Opinion
DOCKET NO. A-4300-12T4
07-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS M. WINTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-06-1049. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the Law Division's March 28, 2012 judgment of conviction, entered after he was indicted on a single charge of second degree eluding, N.J.S.A. 2C:29-2(b) and convicted by a jury of committing that crime. After his conviction, defendant moved for a new trial, which the court denied before it sentenced him to six years in prison.
On appeal, defendant argues:
POINT I: THE FAILURE OF THE STATE TO MAKE TIMELY DISCLOSURE OF THE CAD REPORT OF THE INCIDENT VIOLATED THE RULES OF DISCOVERY AND DEFENDANT'S RIGHT TO A FAIR TRIAL
POINT II: THE SUPPRESSION OF EXCULPATORY EVIDENCE BY THE STATE VIOLATED BRADY v. MARYLAND
POINT III: THE ADMISSION OF CERTAIN TESTIMONY BY SGT. JOHNSON VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION (Not raised below)
POINT IV: CERTAIN COMMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below)
POINT V: THE DEFENDANT'S NEW TRIAL MOTION SHOULD HAVE BEEN GRANTED BASED ON NEWLY DISCOVERED EVIDENCE
CAD refers to a computer aided or assisted dispatch program. "CAD systems allow public safety operations and communications to be augmented, assisted, or partially controlled by an automated system. It can include, among other capabilities, computer-controlled emergency vehicle dispatching, vehicle status, incident reporting, and management information." Law Enforcement Information Technology Standards Council, Standard Functional Specifications for Law Enforcement Computer Aided Dispatch (CAD) Systems, JUSTICE INFORMATION SHARING viii, available at https://www.it.ojp.gov/documents/LEITSC_Law_Enforcement_CAD_Systems.pdf (last visited June 30, 2015).
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
After reviewing these arguments in light of the record and applicable legal principles, we conclude that defendant's arguments have no merit. We affirm.
I.
The trial record reflects the following facts relevant to this appeal. At about 8:15 p.m. on January 25, 2010, Sergeant David Johnson of the Stafford Township Police Department was on patrol on Route 72, driving an unmarked police car. While stopped at an intersection, Johnson "ran" the license plate number of a small, red, four-door car driven by defendant. Johnson's on-board computer reported that the license plate was actually registered to a white Dodge. Believing that defendant's vehicle may be unregistered, or possibly stolen, Johnson decided to perform a motor vehicle stop. He contacted the police dispatcher with the vehicle registration information and his location, and activated his emergency lights to indicate that defendant should pull over.
Defendant pulled onto the right shoulder and continued driving at about 15 miles per hour until he came to a stop near the Garden State Parkway ramps, without turning off his engine. Johnson pulled behind defendant and exited his vehicle. As he approached defendant's car on foot, defendant "accelerated very fast and onto the Garden State Parkway southbound." Johnson then returned to his vehicle and began pursuing defendant with his lights and siren activated, while reporting to the dispatcher what had occurred.
The pursuit continued for about eight miles, over the course of approximately seven minutes, and ended in Bass River Township. Johnson testified that during the pursuit defendant drove between 80 and 125 miles per hour, and on several occasions he weaved from the left hand lane to the right shoulder in order to pass vehicles in his way. The posted speed limit was 45 miles per hour for the portion of the highway then under construction, and 65 miles per hour elsewhere.
While in pursuit, Johnson instructed the dispatcher to notify the Little Egg Harbor Police Department and the State Police in Bass River Township of the situation. In response, State Troopers at the Bass River barracks set up their vehicles with their emergency lights activated, waiting for defendant to arrive.
Just as Johnson decided to end his pursuit in the interest of public safety, he observed the State Police vehicles waiting ahead. Approaching the State Troopers' vehicles, defendant began slowing down as the vehicle in front of him decelerated, pulled his car onto the shoulder, and came to a complete stop. Johnson then removed defendant from the vehicle and placed him under arrest. According to Johnson and the Troopers, defendant resisted arrest by placing one of his hands beneath his body in order to frustrate the officer's attempt to place him in handcuffs.
II.
In his first two appellate arguments, defendant contends that the Stafford Township Police Department's CAD report relating to the motor vehicle pursuit contained exculpatory material, and he was denied due process and a fair trial because it was not produced during pretrial discovery. These arguments are without merit.
There was no due process violation because the CAD report was not withheld by the State, Strickler v. Greene, 52 7 U.S. 263, 281-82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 302 (1999); Brady v. Maryland, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218 (1963); 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), and, nevertheless, the trial court barred the report's admission until defendant consented and then used the document during defense counsel's cross-examination of the officer.
