DOCKET NO. A-5121-10T1
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). William W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-03-0997.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
William W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a four day jury trial, defendant Leron Selby was found guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) (count two); and third-degree possession with intent to distribute a controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three). Following the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), the trial judge, on November 19, 2010, merged counts one and two into count three and sentenced defendant to an extended term of six years incarceration with three years parole ineligibility.
We briefly summarize the facts based on the evidence presented at trial.
On February 7, 2008, at approximately 12:05 a.m., Officer Daniel Torres of the Camden City Police Department was traveling in the neighborhood of Haddon Avenue and Park Boulevard in the Parkside area of Camden. The area was within 1,000 feet of Forrest Hill School and Parkside School. The officer was in a marked black and white police car and wearing his uniform. As he was driving up Park Boulevard, he approached the intersection of Princess Avenue and observed several individuals loitering in between two abandoned houses. At trial, the officer identified defendant, and noted the area had been well lit with nothing obstructing his view of defendant.
While the officer was still in his vehicle, "the defendant's body was angled sideways looking towards the other individual facing Kenwood and the other individual was facing Haddon on an angle." From his position, Torres observed defendant with "some type of clear plastic bag in his hand about to hand the individual another small item." Torres elected to approach the parties, and advised other units on Haddon Avenue of his advance. He made a U-turn at the intersection of Kenwood so his vehicle was then directly facing Princess Avenue with Kenwood Avenue facing the opposite direction. Torres drove his car towards the individuals and when defendant noticed the officer, he quickly turned around and started walking away towards Kenwood Avenue. The officer stated, "as I pulled up and exited my vehicle I asked him to stop." The officer then repeated the request to stop.
Rather than stopping, defendant ran through the gate at 1309 Kenwood Avenue and entered the house. Torres chased him through the front door and into a back storage room. After an attempt to open the back door, defendant discarded the plastic bag he was holding onto a pile of clothing and surrendered to Torres. Defendant was secured and Torres retrieved the dropped item; a sandwich bag containing thirty-nine heat-sealed baggies of cocaine. Neither cash nor drug paraphernalia was recovered from defendant.
During a pre-trial suppression hearing, Torres testified that he chased defendant into 1307 Park Boulevard. He clarified at trial that defendant had instead fled into 1309 Park Boulevard, and he had mistakenly recorded the wrong address in his police report.
Defendant's "cousin," Danasha Goodwater, testified on behalf of the defense. She gave an initial statement to defense counsel a few days before trial. She acknowledged that defendant informed her at that time that the prosecution now submitted that the arrest took place at 1309 instead of 1307 Park Boulevard. Goodwater lived at 1307 Park Boulevard with her mother, son, and stepfather. She had lived there for eighteen months, and had minimal contact with the residents of 1309 Park Boulevard. On February 7, 2008, she had been home during the day. On that day, defendant had stopped by her house earlier to take a nap, left shortly thereafter, and returned on two occasions later that evening.
Defendant's mother and Goodwater's mother were second cousins.
After defendant returned for the third time, Goodwater recalled that her mother, aunt, stepfather and defendant were standing on her front porch talking. She went inside to check on her baby, defendant followed, they "exchanged words," and "he was walking towards the bathroom." Then, "four cops came in." Goodwater went upstairs to check on her baby, unescorted by any of the officers. During the incident, she only noticed officers at 1307 Park Boulevard and directly outside; she never observed officers at 1309 Park Boulevard. None of the other individuals purportedly on the porch with defendant testified.
At the charge conference, the trial judge advised counsel that he planned to read a charge on flight. Defense counsel did not object to a flight charge, but clarified his request for certain specifications in the charge. The following colloquy took place:
DEFENSE COUNSEL: I think that the proper thing to say would be that he [defendant] denies— I guess he denies the acts constituted flight because the inference is that he departed. In fact, I argued he departed and didn't flee . . .
THE COURT: We can use both if there's no action. We can say defendant denies any flight or defendant denies the acts constituted flight. They're not exclusive, but I'll hear you which you prefer.
DEFENSE COUNSEL: The defendant denies that-denies any flight as will be defined by the law or that acts constitute flight . . .
THE COURT: You're asking for defendant denies that the acts constituted flight?
DEFENSE COUNSEL: Yeah.
At the request of defense counsel, arguing it would affect his summation trial strategy, the judge deferred a final decision on that portion of the charge until after summations. Defense counsel requested that the judge charge the sentence from the model charge- "The defendant denies any flight" and not the alternate- "the defendant denies that the acts constituted flight." The judge gave the requested charge as part of the model charge on flight. These instructions largely tracked Model Jury Charge Criminal, "Flight," (May 10, 2010). Defendant did not request the alternate charge that might be appropriate when a defendant does not deny that he departed the scene of the crime, but suggests an explanation.
That portion of the model charges states:
There has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defense has suggested the following explanation:
(SET FORTH EXPLANATION SUGGESTED BY DEFENSE)
If you find the defendant's explanation credible, you should not draw any inference of the defendant's consciousness of guilt from the defendant's departure.
In his summation, defense counsel argued that the police went to 1307 and, in effect, planted the drugs there. He did not contend that the police chased defendant into either 1307 or 1309.
On appeal, defendant raises the following issue for our consideration:
EVEN IF THE FLIGHT CHARGE WAS GENERALLY APPROPRIATE, THE TRIAL JUDGE ERRED IN FAILING TO TAILOR IT TO THE PARTICULAR FACTS OF THE CASE, DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
Defendant contends that the judge erred by charging flight in the first instance and thereafter provided erroneous instructions by not including an explanation by the defendant.
"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). However, mere departure is distinguishable from "flight."
For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.
[State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).]
The Supreme Court, expressly referencing our model jury charge on the issue, recently said, "evidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension." State v. Ingram, 196 N.J. 23, 46, (2008). "[D]eparture to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47.
The propriety of admitting the evidence and delivering the instruction
depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
[State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010) (emphasis omitted) (quoting Mann, supra, 132 N.J. at 420).]
Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).
Defendant contends that the flight charge was not adequately linked with the facts presented a trial and that the judge erred by not sua sponte charging the "explanation by defendant" section of the model charge. We disagree and conclude that the judge did not abuse his discretion in providing the flight instruction and that omitting the "explanation by defendant" charge was not error.
Torres was clear that he chased the defendant into 1309 Park Boulevard after twice commanding defendant to stop. Goodwater's testimony was that there was no flight by defendant or chase by the police. The evidence was more than sufficient to permit the jury to infer that defendant fled to avoid apprehension on these charges.
We also reject the argument that the flight charge as given was erroneous. Because defendant never objected at trial, we review the contention for plain error. See R. 2:10-2; State v. Brown, 190 N.J. 144, 160 (2007). In the context of a jury charge, plain error is a "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." State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970))).
Where a defendant offers an explanation for his flight, the judge must "clearly apprise the jury that if they credited the explanation . . . they should not draw any inference relative to guilt against such defendant." State v. Leak, 128 N.J. Super. 212, 217 (App. Div.), certif. denied, 65 N.J. 565 (1974). Here, defendant offered no explanation for his flight after being ordered twice to stop. Defendant's contention was there was no flight.
The charge as given provided the jury with "sufficient guidance" and did not create any "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991). We find no basis to reverse on this ground.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION