STATE OF NEW JERSEY v. SHAREEF K. MAYFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAREEF K. MAYFIELD, a/k/a

SHAREEF BARBOSA, SHARIF EDGE,

SHARIF K. MATFIELD and

SHARIF MAYFIELD,

Defendant-Appellant.

____________________________

October 18, 2016

Submitted September 21, 2016 Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-05-0425.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Shareef K. Mayfield was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1; and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). The trial judge granted the State's motion and sentenced defendant to an extended term of eighteen years. The judge also imposed a 160-month period of parole ineligibility.

On appeal, defendant raises the following contentions

POINT I

THE TRIAL COURT'S DECISION NOT TO GRANT A PRETRIAL HEARING TO DETERMINE THE ADMISSIBILITY OF THE IDENTIFICATION WAS ERRONEOUS BECAUSE [DEFENDANT] SHOWED IMPERMISSIBLE SUGGESTIVENESS IN THE SHOWUP IDENTIFICATION PROCEDURE USED.

POINT II

THE TRIAL COURT'S SUA SPONTE CHARGE REMINDING THE JURORS THAT THE STATE RELIED ON CIRCUMSTANTIAL EVIDENCE IN ADDITION TO IDENTIFICATION TESTIMONY IMPROPERLY BOLSTERED THE STATE'S CASE, IN VIOLATION OF [DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST.[,] AMENDS. V, VI[,] XIV; N.J. CONST.[,] [], ART. I, [ ] 1, 9, 10.)

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM OF [EIGHTEEN] YEARS AND IN FAILING TO EXPLAIN ITS SENTENCING DECISION.

POINT IV

EVEN IF A REMAND IS NOT REQUIRED FOR A RESENTENCING, THIS COURT SHOULD DIRECT THE TRIAL COURT TO CORRECT THE LENGTH OF THE PAROLE INELIGIBILITY TERM.

We affirm defendant's conviction and eighteen-year sentence, but remand for the court to determine the correct period of parole ineligibility.

I.

We derive the following facts from the record. While patrolling in a marked patrol car at 3:15 a.m. on January 18, 2012, Police Officers Thomas Wingate and Carlos Graca of the Hillside Police Department saw a gray, four-door Chrysler Sebring run a stop sign on Hillside Avenue near the Route 22 east ramp. Wingate saw a male driver and a female front seat passenger inside the vehicle. Wingate activated the patrol car's overhead lights and siren and stopped the Sebring in a well-lit area on Hillside Avenue, intending to issue a summons. He stopped within a foot directly behind the Sebring, and notified police headquarters of the stop. Police Officers Daniel Wanat and Joseph Vetter then arrived at the scene in their marked patrol car.

After confirming the Sebring's make, model, and license plate number and that it was not stolen, Wingate and Graca exited their patrol car. Wingate approached the driver's side and Graca approached the passenger side, both using their flashlights to illuminate the vehicle's interior. They saw a bald-headed, slightly husky African-American male in the driver's seat, who was not wearing his seatbelt, and a short-haired African-American woman in the front passenger seat. There were no passengers in the back seat.

Wingate came within a foot of the driver's side door and got "a good look" at the driver. Before he could speak to the driver, the driver sped away toward Route 22. Wingate and Graca ran back to their patrol car and signaled Wanat and Vetter to begin pursuing the Sebring. Wanat and Vetter immediately pulled behind the Sebring with their patrol car's overhead lights and siren activated and pursued it onto Route 22, followed by Wingate and Graca, who also had their patrol car's overhead lights and siren activated.

The pursuit reached dangerous speeds, so the officers decided to end it for safety reasons. As the Sebring continued into Union Township, Wingate and Graca notified the Union Township Police Department to look out for the vehicle. Within seconds, Union Township Police Officer Michael Theissen and Officer Kiselow1 saw the Sebring stopped in a grassy area crashed over a curb on Route 22 near Vauxhall Road. As they stopped behind the vehicle, they saw the driver, a "kind of stocky, bald head[ed]" African-American male, exit the driver's side, and an African-American female exit the passenger's side. Both individuals fled. Theissen chased the driver across a grassy area, into a Garden State Parkway service area, and then across the Parkway. During the chase, Theissen fell and injured his right knee; however, he never lost sight of the driver and kept his flashlight trained on him as the driver ran and eventually tried to hide on the ground.

While chasing the driver, Theissen radioed information about the chase. Officer Timothy Ford responded to the scene. Using his radio and flashlight, Theissen guided Ford to the driver, who was lying on the ground and extremely out of breath, and then watched as Ford apprehended him. Ford handcuffed the driver, searched him, and found numerous wax paper folds containing suspected heroin, which Ford placed back into the driver's pocket. Ford placed the driver in his patrol car and returned to Vauxhall Road. At trial, Ford identified defendant as the individual he apprehended.

The Union Township police notified the Hillside police via radio transmission that they had "the gentleman" in custody that the Hillside police were pursuing. Wingate and Graca responded to Vauxhall Road, where Wingate recognized the Sebring by its color, model, and license plate number, and also recognized defendant as the driver he saw in the Sebring. Custody of defendant was transferred to Wingate. Wingate searched defendant and found eight folds of suspected heroin on his person. Wingate testified at trial that the entire ordeal lasted only four or five minutes, and that he was "a hundred percent positive" the man the Union Township police had in custody was the individual driving the Sebring he had stopped moments earlier.

II.

Prior to the trial, defendant requested a Wade2 hearing to determine the admissibility of Wingate's out-of-court identification. Defendant argued that the radio transmissions from the Union Township police were impermissibly suggestive and the identification was unreliable.

The trial judge found that the out-of-court identification was made within minutes of defendant fleeing law enforcement, and made by a trained police officer during the course of his duties. The judge determined that the Union Township police transmissions were not so suggestive that they could lead to a mistaken identification, especially when considering the totality of the circumstances. The judge concluded defendant failed to show evidence of suggestiveness that led to a mistaken identification. On appeal, defendant reiterates the arguments made to the trial judge.

In order to obtain a pretrial hearing on the admissibility of an out-of-court identification, the defendant must show some evidence of suggestiveness that could lead to a mistaken identification. State v. Henderson, 208 N.J. 208, 288 (2011). The defendant must prove a "very substantial likelihood of irreparable misidentification[.]" Id. at 289.

To evaluate whether there is evidence of suggestiveness to trigger a hearing, the court should consider so-called "system variables," which include whether: there was a "blind administration" of the photo array or lineup; the pre-identification instructions were neutral; the array or lineup contained only one suspect embedded among at least five innocent fillers; the witnesses received any feedback about the subject during the procedure; and the person performing the identification recorded the witness' confidence immediately after the identification. Id. at 289-90.

If there is some actual proof of suggestiveness, the trial court should consider various "estimator variables" in determining the "overall reliability" of the identification. Id. at 291. Those variables include stress; visibility of a weapon; duration of time the witness had to observe the event; distance from the perpetrator and lighting conditions; the influence of alcohol or drugs; characteristics of the perpetrator; memory decay; and race-bias. Id. at 291-92.

"[T]he State must then offer proof that the identification is reliable accounting for system and estimator variables subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless." Id. at 289. "'Reliability is the linchpin in determining the admissibility of identification testimony.'" State v. Micelli, 215 N.J. 284, 292 (2013) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1997)). To assess the reliability of an identification, the court should consider "'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Ibid. (quoting State v. Herrera, 187 N.J. 493, 503 (2006)).

"[I]f after weighing the evidence a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence." Henderson, supra, 208 N.J. at 289. If the evidence is admitted, the court should provide the appropriate jury instructions. Ibid.

Here, defendant failed to prove a very substantial likelihood of irreparable misidentification to warrant a Wade hearing. Assuming there was some actual proof of suggestiveness, the State offered proof the identification was reliable. Wingate had a good look at defendant at the scene of the stop, he positively identified defendant as the driver of the vehicle he had stopped, and mere minutes elapsed between the stop and the identification. Accordingly, the trial judge properly denied a Wade hearing.

