STATE OF NEW JERSEY VS. JOHN L. WILLIAMS

A grand jury indicted defendant John L. Williams for

second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)

(count two); and fourth-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(a) (count three). A jury found

defendant guilty on count one and not guilty on count two and

the State dismissed count three. The trial judge imposed a ten

year term of imprisonment with a three-year period of parole

ineligibility. The judge also found defendant guilty of driving

while license suspended, N.J.S.A. 39:3-40, and suspended

defendant's driving privileges for one year.2

On appeal, defendant raises the following contentions in

assigned counsel's brief:

POINT I

EXTENSIVE PROSECUTORIAL MISCONDUCT DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (PARTIALLY RAISED BELOW).

A. The State Improperly Bolstered Officer Guker's Credibility Based Upon His Role as a Law Enforcement Officer.

2 Defendant pled guilty under a separate indictment to five counts of third-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and one count of third-degree possession with intent to distribute a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7(a). The judge imposed concurrent terms of imprisonment on these counts.

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B. The State Encouraged the Jury to Convict [Defendant] as a Means of Punishing Him for Purportedly Failing to Respect the Rules of the Road.

C. The Cumulative Effect of the Prosecutorial Misconduct Warrants Reversal of the Eluding Conviction.

POINT II

THIS COURT SHOULD REMAND THE MATTER FOR RESENTENCING.

A. [Withdrawn] B. The Discretionary Parole Disqualifier on the Eluding Offense Should be Vacated Because it is Not Supported by the Record.

C. The Present Sentences are Not OffenseOriented, as Required by State v. Roth and State v. Hodge.

In a pro se supplemental brief, defendant raises the following

contentions:

POINT ONE

PROSECUTION FAILED TO PROVE BEYOND A REASONABLE DOUBT (THE [SIX] ELEMENTS) TO CONVICT FOR ELUDING; ALSO TRIGGERING ISSUES RAISED IN [STATE V. MENDEZ] [AND] [STATE V. DORKO]. (Raised Below).

POINT TWO

DEFENDANT CONTENDS PROSECUTORIAL MISCONDUCT DUE TO A) PROSECUTOR'S "BAD CHARACTER" COMMENTS TO JURORS; B) INFLAMMATORY THREAT OF CONSEQUENCES BY DEFENDANT EXERCISING HIS [FIFTH]

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AMENDMENT RIGHT TO TESTIFY AT TRIAL. PURSUANT TO[] FED. R. EVID. 404(A). (Raised Below).

POINT THREE

PROSECUTION RELIED UPON EVIDENCE NOT ENTERED DURING TRIAL AND THUS DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

POINT FOUR

PROSECUTION SUPPRESSED REQUESTED MATERIAL EVIDENCE[,] [COMPUTER-ASSISTED DISPATCH REPORT] [AND] ALSO WRITTEN REPORT IN ORDER TO ADMIT UNCORROBORATED TESTIMONY[,] [A] [BRADY] RULE VIOLATION. (Raised Below).

POINT FIVE

IF THIS COURT FIND[S] THAT THE RECORD DOES NOT PROVIDE AN ADEQUATE BASIS TO DETERMINE ANY OF THE BELOW[-] REFERENCED ISSUES [ON] DIRECT APPEAL, THE [DEFENDANT] RESPECTFULLY RESERVES THE RIGHT TO RAISE THIS ISSUE IN A SUBSEQUENT PETITION FOR POST CONVICTION RELIEF [AND] THE PROSECUTOR PRESENTED KNOWN PERJURED TESTIMONY[,] A DUE PROCESS VIOLATION UNDER[] HOLOHAN AND BRADY RULE. (Raised Below).

POINT SIX

PROSECUTION WITHHELD REQUESTED HIGHLY MATERIAL EVIDENCE [COMPUTER-ASSISTED DISPATCH REPORT] IN VIOLATION OF BRADY/KYLES. (Raised Below).

We reject all of these contentions, and affirm.

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I.

We derive the following facts from the record. At

approximately 3:30 a.m. on January 6, 2012, Police Officer Adam

Guker of the Manchester Township Police Department was on patrol

in a marked patrol car traveling westbound on Route 571, a four

lane county road with two lanes in each direction. Guker saw a

silver Toyota Camry with its headlights activated and traveling

eastbound on Route 571 at about twenty miles-per-hour in a fifty

mile-per-hour zone. As Guker passed the Camry, he saw the

driver, later identified as defendant, make an improper left

turn from the right-hand lane and enter Maplewood Street.

Believing the driver was "a possible drunk driver," Guker

made a U-turn on Route 571 and attempted to locate the Camry.

Guker turned onto Maplewood Street and saw defendant turn right

onto Oak Knoll Street and travel towards Beacon Street. Guker

turned onto Oak Knoll Street and saw defendant make a right turn

onto Beacon Street and head toward Route 571. Guker then saw

defendant cross over Route 571, continue down Beacon Street,

turn right onto Monmouth Street, and then turn right onto Lake

Drive with his headlights off.

Guker activated his dash cam video recorder, which recorded

events up to and including a pat down search of defendant.

Guker shined his spotlight inside defendant's vehicle.

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Defendant did not stop. Before reaching a bend in the road on

Lake Street, Guker activated his overhead lights, but defendant

did not stop. Defendant continued around the bend onto

Fairfield Street. Guker activated his siren, but defendant did

not stop and continued toward Route 571. Defendant failed to

stop at a stop sign at Route 571 before making a right turn onto

the roadway. Defendant drove past one street and then made a

right turn onto Seminole Street. He then traveled halfway down

Seminole Street on the wrong side of roadway before stopping on

the left side.

Officer Nazario3 arrived at the scene to assist Guker.

Defendant was ordered to exit the Camry and then placed in

handcuffs. A pat down search revealed a razor blade wrapped in

duct tape in defendant's back pocket. A dispatcher advised

Guker that defendant's driver's license was suspended and the

Camry was not registered in his name.

Officer Denny Barker arrived at the scene and saw a dent on

the front end of the Camry. Guker told Officer Barker the route

he and defendant had taken, and Officer Barker retraced that

route in his patrol car. Along the route, he discovered a

chain-link fence that had been damaged near the bend in the road

on Lake Drive. Officer Barker spoke to the homeowner, who

3 The record does not reveal Officer Nazario's first name.

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advised that the fence was not damaged prior to his going to

sleep that evening.

Defendant was charged with eluding, weapons offenses, and

with numerous motor vehicle violations, including improper turn,

failure to maintain a lane, failure to stop at a stop sign,

failure to signal, reckless driving, and leaving the scene of an

accident. A jury found defendant guilty of eluding and also

found that the State proved beyond a reasonable doubt that

defendant's flight or attempt to elude created a risk of death

or injury to any person. On appeal, defendant challenges his

conviction and sentence.

II.

In Point I of assigned counsel's brief, and Point Two of

defendant's pro se supplemental brief, defendant raises several

claims of prosecutorial misconduct.

A.

Defendant first contends in Point I.A. of assigned

counsel's brief that the prosecutor improperly bolstered Guker's

credibility during summation by making the following comment:

[Guker] testified that [defendant's vehicle was] doing 20 miles an hour on a 50 mile-anhour road. Now, remember, when you draw upon what's more credible and more believable, remember [Guker is] a patrolman for over seven, eight years and now he's a detective since January. And of course, you'll be able to, if you want to hear

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anything back, I challenge you to see if what I'm saying is incorrect. But that's the testimony he said.

And in this case, [Guker] sees [defendant] doing 20 miles in a 50 mile-anhour zone, nothing wrong with that. But then all the sudden, across the right lane to the left lane, across the double yellow, past his side to the other, as soon as [Guker] passes him in a marked unit that says Manchester Police around the car with the push bumper in the front, the lights on the top, and the vehicle, as [Guker] describe[d] it, all the sudden, this vehicle does a four-way across the street and pulls in to Maplewood.

After completion of the prosecutor's summation, defense counsel

objected to this comment, arguing that the prosecutor was

attempting to have the jury conclude that Guker was more

believable because he was a police officer and had been promoted

to detective. The judge overruled the objection, stating as

follows:

With respect to the reference to [Guker] being a detective at this point in time and [defense counsel] inferring that a jury could infer from that [the prosecutor] was alluding to a theory that [Guker] should be more believable because he was promoted, I don't think that that was clearly inferred to the jury and I think the testimony clearly was from [Guker] that now he is a detective. . . . I don't think [the prosecutor] violated anything by referring to that and I don't think he, to the extent that it prejudiced the jury to know that.

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As a general principle, it is improper for a prosecutor to

convey his or her personal opinion to a jury. State v.

Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993), aff'd, 136

N.J. 299 (1994). When a prosecutor injects his own personal

opinion as to the credibility of a witness, this may constitute

prosecutorial error. See State v. Farrell, 61 N.J. 99, 105

(1972). Such bolstering can be considered particularly

inappropriate when the witness is a law enforcement officer.

