Opinion
DOCKET NO. A-5542-10T1
05-23-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL T. WILFONG, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, on the brief). Frederic M. Knapp, Acting Morris County Prosecutor, attorney for appellant (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-04-445.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, on the brief).
Frederic M. Knapp, Acting Morris County Prosecutor, attorney for appellant (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Michael T. Wilfong appeals from his conviction by a jury on charges resulting from his attempt to elude the police in a stolen car. He also appeals his eighteen-year sentence of imprisonment. We affirm.
I.
The prosecution's case at defendant's trial was presented through the testimony of three Morristown police officers and an employee of the car dealership from which the car was stolen. Defendant did not testify, but he presented testimony from other police witnesses and a defense investigator, and his attorney argued to the jury that defendant was not the driver of the stolen vehicle that led the police on a high-speed chase.
In the prosecution case, Officer Anthony O'Brien testified that on the night of December 5, 2009, he saw a BMW driving without its lights. He turned on his roof lights and sounded his siren to stop the vehicle. The BMW did not stop at first, but then it pulled into a commercial parking lot at 30 Lafayette Avenue, Morristown. O'Brien stopped behind the BMW and shined his spotlight into the car. He saw only a driver, a "large individual" with "long and curly and wavy" hair. He did not see the individual's face and could not identify the person's race or gender.
After O'Brien stepped out of his police car, the BMW suddenly sped forward and out of the parking lot. It fled down Elm Street, onto Franklin Street, then past Morristown Memorial Hospital. Moving well above the posted speed limit, the vehicle drove through a stop sign, and it traveled across double-yellow traffic lines several times. Another police car joined the pursuit in front of O'Brien's vehicle and closer to the fleeing BMW. O'Brien lost sight of the BMW for "no more than five seconds . . . approximately." He came upon it again after it had crashed into a sign and a tree at the intersection of Franklin Street and Madison Avenue. Using a map and photographs, he showed the jury the route of the pursuit, the site of the crash, and the residential and commercial characteristics of the roads and surrounding area.
O'Brien testified that when he reached the crash site, the officer from the other police car had already parked his vehicle and was looking into the BMW. O'Brien saw no one inside the car. In the snow, which had fallen recently, he saw one set of footprints from the crash site and followed it. Within moments, he heard a third officer yell "stop, police." O'Brien rushed toward the sound, and he saw defendant on the ground, about 100 to 150 feet from the crash site, as the other officer was trying to handcuff him. Defendant was firmly holding his hands underneath his body to avoid being handcuffed. O'Brien aided in the arrest.
After defendant was secured, O'Brien tracked the footprints from the crash site to the location where defendant was apprehended, and he confirmed that the footprints did not go off in another direction. The snow surrounding the area was otherwise undisturbed. O'Brien did not see anyone else in the area who may have been involved in the chase or the crash, and there were no other unidentified footprints anywhere in the snow near the crash site. On cross-examination, O'Brien testified there was no snow on the street surface where the BMW came to a stop and it was "possible" that someone could have come out of the passenger side of the car, closed the door, then run across the street and out of sight without the officers having seen that person.
On redirect examination, O'Brien identified distinctive gloves with yellow palms and black backings that defendant was wearing at the time of his arrest. That testimony was given in anticipation of a defense argument that the police had not found defendant's fingerprints in the BMW.
Next, Detective Keith Hudson testified that he took up the chase of the BMW in an unmarked police car after hearing Officer O'Brien's communications over his police radio. With activated lights in his dashboard and grille, he pursued the BMW as it traveled substantially above the speed limit on Elm and Franklin Streets, failed to stop at intersections, and otherwise violated traffic laws. Hudson estimated that the car was traveling as fast as seventy miles per hour. He did not see the car crash, but he was the first officer to arrive at the site. He saw nobody on the street. He noted that the driver's door was open, the passenger door was closed, and airbags on both the driver and passenger sides had deployed. He confirmed that no person was in the crashed car. He saw O'Brien also checking the scene and then heard the third officer call out "stop, police" from behind a nearby house. He went around the house and saw defendant on the ground, refusing to allow the other officers to restrain his arms. He helped with the arrest.
On cross-examination, Hudson testified that the BMW was out of his sight for "two seconds maximum," during which time it crashed. While in pursuit of the BMW, Hudson observed only a male driver in the car, but he could not be completely sure that the car was otherwise unoccupied. Hudson testified he searched the area near the crash site and otherwise investigated at the scene. He found no evidence of anyone else who might have been involved in the chase.