We need not express our view of the theory that trained police officers are less likely than average citizens to be influenced by a suggestive identification procedure. The new methodology of Henderson which announced the Court's expectation that the "vast majority" of challenged out-of-court identifications will be examined by juries rather than screened by trial judges, 208 N.J. at 303 compelled the denial of defendant's request for a Wade hearing. The reliability and persuasiveness of the evidence offered by the State to identify defendant as the driver of the Sebring was a matter for the jury.

III.

There were other witnesses in addition to Officers Wingate and Theissen who identified defendant; however, those witnesses did not specifically identify defendant as the driver of the Sebring. Prior to giving the eyewitness instruction, the judge explained that the instruction applied only to the identifications made by Wingate and Theissen. The judge then read Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2012). The judge added that in addition to eyewitness identification, the State relied on circumstantial evidence showing that: the vehicle's owner had loaned the Sebring to defendant the evening he was stopped; defendant was in possession of the Sebring earlier on the evening of the stop and was found near the scene and identified as having run from the vehicle; and defendant was then apprehended at a nearby location. Defendant contends in Point II that the additional instruction improperly bolstered the State's case. We disagree.

"'Appropriate and proper jury charges are essential to a fair trial.'" State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give 'a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" Id. at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party.'" Ibid. (quoting Reddish, supra, 181 N.J. at 613). "Because proper jury instructions are essential to a fair trial, 'erroneous instructions on material points are presumed to' possess the capacity to unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

"[I]t is often important to mold jury instructions so that the jury clearly understands how the evidence in [the] case relates to the legal concepts addressed in the charge." State v. Gentry, 439 N.J. Super. 57, 72 (2015) (citation omitted). In Gentry, we held that

Model jury charges are often helpful to trial courts performing this important function. However, it is not always enough simply to read the applicable provision of the Criminal Code, define the terminology, and set forth the elements of the crime. An instruction that is appropriate in one case may not be sufficient for another case. Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case.

In this regard, it is well settled in our State that the trial judge has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as he clearly leaves to the jury . . . the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them. Incorporating specific evidentiary facts into a jury charge is especially helpful in a protracted trial with conflicting testimony.

[Ibid. (quoting State v. Concepcion, 111 N.J. 373, 379-80 (1988)).]

We apply a harmless error analysis where, as here, a defendant objects to a charge. Baum, supra, 224 N.J. at 159; see also R. 2:10-2. "Under that standard, there 'must be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" Ibid. (quoting State v. Lazo, 209 N.J. 9, 26 (2012)). "'The test to be applied . . . is whether the charge as a whole is misleading, or sets forth accurately and fairly the controlling principles of law.'" Ibid. (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998)).

We discern no error in the eyewitness identification charge. The charge was accurate on the law and the evidence, and it did not misinform or mislead the jury. The judge correctly explained to the jury that the eyewitness identification charge pertained to the identifications made by Wingate and Theissen only, as they were the only witnesses who actually saw defendant as he committed the crime of eluding. The judge properly molded the instructions to the evidence, and left the ultimate decision to the jury.

IV.

Defendant contends in Point III that the judge abused his discretion in imposing an extended-term sentence and in failing to explain his sentencing decision. We disagree.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

We have considered defendant's contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant did not dispute he was eligible for an extended-term sentence. Accordingly, we affirm substantially for the reasons the judge expressed at sentencing. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

V.

Finally, defendant contends in Point IV that even if we affirm his sentence, we must remand to correct the period of parole ineligibility. We agree.

At sentencing, the judge imposed a 160-month period of parole ineligibility; however, the judgment of conviction recites a ninety-six-month period of parole ineligibility. The imposition of a 160-month period of parole ineligibility, or 13.33 years, is an illegal sentence. The maximum term of parole ineligibility in this case is fifty percent of the term, which is 108 months, or nine years. See N.J.S.A. 2C:43-7(b). Thus, we remand this matter to the trial court to determine the correct period of parole ineligibility and amend the judgment of conviction, if necessary.

Defendant's conviction and eighteen-year sentence are affirmed; the matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 The record does not reveal Officer Kiselow's first name.

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).