State v. Hawk, 327 N.J. Super. 276, 285 (App. Div. 2000). The

State may not assert that a law enforcement officer witness is

inherently credible based solely upon his status. State v.

Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied,

53 N.J. 354 (1969); see also State v. Frost, 158 N.J. 76, 86

(1999).

While defendant correctly cites this long-established

principle, it does not apply here. The prosecutor did not

express any personal belief in Guker's testimony, nor did he

suggest that the jury should believe Guker because he was a

police officer or had been promoted to detective. The

prosecutor's reference to Guker as a police officer and

detective was to demonstrate that Guker's conduct in following

defendant was based on his training and experience in pursuing a

vehicle. This was in response to defense counsel's attempt

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during her summation to discredit Guker by saying he had no

purpose in following defendant. Moreover, the prosecutor did

not tell the jury to accept Guker's testimony because he was a

police officer or detective, nor did he suggest that Guker had

no motive to lie. Lastly, even if the comment was error, it was

harmless. The jury viewed the videotape of the pursuit, which

provided independent and overwhelming evidence of eluding.

B.

Defendant contends for the first time on appeal in Point

I.B of assigned counsel's brief that the prosecutor improperly

"sent a message" to the jury to convict defendant for failing to

respect the rules of the road. Defendant points to the

prosecutor's following summation comment:

Now, in the beginning of the case, I told you the theme of this case was [the] rules of the road and what happens when you don't follow them. Now, we all as people have certain types of rules, certain sort of curriculum, certain sort of tenets and beliefs that we follow and we abide by. Rules is such a word that is taken for granted that we throw it around in everyday life.

And in this case, for illustrative purposes that can help assist you in the jury room, I want to talk about what the word rules means as I told you at the beginning of this case. And it stand[s] for something. . . . Rules, again it's a word we throw around quite frequently, and in this case to help you determine the facts of the case and apply it to the law, it stands

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for Respect and Understanding of the Law Equals Safety. Okay? That's what rules mean and in this context, I want you to use that when you collectively come together to talk about how the State has proven this defendant . . . guilty beyond a reasonable doubt.

Because defendant did not raise this issue before the trial

judge, we review it for plain error. R. 2:10-2; State v. Macon,

57 N.J. 325, 336 (1971). We will reverse on the basis of an

unchallenged error only if it was "clearly capable of producing

an unjust result[.]" Macon, supra, 57 N.J. at 337. To reverse

for plain error, we must determine that there is a real

possibility that the error led to an unjust result, that is,

"one sufficient to raise a reasonable doubt as to whether [it]

led the jury to a result it otherwise might not have reached."

Id. at 336.

Prosecutors are prohibited from making "send a message to

the community" or "call to arms" comments to the jury. State v.

Neal, 361 N.J. Super. 522, 537 (App. Div. 2003). There were no

such comments made here. Rather, the prosecutor's comments were

squarely aimed at the elements of eluding in N.J.S.A. 2C:29-2(b)

and the statutory permissive inference that a violation of Title

39 creates a risk of death or injury to any person as an element

of second-degree eluding. N.J.S.A. 2C:29-2(b) provides as

follows, in pertinent part:

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Any person, while operating a motor vehicle on any street or highway in this State . . . 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 commits a crime of the third degree; except that, 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. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes.

The prosecutor referred to the permissive inference in his

summation when he said,

[the statute] allows an inference if you choose to accept it or decline it. So the inference is that if you believe the defendant committed certain motor vehicle infractions such as running a stop sign, reckless driving, failure to report an accident, things of [that] nature, you can use it to infer under our law, . . . that there is a potential for risk of harm, injury or death to anyone, including the police officer, the defendant himself or anybody else on the roadway.

The prosecutor's reference to the "rules of the road" can be

fairly characterized as a reference to the elements of the

offense and the statutory permissive inference. Accordingly,

the prosecutor's comments do not constitute any error, let alone

plain error.

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C.

Defendant contends in Point Two of his pro se supplemental

brief that the prosecutor improperly commented during summation

on defendant's "bad character" in violation of N.J.R.E. 404(b).4

Defendant points to the following comment:

Now [defense counsel] indicates that [defendant] voluntarily pulled over. I submit to you ladies and gentlemen, you're not outrunning a police cruiser in his own backyard at this point. The game was over and [defendant] knew he was caught. That's why he pulled over, I submit to you respectfully, okay.

Defendant cites several other examples of "bad character"

comments; however, none of the comments were "bad character"

evidence under our evidence rules. The prosecutor's comments

were in response to defense counsel's suggestion during

summation that defendant voluntarily stopped, and he was simply

implying that defendant ultimately stopped after being pursued

because he knew he could not escape. Thus, there was no

improper comment on "bad character" evidence.

D.

We reject defendant's contention in Point Two of his pro se

supplemental brief that the prosecutor improperly commented on

his election not to testify. After the State rested, the jury

4 Defendant cites to Fed. R. Evid. 404(b), but N.J.R.E. 404(b) is the applicable rule.

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was excused to the jury room. The judge then discussed

scheduling with counsel. During that discussion, the prosecutor

commented as follows:

I would submit, Judge, if you, as you indicated, true to my word, it was a very short trial. I would note that both of our opening statements were approximately eight to eight and a half minutes long. At this point it's 2:10 [p.m.], we have the jury here and actually went a lot quicker, if indeed [defendant] exercises [] his right not to testify, that would [] probably leave us two to two and a half hours to get that done[.]

Clearly, these comments are neither improper nor prejudicial.

The jury was not in the courtroom at the time the comment was

made, and the prosecutor was not remarking one way or another on

defendant's right not to testify. Counsel and the judge were

merely discussing scheduling issues and, in fact, the judge

recessed to allow defense counsel to further discuss with

defendant whether or not he would testify. Defendant's

characterization of this innocuous statement by the prosecutor

is, thus, incorrect. We conclude there was no prosecutorial

misconduct whatsoever in this case warranting reversal of

defendant's conviction.

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III.

Defendant contends in Point One of his pro se supplemental

brief that the State failed to prove eluding beyond a reasonable

doubt. We disagree.

To convict a person of eluding, the State must prove the

following six elements beyond a reasonable doubt:

1. That [defendant] was operating a motor vehicle on a street or highway in . . . this state.

2. That [the officer] was a police or law enforcement officer.

3. That [the officer] signaled [defendant] to bring the vehicle . . . to a full stop.

4. That [defendant] knew that the officer had signaled him/her to bring the vehicle . . . to a full stop.

5. That [defendant] knew that [the officer] was a police or law enforcement officer.

6. That defendant knowingly fled or attempted to elude the officer.

[Model Jury Charge (Criminal), Eluding An Officer [Second and Third Degree] (N.J.S.A. 2C:29-2(b)) (2004).]

If the State proves these six elements, to convict a person of

second-degree eluding, the State must then prove "[t]hat the

flight or attempt to elude created a risk of death or injury to

any person." Ibid. Defendant argues there was no evidence

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proving elements three through six, and no evidence that he

created a risk of death or injury.

Defendant essentially argues that the jury verdict was

against the weight of the evidence. However, he did not file a

motion for a new trial on this basis. "[T]he issue of whether a

jury verdict was against the weight of the evidence shall not be

cognizable on appeal unless a motion for a new trial on that

ground was made in the trial court." R. 2:10-1. While we need

not entertain a weight of the evidence argument in the absence

of a new trial motion, we may nevertheless choose to do so in

the interest of justice. State v. Smith, 262 N.J. Super. 487,

511 (App. Div.), certif. denied, 134 N.J. 476 (1993). We chose

to address defendant's contention and conclude it is without

merit.

The mere failure to stop does not constitute flight. State

v. Mendez, 345 N.J. Super. 498, 509 (App. Div. 2001), aff'd, 175

N.J. 201 (2002). Rather, the State must prove that the

defendant knew he was being pursued by police officers, but

still did not stop. Id. at 507-08. As the Model Jury Charge

(Criminal), supra, states,

A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing"

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or "with knowledge" or equivalent terms have the same meaning.

Knowledge is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and his/her conduct, and from all that he/she said and did at the particular time and place, and from all of the surrounding circumstances.

[(Emphasis added).5]

The State is not required to prove that the defendant's

"conscious object" in fleeing from the police was to avoid

apprehension. Instead, the State is only required to prove the

defendant was "aware" that he was fleeing from the police.

Mendez, supra, 345 N.J. Super. at 509.

In addition, the "risk of death of injury" may be

permissively inferred if the defendant violated a motor vehicle

or traffic regulation. See N.J.S.A. 2C:29-2(b). Whether guilty

of a motor vehicle violation or not, a jury "may infer risk of

death or injury to any person if the defendant's conduct in

5 The judge gave this charge to the jury.

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fleeing or in attempting to elude the officer involved a

violation of the motor vehicle laws of this State[.]" Model

Jury Charge (Criminal), supra. The jury is permitted to

consider evidence that the defendant committed a motor vehicle

offense in deciding whether he or she created a risk of death or

injury. Ibid. However, the court must explain the elements of

the motor vehicle offenses that form the basis for the inference

so that the jury can make an accurate determination whether the

defendant's conduct created the danger of death or injury.

State v. Dorko, 298 N.J. Super. 54, 59-60 (App. Div.), certif.

denied, 150 N.J. 28 (1997).

Based on the marked patrol car, the spotlight that Guker

shined into defendant's vehicle, and the overhead lights and

siren, the jury could have reasonably inferred that defendant

was aware a police officer had signaled him to stop and aware he

was fleeing from the police.

The jury could also have reasonably inferred that

defendant's flight created a risk of death or injury to any

person. Defendant violated numerous motors vehicle laws during

the pursuit. He left the scene of an accident, drove

recklessly, failed to signal, failed to maintain a lane, and

failed to stop at a stop sign, all of which was captured on the

video recording and corroborated by Guker's testimony. The

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judge instructed the jury on the elements of these motor vehicle

offenses. At that point, Dorko was satisfied and the permissive

inference was appropriate. We conclude that the evidence was

more than sufficient to support defendant's eluding conviction.

IV.

Defendant contends for the first time on appeal in Point

Three of his pro se supplemental brief that during summation,

the prosecutor improperly relied on evidence not in the record.

Defendant points to the following exchange between the

prosecutor and Guker:

[PROSECUTOR]: Now, for our benefit, could you please describe what mechanism you used or your office uses to help notify other law enforcement officers for assistance purposes, is it a dispatch, a cell phone?

[GUKER]: Dispatch, radio, we dispatch our, we have dispatchers, our own dispatchers and all the information gets transferred into a CAD system.

Defendant's contention is without merit. The prosecutor

was not referring to evidence not in the record, and was not

asking Guker about the substance of the dispatch documentation.

The prosecutor simply asked the above question and that was it.

The questioning did not constitute plain error.

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V.

Defendant contends in Points Four and Six of his pro se

supplemental brief that the prosecutor committed a Brady6

violation by withholding a dispatch report of communications

between police headquarters and patrolling officers. We

disagree.

"A prosecutor's obligation to 'turn over material,

exculpatory evidence to the defendant' is well established and

does not require extended discussion." State v. Nash, 212 N.J.

518, 544 (2013) (quoting State v. Morton, 155 N.J. 383, 413

(1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.

2d 306 (2001)). "The obligation extends as well to impeachment

evidence within the prosecution's possession." Ibid. (citing

Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948,

144 L. Ed. 2d 286, 301 (1999)). "A breach of this duty of

disclosure -- in appropriate circumstances -- violates a

defendant's due process rights." Ibid. (citing Brady, supra,

373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218).

"However, the due-process guarantee does not impose on a

prosecutor a constitutional duty to investigate." Ibid.

6 Brady v. Maryland, 373 U.S. 78, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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There are three elements to a Brady violation: "[t]he

evidence must be favorable to the accused; it must be suppressed

by the prosecution; and it must be material." State v. Nelson,

155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.

Ct. 890, 142 L. Ed. 2d 788 (1999). As to the first element, the

United States Supreme Court has noted the Brady rule encompasses

both impeachment and exculpatory evidence. United States v.

Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d

481, 490 (1985). As to the second element, the disclosure rule

"applies only to information of which the prosecution is

actually or constructively aware." Nelson, supra, 155 N.J. at

498. As to the third element, the evidence is deemed material

"only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different. A 'reasonable

probability' is a probability sufficient to undermine confidence

in the outcome." Bagley, supra, 473 U.S. at 682, 105 S. Ct. at

3383, 87 L. Ed. 2d at 494; see also State v. Landano, 271 N.J.

Super. 1, 36 (App. Div.), certif. denied, 137 N.J. 164 (1994).

Defendant has not established any of the elements required

to prove a Brady violation. He does not show that this evidence

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was favorable to him, suppressed by the prosecution,7 or material

to his case. He merely asserts that the prosecutor failed to

provide the dispatch report. This is insufficient to prove a

Brady violation.

VI.

Defendant contends in Point Five of his supplemental brief

that the prosecutor permitted Guker to give perjured testimony

that Officer Barker was the first person to notice the damage on

the Camry rather than defendant's girlfriend, who had arrived at

the scene. Even if this contention was true, it is wholly

irrelevant to defendant's eluding conviction. The damage on the

Camry only served as evidence of defendant's failure to report

an accident, a motor vehicle violation for which he was not

convicted.