Throughout the Law Division proceedings, the prosecutor maintained that the CAD report was produced during discovery, consistent with Rule 3:13-3, which contention was supported by his reference to the CAD report in a letter he sent to defense counsel prior to the trial. Upon defendant's initial objection based upon the CAD report's late disclosure, the court granted defense counsel time to review it, consistent with Rule 3:13-3(f), and initially indicated that it would only allow the document to be identified by Johnson, and not moved into evidence. However, defense counsel later consented to admission of the document, and used the document during his examination of Johnson.
Rule 3:13 has been amended and renumbered since the date of defendant's trial in 2012, at which time the relevant language was set forth at Rule 3:13-3(g). --------
The court did not abuse its discretion in addressing the report's admission under these circumstances. See State v. Marshall, 123 N.J. 1, 134 (1991) ("The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court."), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. McLaughlin, 205 N.J. 185, 205 (2011) (evidentiary rulings reviewed for an abuse of discretion). Moreover, defendant waived his claim of error by consenting to admission of the document. R. 1:7-2; State v. A.R., 213 N.J. 542, 561-64 (2013) (discussing the invited error doctrine).
Finally, defendant has shown no prejudice from the alleged late discovery. R. 2:10-2. Even without the CAD report, defendant was aware of Johnson's testimony and the State's timeline of events. Thus, he was fully able to prepare his response to the State's case. In any event, the document's admission into evidence did not produce an unjust result as the other evidence against defendant was overwhelming.
Defendant next argues that admission of hearsay violated his constitutional right to confront witnesses against him. Specifically, he claims Johnson should not have been permitted to testify on direct examination that the Stafford Township Police Department had reviewed the officer's actions and found "no violation" of the Attorney General Guidelines for motor vehicle pursuits. See N.J. Vehicular Pursuit Policy (revised July 2009), available at http://www.state.nj.us/lps/dcj/agguide/vehpurs_2009.pdf.
Defendant did not object to the testimony below, so our review is for plain error. R. 2:10-2. We find none.
The testimony about which defendant complains did not involve out-of-court testimonial hearsay that was accusatory of defendant. Therefore, the confrontation clause was not implicated. See U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; Davis v. Washington, 547 U.S. 813, 821-22, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 236-37 (2006); Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004); State v. Weaver, 219 N.J. 131, 151-52 (2014); State v. Basil, 202 N.J. 570, 590-93 (2010); State v. Coder, 198 N.J. 451, 468-69 (2009); State ex rel. J.A., 195 N.J. 324, 342-43 (2008). Moreover, the testimony was incapable of producing an unjust result because the question of whether Johnson's pursuit violated the Attorney General's guidelines was irrelevant to the issue of defendant's guilt. R. 2:10-2.
Defendant next complains that in summation the prosecutor improperly referenced his failure to testify. In particular, he complains about the emphasized portion of the following comments:
Once he gets out of the construction zone area Sergeant Johnson was finally able to catch up to him, and . . . [f]or about a mile and a half there, he says, "I've got him clocked at a maximum speed of 125 miles an hour." Defense counsel says that's not possible. There's no evidence to say it wasn't possible. Sergeant Johnson said he looked at his speedometer, and his car was going 125 miles an hour and he's right behind the defendant. That's proof that that's how fast the car was going. There was no evidence brought in to contradict that fact.
[Emphasis added.]
Defendant did not object to these comments at trial Therefore, our review is again for plain error, Rule 2:10-2, and we may presume that defense counsel did not view the remarks as prejudicial at the time. State v. Frost, 158 N.J. 76, 84 (1999). We find no error.
Viewed in context, the prosecutor was not making an improper reference to defendant's failure to testify. See, e.g., State v. Muhammad, 182 N.J. 551, 565-74 (2005). Rather, the prosecutor was responding to defense counsel's summation, in which he argued that the jury should reject Johnson's testimony about defendant's speed as incredible, because defendant's small 1999 vehicle was incapable of reaching 125 miles per hour. The prosecutor was merely noting that there was no evidence in the record as to how fast the vehicle was capable of traveling, whereas Johnson had explained how he determined defendant's speed. Since the prosecutor's comment was a fair response to defense counsel's summation, we reject defendant's argument that the comment was improper. State v. Smith, 212 N.J. 3 65, 404 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); State v. Williams, 317 N.J. Super. 149, 158 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999).
Finally, defendant contends the court erred in denying his motion for a new trial, R. 3:20-1, based upon the admission of the same CAD report. Defendant argued that he was entitled to a new trial because the CAD report set forth times in only hours and minutes, without including seconds, which "effectively denied [defendant] any defense as to time and distance of the pursuit."
We find no merit to defendant's argument. To the extent the report was defective, if at all, it was clear on the face of the document. Defendant did not object to its admission and, in fact, used it at trial. State v. Nash, 212 N.J. 518, 549 (2013). The trial court correctly denied his motion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION