Opinion
DOCKET NO. A-5389-09T3
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SALEEM DAILEY a/k/a ALI BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3856.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Saleem Dailey appeals from his conviction and sentence for second-degree eluding, challenging the court's denial of his mistrial motion, failure to give a jury instruction on identification, and imposition of an allegedly improper and excessive sentence. We affirm.
Defendant and co-defendant Terik Harris were charged in Passaic County Indictment No. 07-12-1534 on December 11, 2007 with third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count one), and defendant was charged with second-degree eluding, N.J.S.A. 2C:29-2b (count two). Essex County Indictment No. 07-11-3856 superseded the Passaic County Indictment and charged the same offenses. Prior to trial, Harris pled guilty to count one and the State dismissed that charge against defendant.
Defendant was convicted by a jury of the charge, and his motion for a new trial was denied. The following testimony and evidence was presented at trial by the State's witnesses, Fairfield Township Police Officer Frank Tracy, Little Falls Sergeant Steven Post, and East Orange Police Detectives Michael Mickens and Helet Atkins. The defense presented no witnesses.
On July 24, 2007, defendant was arrested following a high-speed car chase through several municipalities involving several different law enforcement officers serving those jurisdictions. While on patrol at about half-past midnight, Officer Tracy observed a silver, two-door BMW enter the parking lot of the Fairfield Executive Inn on Route 46 and promptly exit onto eastbound Route 46. The officer testified that he regarded this behavior as suspicious in light of an increased incidence of car thefts in the area. Officer Tracy exited the lot and turned onto eastbound Route 46 with the hopes of catching up to the BMW and running a check of its license plate. He could not catch up, however, because the BMW was traveling at an excessive rate of speed. Officer Tracy, a certified radar operator who was well-experienced with radar enforcement, estimated the BMW's speed exceeded 120 miles per hour. The driver had also turned off the lights and was driving in the left lane of the three-lane highway.
The officer radioed the information to other units and to headquarters, which put out an alert on the State Police Emergency Network. Another Fairfield police officer, east of his location and facing the highway from a parking lot, flashed his lights and used his siren in an attempt to slow or stop the BMW, but to no avail.
Sgt. Post saw the BMW speed past him without its lights on as he was entering eastbound Route 46 from Paterson Avenue. He alerted Little Falls headquarters that he spotted the vehicle, activated his overhead lights and siren, and went into the left lane and tried to catch up to the BMW. As the BMW approached the Route 46 - Route 3 divide, Sgt. Post observed from about ten car lengths behind that the BMW accelerated from about 85 or 90 miles per hour to about ll0 miles per hour, and it cut across two lanes and entered eastbound Route 3. The BMW continued traveling in the left lane and, after passing three exits, cut across four lanes of traffic to turn right onto the exit ramp to the Garden State Parkway southbound, cutting off a vehicle in the center lane. The BMW still had its lights off and never used its turn signal.
Once on the southbound Parkway, the BMW went into the left lane and accelerated to about l30 miles per hour while Sgt. Post attempted to keep up. The BMW slowed down to about 70 miles per hour at the Essex Toll Plaza, then resumed speeds of about 130 miles per hour. Sgt. Post smelled the odor of burning rubber, saw smoke coming from the BMW, and saw a tire roll from it. The BMW slowed to about 50 to 60 miles per hour and exited the Parkway at Exit 147 in East Orange, continuing southbound on North Walnut Street, and proceeding through a red light at the first intersection.
Detective Mickens heard the report and spotted the BMW turning right from North Walnut Street onto William Street. He observed the driver speeding through the area which, despite the hour, had pedestrian traffic. Detective Mickens activated his emergency lights and siren, positioning his vehicle between the BMW and the pursuing Sgt. Post, but the BMW did not stop. It remained without headlights as it continued down William Street, running red lights at the North Clinton Street, Lincoln Street, and Washington Street intersections at about 70 miles per hour. East Orange Police Lieutenant Coundry was also pursuing the BMW in an unmarked unit with its lights activated. The BMW made a right onto Hillyer Street, and a left onto State Street, finally stopping in front of 26 State Street when it struck a tree.