The third Morristown police witness, Officer Joseph Heuneman, heard O'Brien's attempted vehicle stop on the radio while he was at police headquarters. He got into a patrol car and joined the pursuit. Heuneman did not have the BMW in sight until he arrived at the crash site. He noted that airbags had deployed on both sides of the car but did not see anyone in the immediate area. Heuneman thought that the most logical place for the driver to flee was behind the nearby house, and so, he ran in that direction. He saw defendant trying to climb a chain link fence at the back of the house and shouted "stop, police" to him. Defendant looked at Heuneman and then ran in the opposite direction. Within seconds, defendant slipped in the snow and fell to the ground. Heuneman reached him quickly and attempted to handcuff him, but defendant locked his hands under his body and refused to release them. The other officers arrived and assisted in defendant's arrest.
The prosecution's last witness was Joel Steven Hodossy, the parts and service manager for the BMW dealership in Morris Township from which the car was stolen. The dealership was using the car as a "loaner," and it was there on the lot on the morning of November 25, 2009. Later that day, it was missing. Defendant was never a customer of the dealership. Neither he nor any other person had permission to use the vehicle on December 5, 2009.
On cross-examination, Hodossy discussed his own internal investigation into the missing BMW, including a suspicion that an employee had taken the vehicle without permission. The car was stolen during business hours, the key having been taken from behind an employee counter. Hodossy testified that the suspected employee was cleared of the theft, although the employee was later fired because he no longer had a valid driver's license. Hodossy's review of security film footage was not helpful in determining who took the car.
Defense counsel asked Hodossy about deployment of the passenger airbag in a crash. Hodossy testified that the passenger seat has a sensor and the airbag "could deploy but most likely won't deploy" when there is no one sitting in the passenger seat. Defense counsel drew Hodossy's attention to a prior statement he had made to a detective investigating the theft. Hodossy had allegedly said that two people must have been occupying the car when it crashed and there was "no way" the passenger airbag would deploy without someone in that seat. Hodossy did not recall making that statement to the detective.
The defense presented the testimony of a defense investigator to establish that the location of defendant's arrest near a fence was 274 feet from the site of the car crash. The purpose of that testimony was to support defense contentions that the officers lost sight of the vehicle and the crash for a longer period than they testified, and so, they did not see who or how many people fled the crash. The defense also called a nurse at the Morris County Correctional Facility to testify that she conducted an intake screening of defendant after his arrest and found him to be well-groomed, with no apparent injuries or signs of trauma. Defense counsel later argued that defendant was not in the car when it crashed because he had no signs of injury. A Morristown police detective was called to testify that only two useful latent fingerprints had been lifted from the BMW, but neither matched defendant. Nor had the detective found any other forensic evidence connecting defendant to the car.
Finally, the defense presented testimony from Detective Adam Sutherland of the Morris Township Police Department, who had investigated the theft of the BMW from the dealership. Sutherland testified that Hodossy had told him it would be "impossible" for the passenger airbag to deploy without a person sitting in that seat. On cross-examination by the prosecutor, Sutherland said he had not asked Hodossy what he meant by that statement, and he never showed Hodossy any photographs of the crashed BMW or the deployed airbags.
In summation, defense counsel argued that the prosecution had not shown the jury any reliable evidence placing defendant in the crashed vehicle. Counsel suggested that defendant had not been in the car at all but simply happened to be in the area when confronted by the police. The prosecutor's summation recounted the testimony of the arresting officers, focusing on the footprints in the snow and defendant's flight from the scene of the crash. The prosecutor also used photographs of the car in evidence and argued that the front passenger airbag had not deployed in the crash but that only the driver's airbag and a side curtain airbag on the passenger side had deployed.
The jury convicted defendant of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a); second-degree eluding the police, N.J.S.A. 2C:29-2(b); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). The court then conducted a bench trial of several traffic code violations and found defendant guilty of some of them.
On the second-degree eluding conviction, the trial court sentenced defendant to an extended-term sentence pursuant to N.J.S.A. 2C:44-3, of eighteen years imprisonment, with a nine-year period of parole ineligibility. It sentenced defendant to five years imprisonment on the charge of receiving stolen property and eighteen months imprisonment for resisting arrest, all the sentences to run concurrently.
On appeal, defendant argues:
POINT I
THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THEY COULD CONSIDER HODOSSY'S PRIOR INCONSISTENT STATEMENT AS SUBSTANTIVE EVIDENCE THAT THERE WAS MORE THAN ONE PERSON IN THE BMW WHEN IT CRASHED DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1974), ART. I, PARS. 1, 9, & 10). (Not Raised Below).
POINT II
TRIAL COUNSEL'S FAILURE TO OBJECT TO THE LIMITING INSTRUCTION REGARDING THE PRIOR INCONSISTENT STATEMENT, AND TO THE COURT'S CHARGE TO THE JURY ON THE STATEMENT, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL WHICH DEPRIVED DEFENDANT OF THE CONSTITUTIONAL RIGHTS OF DUE PROCESS, COUNSEL AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1974), ART. I, PARS. 1, 9, & 10). (Not Raised Below).
POINT III
DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE JURY WAS PERMITTED TO INFER THAT DEFENDANT'S CONDUCT CREATED "A RISK OF DEATH OR INJURY" BASED UPON EVIDENCE THAT HE USED A MOTOR VEHICLE WITHOUT THE OWNER'S PERMISSION. (Not Raised Below).
POINT IV
THE SENTENCING COURT'S MISTAKEN FINDING OF FACT WITH RESPECT TO DEFENDANT'S CRIMINAL RECORD NECESSITATES A REMAND FOR RESENTENCING.
II.
In Points I and II, defendant argues it was plain error by the court and ineffective assistance of his attorney to have limited the jury's use of Detective Sutherland's defense testimony to impeachment purposes. We find no merit in these arguments.
Allegations of ineffective assistance of counsel are usually not ripe for review on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Such claims typically require evaluation of evidence outside the trial record. Here, because we find no reversible error in the trial court's rulings, we also conclude that counsel's performance was not deficient in failing to raise objections at trial on the ground now raised on appeal.
During the defense case at trial, the prosecution objected to Detective Sutherland being called as a defense witness to testify about his interview of Hodossy. Outside the presence of the jury, the court heard argument and considered the defense proffer of Sutherland's testimony. The defense sought to prove that Hodossy had told the detective that the passenger airbag could not have deployed unless someone was occupying the passenger seat when the car crashed. In response to the prosecutor's hearsay objection, counsel argued: "[I]t's not hearsay, if the statement is not being sought for its truth. I'm not seeking to introduce [Hodossy's] statement to — as to the truth of whether or not the air bag would have deployed. I'm seeking it to impeach the credibility of Mr. Hodossy."
The court ruled that Sutherland would be permitted to testify about the inconsistent statement of Hodossy, but only for purposes of impeaching Hodossy and not for the truth of the matter asserted. The court said it would give a limiting instruction to the jury, and the prosecutor drafted such an instruction. The court also directed defense counsel not to refer in his summation to Hodossy's out-of-court statement as substantive evidence for the presence of a passenger in the BMW.
After Sutherland testified, the court gave the following limiting instruction to the jury:
[Y]ou heard testimony from the witness regarding a conversation . . . that he had with Steve Hodossy.Defense counsel did not object to this limiting instruction, but defendant now claims it constitutes reversible error because it erroneously restricted the use of evidence supporting his defense.
Now, the substance of this conversation is not being admitted as substantive evidence in this case, and you shall not use this as substantive evidence in your deliberations. You are only to consider this testimony as to whether or not the witness, Steve Hodossy testified in a manner that is consistent with a prior statement he made.
Near the conclusion of the case, the court provided to the attorneys a draft of its proposed final charge to the jury, and it conducted a charge conference in accordance with Rule 1:8-7(b). Defense counsel did not object to the court's proposed charge on prior inconsistent statements of a witness, which was not the limiting instruction quoted above but a modification of the full model jury charge on that subject.
We quote in full the trial court's final instructions to the jury on prior inconsistent statements, indicating by brackets and bold letters the portions of Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994), that the court did not include in its instructions:
Now, evidence, including a witness's statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness's testimony at trial may be considered by you for the purpose of judging the witness's credibility. [It may also be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.]
Evidence has been presented showing that at a prior time a witness has said something or has failed to say something which is inconsistent with the witness's testimony at the trial.
However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement or failure to disclose occurred. You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility.
You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefore.
[Omitted references regarding specific witness testimony.]
The extent to which such inconsistencies or omissions reflect the truth is for you to determine. Consider their materiality and the relationship to his or her entire testimony and all the evidence in the case, when, where and the circumstances under which they were said or omitted and whether the reasons they gave you, therefor, appear to be to you believable and logical.
In short, consider all that I have told you before about prior inconsistent statements or omissions.
You will, of course, consider other evidence and inferences from other evidence including statements of other witnesses or acts of the witnesses and others, disclosing other motives that the witness may have had to testify as he or she did, that is, reasons other than which he or she gave to us.
Perhaps, a hypothetical example will help you to understand what constitutes a prior contradictory statement and, more importantly, how it may be used by you.
Assume at the trial, the witness testifies: "The car was red." In cross-examination of that witness, or at some other point in the trial, it is shown that at an earlier time, the witness testified or said: "The car was blue." You may consider the prior contradictory statement that "The car was blue" as a factor in deciding whether or not you believe that statement made at the trial "The car was red."
You may also consider the earlier statement that "The car was blue" as proof of the fact or evidence that the car was blue.
Again, defense counsel did not raise any objection to the charge after it was read to the jury. The prosecutor, however, objected to the provisions at the end of the quoted charge that used a hypothetical example. The prosecutor argued at sidebar that the charge permitted the jury to consider Hodossy's out-of-court statement for the truth of the matter asserted about the passenger seat airbag. The court overruled the prosecutor's objection, stating that the charge was generally applicable to all witnesses, not just to Hodossy.
On appeal, defendant argues he was deprived of a fair trial because the jury should have been permitted to use Hodossy's out-of-court statement as substantive evidence that a second person must have been occupying the car at the time of the crash. That argument has no merit. Defendant never established a foundation for such use of Hodossy's out-of-court statement. Even if Hodossy had made the statement directly while testifying in the courtroom, an objection would have been properly sustained because it was inadmissible opinion testimony.
Since Hodossy did not have personal knowledge of who was occupying the BMW when it crashed, his prior statement that someone must have been in the passenger seat could be admissible only as an opinion. It was not admissible as a lay opinion because it was not "rationally based on the perception of the witness" in accordance with N.J.R.E. 701, or a matter of common knowledge or observation. See, e.g., State v. Bealor, 187 N.J. 574, 586-87 (2006) (alcohol intoxication); State v. Johnson, 120 N.J. 263, 294 (1990) (sole print of shoe matching footprint).
Nor was Hodossy proffered or qualified as an expert witness testifying to opinions under N.J.R.E. 702. The prosecutor objected to the proposed testimony of Detective Sutherland not only on hearsay grounds but also on the ground that it constituted inadmissible expert testimony. The court, too, made reference to the defense proffering the evidence "in effect [as] expert testimony." The defense had not provided pretrial notice of its intent to present expert testimony on the issue of passenger side deployment of an airbag, see R. 3:13-3(b)(2)(E), so that the prosecution could evaluate the proposed expert testimony and prepare to address it. Furthermore, without qualifying Hodossy as an expert in the mechanical features of the BMW in a crash, the defense could not rely on his opinion, whether provided in direct testimony or in an out-of-court declaration, that the passenger airbag would not have deployed unless someone was sitting in that seat.
As we stated in State v. Provet, 133 N.J. Super. 432, 437 (App. Div.), certif. denied, 68 N.J. 174 (1975), upon which defendant relies, "a prior inconsistent extra-judicial statement of a witness called by another party is admissible as 'substantive' evidence, as an exception to the hearsay rule, providing the statement would be admissible if made by the witness while testifying." (Emphasis added.) Here, Hodossy's out-of-court statement to Detective Sutherland was not admissible as substantive evidence.
Moreover, despite the limitation of defense counsel's proffer to non-hearsay purposes, and the court's ruling limiting Sutherland's testimony to impeachment purposes, defense counsel argued in his summation that the jury should consider that evidence for the truth of the matter Hodossy had allegedly asserted. Defense counsel argued to the jury:
Steve Hodossy testified as the State's witness. . . . [W]hat I remember him saying that it should not deploy, that the air bags should not deploy, that there's a feature, that there's a device where if there's not enough weight on that seat, the air bag should not deploy. I think that's what he said.At that point, the prosecutor objected at sidebar, but the court overruled the objection and declined to instruct the jury to disregard defense counsel's improper comment. So, contrary to defendant's argument on appeal, his attorney in fact attempted to use Hodossy's out-of-court opinion as substantive evidence for the truth of the matter asserted. In evaluating the adequacy of a jury charge with respect to the jury's fact-finding function, we may consider the nature and contents of the attorney's summations. See State v. Walker, 322 N.J. Super. 535, 547-48 (App. Div.), certif. denied, 162 N.J. 487 (1999).
Now, you'll have to judge Mr. Hodossy's credibility because as you know I called Detective Sutherland and Detective Sutherland came in and he testified that Hodossy told him that it would be impossible for that air bag to deploy. So, on one day, Hodossy says one thing. When he came here presumably after he's had an opportunity to speak to the State and other investigators, Hodossy comes in here and tells you it shouldn't deploy.
I take from that the proper operation of the BMW 328 is that the air bag should not deploy without someone in the passenger seat.
In this case, the jury may well have rejected defense counsel's argument because it was contrary to the photographic evidence. According to the prosecutor's summation, photos of the damaged car showed only the side curtain airbag had deployed on the passenger side and not the front passenger airbag to which Hodossy may have been referring.
The trial court was correct in the first instance in declining to admit Sutherland's testimony as proof of the truth of what Hodossy had asserted to him in an interview. The court's limiting instruction was not error, and defense counsel's failure to argue the point was not ineffective assistance.
Finally, because defendant did not object at trial to either of the instructions on prior inconsistent statements, we review his contentions on appeal under the plain error standard. State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). That standard of review "requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Manifestly, no such plain error occurred in this case.
III.
We also reject defendant's argument in Point III of his brief that the court committed plain error in its instructions that allowed the jury to find second-degree eluding on improper grounds.
The Criminal Code, N.J.S.A. 2C:29-2(b), elevates eluding to a second-degree offense "if the flight or attempt to elude creates a risk of death or injury to any person." The Supreme Court has explained that "the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others." State v. Wallace, 158 N.J. 552, 560 (1999). This protection is afforded not only to the general public but also to the police officers engaged in pursuit. Ibid.
Defendant argues that the trial court erroneously charged the jury when it included the elements of operating a motor vehicle without the owner's consent in the list of motor vehicle violations with which defendant was charged and which the jury could consider in assessing the eluding charge. Defendant cites State v. Dorko, 298 N.J. Super. 54, 59 n.1 (App. Div.), certif. denied, 150 N.J. 28 (1997), and argues that only those motor vehicle offenses with an "element of danger to a third party" may support the inference of causing risk of death or injury while eluding.
Because defense counsel did not object to the jury charge as given, we must again find plain error to reverse defendant's conviction on this ground. See R. 1:7-2. We review the charge as a whole and not only the parts that were inappropriate. State v. Torres, 183 N.J. 554, 564 (2005); State v. Savage, 172 N.J. 374, 387 (2002). Here, the court's instructions as a whole correctly instructed the jury about the elements of second-degree eluding.
Risk of death or injury while eluding can be established by a high-speed chase through a residential or commercial area at approximately 11:00 p.m. — the exact circumstances of the pursuit in this matter. See Wallace, supra, 158 N.J. at 560. The prosecution presented unrefuted evidence of those circumstances through the testimony of the two pursuing officers. The jury's finding of second-degree eluding does not constitute plain error on the ground that the court should have omitted the charge of operating a motor vehicle without the owner's permission from the traffic offenses that the jury could consider.
IV.
Defendant challenges his eighteen-year extended-term sentence as excessive, arguing that the court incorrectly read his prior criminal record and stated that he had barely gone two years without committing a crime. He argues that he was relatively offense-free from 1988 to 1998.
"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. State v. Natale, 184 N.J. 458, 489 (2005); State v. Roth, 95 N.J. 334, 365 (1984).
Here, the trial court found aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors applicable to the sentence. These findings are amply supported by the record.
Defendant has an extensive criminal record. At the time of his sentencing on July 1, 2011, the forty-nine-year-old defendant had an adult record of twenty-seven arrests, twelve of which had resulted in indictable convictions and six of which in convictions for lesser offenses. His indictable convictions included burglary, numerous theft offenses including motor vehicle thefts, and a prior charge of eluding.
There was no error in the court's imposition of an extended term sentence pursuant to N.J.S.A. 2C:44-3(a), the persistent offender statute, or in the term imposed within the first-degree range.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION