that will be your determination."

During jury instructions, the judge made the following comments concerning the stricken testimony

[Y]ou have heard Officer Livingston's testimony related to ownership of the motor vehicle. My recollection is that [he] testified that he made inquiry to determine whether the car was stolen and determined it was not stolen, and then based upon my suggestion, [the prosecutor] asked Officer Livingston what was the basis for his conclusion as to ownership of the vehicle? And Officer Livingston said something to the effect, ["]I don't know whether it was me or Bird, but . . . based upon the vehicle identification number, we got ahold of the previous owner and he said he had sold the car to [the defendant"].

Now, the problem with that, and the problem was created by me. I invited testimony of Officer Livingston [that was] hearsay. Hearsay is something that somebody else told him. He's telling you that the previous owner of the motor vehicle said: ["]I sold it to Mr. Brown.["]

Now, ownership of the vehicle is important, and . . . hearsay is ordinarily not admissible except under certain exceptions, because the best test of the reliability of testimony is the cross-examination of the witness giving it.

Livingston was not the source of the information. The source of that information was not available to be cross-examined. So based on my review of the record, and based upon applicable law, I have determined to instruct you to disregard any reference in Officer Livingston's testimony as to the ownership of the car, except in regard to the fact that it was not stolen.

The judge told the jury that the testimony had been stricken because "you might be tempted to infer that if [defendant] owned the car, he was operating the car." The judge stated that this was an impermissible inference. The judge continued: "[Y]ou're going to either find that [defendant] operated that motor vehicle from the other evidence in the testimony . . . of Livingston or [Bird], or not."

During deliberations, the jury asked: to replay the video from the Franklin officers' patrol car's mobile video recorder (MVR) of the police pursuit of the Marquis; to pause at the moment in the recording when the patrol car pulled alongside the Marquis; to have a read back of Bird's testimony; and a re-instruction on "reasonable doubt."

The jury found defendant guilty of second-degree eluding. After the jury was dismissed, the judge ruled on the motor vehicle summonses, relying on the officers' testimony and the MVR to reach his determinations. The judge found defendant guilty of thirteen of the twenty motor vehicle violations charged.

Defendant raises the following issues on appeal

POINT I: THE TRIAL COURT S REFUSAL TO GRANT DEFENSE COUNSEL S MISTRIAL MOTION BASED ON THE STATE S UNANTICIPATED PRESENTATION OF EVIDENCE OF THE CAR S OWNERSHIP CONSTITUTED REVERSIBLE ERROR.

POINT II: INTRODUCTION OF TESTIMONY CONCERNING THE CAR S OWNERSHIP DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE RIGHTS PURSUANT TO THE CONFRONTATION CLAUSES IN BOTH CONSTITUTIONS. (Not raised below.)

POINT III: THE EIGHT-AND-[ONE]-HALF YEAR TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

We briefly set forth the principles that guide our review of the main issue. The decision whether to grant a mistrial is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 647 (1984)), certif. denied, 149 N.J. 142 (1997). A judge's ruling will not be disturbed unless there is an abuse of discretion. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

"Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242, 892 (2006). An erroneous jury charge not objected to at trial will be upheld if it is incapable of producing an unjust result and does not prejudice any substantial rights. Id. at 374.

Unfortunately, just as defense counsel feared when asking for a mistrial, the judge's curative instruction actually reinforced to the jury the importance of the ownership of the car as well as the fact that the police had determined that defendant owned the car. There is a presumption that "the jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012)(citing State v. Loftin, 146 N.J. 295, 390 (1996)), cert. denied, Smith v. New Jersey, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "A curative instruction . . . attempts to erase the inadmissible evidence from the mind of the finder of fact entirely[.]" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 105 (2014). The difficulty here is that the judge's instruction, as a practical matter, repeated and solidified the importance of the inadmissible evidence. We cannot presume that this particular charge, which emphasized the inadmissible evidence, caused the jury to ignore that very evidence.

The State's case against defendant was not overwhelming. Although defendant conceded he was driving the white Marquis stopped by the East Brunswick police, the evidence that he was the driver who eluded the Franklin police several hours earlier depended on the strength of the highly suggestive show-up identification of him by the Franklin police officer. Bird identified defendant in a holding cell, knowing he was the individual stopped driving a white Marquis.

The jury could have believed that the white Marquis was the same car but still had a doubt as to whether defendant was the same driver who eluded the police. Evidence that defendant was the owner of the car greatly strengthened the inference that defendant was the earlier driver. As the judge told the jury, "ownership of the vehicle is important[.]" And as he also told the jury, they "might be tempted to infer that if [defendant] owned the car, he was operating the car."

Because evidence of defendant's ownership of the Marquis could well have been considered by the jury, we are constrained to reverse and remand for a new trial. We do not retain jurisdiction.

1 Similarly, the statute states: "[T]here shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury if the person's conduct involves a violation of chapter 4 of Title 39 . . . ." N.J.S.A. 2C:29-2(b). All of the motor vehicle violations for which defendant was convicted fell within this chapter.

2 "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Absent exceptions not applicable here, the admission of hearsay evidence at a criminal trial violates defendant's Sixth Amendment confrontation rights. Crawford v. Washington, 541 U.S. 36, 51-54, 124 S. Ct. 1354, 1364-65, 158 L. Ed. 2d 177, 192-94 (2004); State v. Kuropchak, __ N.J. __, __ (2015) (slip op. at 20-23).