Detective Mickens turned the corner onto State Street and saw both doors of the BMW ajar. He stopped his car about ten feet behind the BMW and observed two men exiting it. Detective Mickens saw the driver, later identified as defendant, get out of the driver's side of the car, run around the back of the BMW, and then up a driveway on State Street. He also observed the passenger, a heavyset male about six feet tall, run down the west side of a building on State Street and into the backyard. The detective gave a description and location of the two men. Detectives Atkins and Sharice Wilson had arrived at the scene and positioned themselves in front of 85 Washington Street. Detective Atkins observed two men jump a fence, one slim and the other one heavyset. The detectives approached the men as they ran to 85 Washington Street and attempted to open the door to the residence. Defendant was identified as one of the individuals he observed.
Detective Mickens returned to the BMW, which was still running and in drive, and put it in park. The passenger's seat was pushed all the way back while the driver's seat was pushed up toward the front. The BMW's passenger's side tire was completely shredded. Detective Atkins radioed Detective Mickens and advised that the two men were in custody. Detective Mickens identified defendant at the scene as the driver of the BMW.
At sentencing on October 5, 2009, Judge Michael L. Ravin granted the State's motion for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and sentenced defendant to a fifteen-year custodial term with a seven and one-half-year term of parole ineligibility. The court imposed appropriate fines and penalties. This appeal ensued.
On appeal, defendant argues:
POINT I:Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments.
THE TESTIMONY OF SERGEANT POST WAS SO PERVASIVELY PREJUDICIAL THAT IT COULD NOT BE NEUTRALIZED BY A CURATIVE INSTRUCTION AND THE COURT'S FAILURE TO ORDER A MISTRIAL CONSTITUTES REVERSIBLE ERROR.
POINT II:
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY SPECIFICALLY ON THE ISSUE OF IDENTIFICATION AND IN REFUSING TO CORRECT THIS OMISSION WHEN GIVEN THE OPPORTUNITY TO DO SO.
POINT III:
THE SENTENCE IMPOSED IN THIS CASE WAS EXCESSIVE, BASED ON FACTS NOT PROPERLY CONSIDERED AND IN VIOLATION OF DEFENDANT'S
CONSTITUTIONAL RIGHT TO A TRIAL BY JURY, CONTRARY TO THE DECISIONS IN BLAKELY V. WASHINGTON, 524 U.S. 296[, 124 S. Ct. 2531, 159 L. Ed. 2d 403] (2004) AND STATE V. NATALE, 184 N.J. 458 (2005).
Because the State did not proceed with the receiving stolen property charge against defendant, the court directed, prior to trial, that no evidence relating to that charge could be offered. The State heeded the court's instruction in its direct examination of Officer Tracy and Sgt. Post. During cross-examination of Officer Tracy, defense counsel asked if he had "received any information indicating that this vehicle had been involved in a crime," to which the officer replied that he had not. However, on cross-examination of Sgt. Post, who was at the scene when defendant was arrested, defense counsel asked whether his department (Little Falls) or East Orange's police department took possession of the vehicle, to which he responded that it was his department. In follow-up questions, Sgt. Post said he did not take pictures of the BMW or dust it for prints, and it was not his department's responsibility to do so. Defense counsel then asked the open-ended question, "Why would it not be?" Sgt. Post gave the following explanation:
The vehicle is reported to be a stolen vehicle out of a Port in Jersey City. The
Port Authority Police Department was handling that investigation. It was also used -- while it was being taken -- there was an [] assault that occurred on a security guard from that Port at the time, so there were things that the Port Authority were investigating. New York and New Jersey [were] investigating that. Their detectives were contacted to come to process the vehicle. We did not touch the vehicle.
Defense counsel requested a mistrial and alternatively requested the court promptly give a curative instruction that the matter Sgt. Post spoke about had no connection to the case and that defendant had never been charged with those offenses. Judge Ravin denied the mistrial motion, finding, in part, that Sgt. Post's answer did not tie defendant to any illegal conduct. He promptly informed the jury there was no evidence defendant was charged with assault by the Port Authority or "any theft of [a] car or receiving stolen property anywhere" and to disregard that testimony. Defense counsel did not object to the language of the instruction. During a recess between witnesses, Judge Ravin placed on the record, outside of the presence of the jury, that in his view Sgt. Post was simply "responding to [defense counsel's] question on cross-examination" and there was nothing nefarious about his answer.
The State's final witness, Detective Atkins, testified on cross-examination that he did not use his lights or sirens while waiting in the area of Washington Street to apprehend defendant and his passenger after they scaled the fence between the two properties because "from prior stolen vehicle[] crashes within the area, they like to take that rear entrance where they crash through those yards" and they also "pop over" to Washington Street to get away. Not only did defense counsel not object to the witness' answer, but he had the officer clarify that he was not talking about this stolen vehicle and had no prior dealings with defendant.
During the charge conference, Judge Ravin asked defense counsel if he wanted him to repeat the curative instruction given during Sgt. Post's cross-examination. Defense counsel answered in the affirmative, commenting he agreed that was "a balanced response" which was "accurate." The judge reminded the jury there was no evidence tying defendant to an assault or receipt of stolen property and not to consider that testimony for any purpose. Again, defense counsel stated he had no objections to Judge Ravin's charge.
A mistrial is an "extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). The decision whether to grant this remedy or issue a curative instruction "is one that 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. Winter, 96 N.J. 640, 646-47 (1984). Accordingly, we do not reverse a trial court's denial of a mistrial motion "absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Yough, supra, 208 N.J. at 397 (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)). Equal deference is owed to the trial court when weighing the effectiveness of its curative instructions. Winter, supra, 96 N.J. at 647. "Furthermore, when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Yough, supra, 208 N.J. at 397-98 (quoting R. 2:10-2).
We discern no abuse of discretion by Judge Ravin in denying defendant's motion for a mistrial. Sgt. Post's answer was in response to a question posed by defense counsel who admitted he "made a judgment call" when he asked the open-ended question, and there was adequate basis for the judge's conclusion that Sgt. Post's response was not made in bad faith or for any nefarious purpose. Moreover, Judge Ravin promptly and effectively provided a curative instruction, which he repeated in his closing charge, which defense counsel found to be "balanced" and "accurate." We concur in that assessment.
Defendant's newly minted argument that the jury impaneled and approved by him during voir dire was incapable of rendering a fair verdict as a result of these comments because some of the jurors or their relatives had been victims of theft-related offenses is, at best, speculative. Moreover, that assumption is directly contrary to the jurors' statements under oath that such experiences would not inhibit them from being impartial jurors. We presume the jurors followed that oath.
Defendant presented the defense that none of the officers were able to observe the driver because of the excessive speed of the BMW and that Detective Mickens' identification of defendant was questionable because he had to "literally run in order to apprehend the[] two persons who were in the car." Defense counsel did not request an identification instruction and, as previously noted, after Judge Ravin gave the final charge, defense counsel stated he had no objection to the charge as given.
In his motion for a new trial, new defense counsel argued the trial defense was mistaken identity, i.e., that the passenger, not defendant, was the driver of the BMW, so the judge's failure to sua sponte provide the specific model jury charge on identification testimony resulted in an untrustworthy verdict. In a lengthy written opinion, Judge Ravin found the motion was time-barred but nevertheless addressed and rejected it on the merits. The judge was satisfied any error in not giving a separate identification charge was rendered harmless by his instructions repeatedly referencing the burden of proof and credibility of the witnesses, his eluding instruction, the significant evidence supporting the jury verdict, the defense's emphasis on Detective Mickens' credibility rather than mistaken identification per se, and the lack of evidence of confusion by the jury on the identification issue.
Defendant essentially raises the same arguments on appeal as a basis for reversal of his conviction. Defendant did not request the specific jury instruction of identification and did not object to any portion of the final charge; therefore, the court's failure to sua sponte give such an instruction requires reversal only if it can be deemed plain error. See State v. Nero, 195 N.J. 397, 407 (2008); see also R. 2:10-2 (explaining that plain error is an error "clearly capable of producing an unjust result"). When reviewing the propriety of a jury charge, we look to the charge as a whole to determine whether it was ambiguous, misleading, or legally incorrect. State v. R.B., 183 N.J. 308, 324 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). "If, on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand." State v. Setzer, 268 N.J. Super. 553, 564 (App. Div. l993), certif. denied, 135 N.J. 468 (1994).
We affirm substantially for the reasons articulated by Judge Ravin in his comprehensive written opinion. We add the following brief comments on this issue. Defendant fails to explain how he was prejudiced by the omission of the model jury charge on identification and how there is plain error in this case warranting reversal. His diatribe about "sloppy police practices" has no relevance to the issue or the case. The judge amply charged the jury on the elements of the offense, burden of proof, and credibility.
There was also overwhelming evidence that defendant was the driver. See State v. Cotto, 182 N.J. 316, 327 (2005) (holding "the strength and quality of the State's corroborative evidence rendered harmless any deficiency in the instruction and precludes a finding of plain error"). It was undisputed there were only two occupants of the BMW, defendant who is thin and Harris who is heavyset. Three different officers followed the BMW, all testifying they never lost sight of the car so it was unlikely defendant and co-defendant switched seats. Moreover, contrary to defendant's assertion, Detective Mickens did testify he saw defendant exit the vehicle from the driver's side - specifically, from about ten feet away on a clear night, he observed defendant get out of the driver's seat, cut across the back of the BMW, and flee. This provided the detective with ample opportunity to observe the driver and his body size. The detective also observed the passenger as heavyset. When he went to turn off the BMW's ignition, Detective Mickens also observed the driver's seat pushed up, while the front passenger seat had been pushed all the way back, strongly suggesting the smaller of the two occupants was the driver. Detective Mickens further made an on-the-scene identification of defendant almost immediately after his initial observations of him, making it impossible to conclude the absence of a detailed identification charge was harmful error. See Pressler & Verniero, Current N.J. Court Rules, comment 8.14 on R. 1:8-7 (2012) ("Where identification is made essentially immediately after commission of the crime . . . it is not error to fail to give the specific identification charge.").
Turning to defendant's sentence, the court found aggravating factor one, N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offense, including whether it was committed in an especially heinous, cruel, or depraved manner) based on defendant's conduct of driving at speeds in excess of 100 miles per hour, which far exceeded what is necessary to establish the offense of eluding, and factor three, N.J.S.A. 2C:44-1a(3) (risk that defendant will re-offend) based on defendant's twelve arrests, eleven convictions, and absence of expression of remorse or any comment by defendant supporting mitigation. The court was clearly convinced the aggravating factors outweighed the non-existent mitigating factors.
The court then found defendant should be sentenced to a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3a, with a base term of fifteen years, noting defendant had five predicate convictions. The court explained the term was "necessary to protect the public" considering defendant had driven in excess of 100 miles an hour, risked the lives of officers and innocent people, the second-degree charge, the escalating seriousness of defendant's convictions, defendant's failure to respond to probation, and his numerous bench warrants for failure to appear.
The court then found aggravating factor nine, N.J.S.A. 2C:44-1a(9) (general and specific deterrence) based on lack of defendant's deterrence despite the benefit of dismissed charges, amended charges, community service, and probation. The court also referred to defendant's lack of respect for law enforcement and disregard of the risk of others' lives evidenced by his criminal record and this conviction, resulting in a need for deterring this defendant and others. The court also found factor thirteen, N.J.S.A. 2C:44-1a(13), that defendant committed the eluding offense while using a stolen vehicle. The court gave "paramount and crushing weight" to factor three and "very minor weight" to factor nine and again found the aggravating factors outweighed the mitigating factors without using defendant's extended term qualifying prior record as an aggravating factor.
The court further concluded that seven and one-half years was an appropriate term of parole ineligibility based on defendant's age of twenty-nine years, eight indictable convictions, unsatisfactory response to prior noncustodial efforts, and conduct that was escalating in violence.
Defendant does not dispute that he is extended-term eligible as a persistent offender pursuant to N.J.S.A. 2C:44-3a. He argues, however, that the court abused its discretion in electing to impose such a sentence here. Defendant challenges as double-counting the court's reference to his excessive speed as a factor in its finding of aggravating factor one and the prior convictions that served as the basis for the extended term and crimes for which defendant had been arrested but not convicted, having pled guilty to lesser offenses, in its finding of aggravating factor three. He further contends the court improperly relied on facts not established at trial by finding aggravating factor thirteen, notwithstanding the dismissal of the receiving stolen property charge, in violation of Blakely and Natale because it usurped the prerogative of the jury to be the factfinder and deprived defendant of his constitutional right to a trial by jury. See Blakely, supra, 542 U.S. at 308, 124 S. Ct. at 2540, 159 L. Ed. 2d at 416-17; Natale, supra, 184 N.J. at 484.
Defendant also challenges, as an abuse of discretion, the term of parole ineligibility. His principal argument is that the record does not support the court's finding of a pattern of escalating violence. Defendant submits the court imposed an excessive sentence of fifteen years with a seven and one-half-year parole disqualifier not for eluding the police, but for doing so after stealing the vehicle he was driving, which was an offense for which he was not convicted.
We are not persuaded by defendant's arguments and find no error in the sentence imposed. From our review of the record, we are satisfied Judge Ravin performed the appropriate State v. Pierce, 188 N.J. 155, 168-69 (2006) and State v. Dunbar, 108 N.J. 80, 92 (l987) analysis for evaluating an application for a discretionary extended term and establishing the period of parole ineligibility. The record amply supports the imposition of an extended term.
The depravity of defendant's conduct is patent, based on his leading police on a high-speed chase down highways and local roads while driving in excess of l00 miles per hour, erratically and recklessly, running red lights, consistently ignoring the officers' demands to pull over, and only stopping when he hit a tree. Contrary to defendant's argument, finding factor one was not impermissible double-counting. In his final charge Judge Ravin instructed the jury that it could infer risk of death or injury based on defendant's alleged violation of motor vehicle laws, specifically reckless driving and improper passing. Speed was a factor beyond the essential elements of the offense.
Similarly, defendant had substantial prior convictions, well beyond the statutory predicate for discretionary extended-term eligibility as a persistent offender. Cf. State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005) (finding it was error to consider a defendant's only prior conviction both when imposing an extended term and setting a base term). Defendant was also given numerous opportunities to conform to society's rules through dismissed or downgraded charges, diversionary programs, and noncustodial sentences to no avail. Contrary to defendant's assertion, arrests may be considered when determining whether there is a risk to re-offend; defendant had a dozen arrests and an extensive juvenile and municipal court record. See, e.g., State v. McBride, 211 N.J. Super. 699, 704-05 (App. Div. l986) (affirming trial court's decision to find aggravating factor three where a defendant had no prior convictions but had been arrested and had a lengthy juvenile record).
According to defendant's pre-sentence report, to which defendant made no corrections or deletions at sentencing, the vehicle he was driving was stolen, further corroborated by Harris' guilty plea to theft of the BMW. While count one of the indictment charging receipt of stolen property, a motor vehicle, was dismissed as to defendant prior to trial, a formal charge or finding of theft beyond a reasonable doubt is not a prerequisite to finding that aggravating factor. See United States v. Booker, 543 U.S. 220, 232, 125 S. Ct. 738, 749, 160 L. Ed. 2d 621, 642-43 (2005) (holding that facts admitted by a defendant may be considered in his sentencing without violating the Sixth Amendment); Natale, supra, 184 N.J. at 486-87 (holding that aggravating factors are not "the substantial equivalent of an element of an offense to be decided by a jury"). Accordingly, the judge properly found aggravating factor thirteen.
Overall, we are satisfied the aggravating factors found by Judge Ravin were based upon competent and credible evidence; he correctly applied the analysis and sentencing guidelines enunciated in the case law and Code of Criminal Justice; and the sentence imposed is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock our judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION