State v. BattleState v. Battle
I
Defendant‘s first argument is that the trial court violated his Fourth Amendment rights by allowing the State to introduce evidence of the alleged marijuana found pursuant to an unlawful search of his car.
The State presented evidence at the suppression hearing that a police officer observed defendant driving an automobile on
According to the officer, he then told defendant and the other occupants that they were under arrest. However, codefendant Harris bolted from the group and began running down the highway. The officer directed Harris to stop or he would shoot. While the officer‘s attention was directed towards the fleeing Harris, defendant got back into his car and began to drive away. Consequently, the officer jumped into the passenger side of the car and tried to turn off the ignition. But defendant prevented the officer from stopping the car by elbowing his chest and hitting his arms. In response, the officer pulled out his gun and hit defendant over the head with it. At this point, with the car travelling approximately 40 miles per hour, defendant pushed the officer out of the car onto the middle lane of the highway. As a result, the officer suffered a broken foot and other injuries. Defendant continued his flight from the scene but surrendered to the police three days later. Harris also was apprehended but the third occupant escaped. The police never recovered the rolling paper or greenish brown vegetation which the officer observed in defendant‘s car.
The trial court concluded on the basis of this evidence that the alleged marijuana in defendant‘s car was discovered as a result of an unlawful search. Specifically, the court concluded
In State v. Casimono, 250 N.J. Super. 173, 182-85, 593 A.2d 827 (App.Div. 1991), certif. denied, 127 N.J. 558, 606 A.2d 370 (1992), we held that an unconstitutional detention or search ordinarily will not bar a conviction for an assault, escape or other offense committed in response to the unlawful police action. Our essential rationale was that extending the fruits of the poisonous tree doctrine to immunize a defendant from prosecution for new crimes committed after police misconduct would give a criminal suspect “an intolerable carte blanche to commit further criminal acts,” which would be “too far reaching and too high a price for society to pay in order to deter police misconduct.” Id. at 184, 593 A.2d 827 (quoting United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir.1982), cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983)).
The exclusionary rule generally prohibits the use in criminal proceedings of evidence obtained in violation of federal or state constitutional rights. James v. Illinois, 493 U.S. 307, 311, 110 S.Ct. 648, 651, 107 L.Ed.2d 676, 682-83 (1990); State v. Johnson, 118 N.J. 639, 651, 573 A.2d 909 (1990). However, “the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561, 571 (1974). Consequently, if application of the exclusionary rule in a particular situation “does not result in appreciable deterrence, ... its use ... is unwarranted.” United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 3032, 49 L.Ed.2d 1046, 1060 (1976). Thus, exceptions to the exclusionary rule have been recognized “where the introduction of reliable and probative evidence would significantly further the truth-seeking function of a criminal trial and the likelihood that admissibility of such evidence would encourage police misconduct is but a `speculative possibility.‘” James v. Illinois, supra, 493 U.S. at 311, 110 S.Ct. at 651, 107 L.Ed.2d at 683. For example, illegally seized evidence may be used in grand jury proceedings, United States v. Calandra, supra, 414 U.S. at 350-52, 94 S.Ct. at 621-22, 38 L.Ed.2d at 573; or to impeach a defendant, United States v. Havens, 446 U.S. 620, 627, 100 S.Ct. 1912, 1916-17, 64 L.Ed.2d 559, 566 (1980); see also
We are satisfied that the presentation of evidence of the events leading up to the alleged aggravated assault and escape committed by defendant, including the police‘s discovery of what appeared to be marijuana, was essential to the “truth seeking function” of this trial. James v. Illinois, supra, 493 U.S. at 311, 110 S.Ct. at 651, 107 L.Ed.2d at 683. One of the offenses defendant was charged with committing was escape, which required the State to establish that defendant “without lawful authority [had removed] himself from official detention,”
Our conclusion that evidence that defendant had marijuana in his car was admissible in his prosecution for aggravated assault and escape, even though it was obtained in violation of the Fourth Amendment, is supported by a line of decisions in other jurisdictions. See, e.g., United States v. Finucan, 708 F.2d 838, 845-846 (1st Cir.1983); United States v. Raftery, 534 F.2d 854 (9th Cir.1976), cert. denied, 429 U.S. 862, 97 S.Ct. 167, 50 L.Ed.2d 141 (1976); United States v. Turk, 526 F.2d 654, 667 (5th Cir.1976), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976); United States v. Lynch, 716 F. Supp. 96 (S.D.N.Y. 1989); State v. Cooper, 9 Conn. App. 15, 514 A.2d 758, 764-65 (1986); Ellison v. State, 410 A.2d 519, 526-27 (Del. Super. Ct. 1979), aff‘d o.b., 437 A.2d 1127 (Del. 1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Taylor v. State, 92 Nev. 158, 547 P.2d 674 (1976); People v. Drain, 73 N.Y.2d 107, 538 N.Y.S.2d 500, 535 N.E.2d 630 (1989); see generally, Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.6(c) (2d ed. 1987). For example, in Ellison the police stopped defendant while he was operating a motor vehicle under circumstances which the court subsequently determined did not justify a stop. Defendant fled from
We believe that the same reasoning is applicable to this case. To permit the police officer whom defendant allegedly assaulted to testify about defendant‘s flight and resistance to arrest without allowing him to describe the surrounding circumstances which lend credibility to the officer‘s account of what occurred, including the discovery in defendant‘s car of what appeared to be marijuana, would eviscerate our holding in Casimono. Therefore, we hold that evidence obtained through an unconstitutional search is admissible at a trial for an alleged assault, escape or other offense committed in response to the unlawful police action.
II
Defendant‘s second argument is that his conviction for resisting arrest must be reversed because he was not indicted for this offense and it was improperly submitted to the jury as a lesser included offense of escape.
To place this argument in proper perspective, it is necessary to set forth the circumstances under which the offense of resisting arrest was submitted to the jury. Defendant testified in his own behalf that when he was stopped by the police he was driving codefendant Harris and another individual identified as “Nafees” to New York City to pick up Nafees’ sister. They parked the car briefly in New York but Nafees said he
Thus, defendant‘s version of the incident corroborated the officer‘s version in many respects. However, defendant testified that he had not been arrested when he fled the scene and that he did not strike or have any intention to injure the officer.
During defendant‘s direct examination, the court noted that, after discussion with counsel, the offense of resisting arrest would be charged as a lesser offense of escape. Defense counsel indicated that he had no objection to this charge. After the court‘s charge to the jury, defense counsel again indicated that he had no objection. During jury deliberations, the jury asked to have the crimes of escape and resisting arrest redefined. At that point, the assistant prosecutor asserted that he wished to place on the record his objection “once more” to the inclusion of the resisting arrest charge because it was not a lesser included offense of escape. But again, defense counsel voiced no objection to this charge.
The jury acquitted defendant of the second degree offense of escape and convicted him of the fourth degree offense of resisting arrest, apparently accepting his theory that he had not yet been placed under arrest at the time he fled but was merely
Since escape requires proof that a defendant was under arrest,
In the absence of a valid waiver, the submission to the jury of an offense which is not a lesser included offense violates a defendant‘s state constitutional right not to be tried except upon “the presentment or indictment of a grand jury.”
In Ciuffreda the Court stated that a defendant ordinarily must make a written waiver of his right to indictment before the court may submit a charge to the jury which is not a lesser included offense within the intent of the Code. State v. Ciuffreda, supra, 127 N.J. at 79, 602 A.2d 267. However, the Court indicated that a valid waiver of the right to indictment may be found under some circumstances notwithstanding the absence of a written waiver executed by the defendant in conformity with
Although defendant was not given any notice before trial that he would be charged with resisting arrest, we find the circumstances in this case equally if not more compelling than in Ciuffreda for finding a valid waiver of defendant‘s right to
In addition, defendant clearly had timely and adequate notice of the court‘s intent to submit resisting arrest to the jury as a lesser offense of escape. Indeed, defense counsel participated in this decision in an off-the-record charge conference and then expressed his consent to the charge on the record. Furthermore, the charge conference occurred in the middle of defendant‘s testimony, during which he in effect denied his guilt of escape and admitted his guilt of resisting arrest. Thus, defendant not only had timely notice that this lesser offense would be submitted to the jury but it may be reasonably inferred that it was submitted upon the request of his attorney for the strategic reasons previously discussed.
A defendant cannot request the trial court to take a certain course of action, take his chance on the outcome of the trial and “then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.” State v. Ramseur, 106 N.J. 123, 282, 524 A.2d 188 (1987) (quoting State v. Pontery, 19 N.J. 457, 471, 117 A.2d 473 (1955)). By his acquittal of the charge of escape, defendant apparently obtained a substantial benefit
III
Defendant also argues that the trial court should have merged his conviction for aggravated assault upon a police officer into his conviction for resisting arrest. However, such a merger would be improper because resisting arrest is a fourth degree offense and aggravated assault upon a police officer is a third degree offense and, absent a clear expression of contrary legislative intent, a crime of a greater degree cannot be merged into one of lesser degree. State v. Dillihay, 127 N.J. 42, 54-55, 601 A.2d 1149 (1992); State v. Hammond, 231 N.J. Super. 535, 545, 555 A.2d 1169 (App.Div.), certif. denied, 117 N.J. 636, 569 A.2d 1336 (1989).
Although defendant does not expressly seek to merge his conviction for resisting arrest into his conviction for aggravated assault, that form of merger also would be improper. According to
IV
Defendant argues that the police officer‘s testimony regarding the contents of the plastic bag was “other crimes” evidence which was inadmissible under Evidence Rule 55. However, Rule 55 applies only to “conduct that occurred on other occasions” and not to conduct which is “part of the total criminal event on the same occasion.” State v. Ortiz, 253 N.J. Super. 239, 249, 601 A.2d 735 (App.Div. 1992) (quoting State v. Sease, 138 N.J. Super. 80, 85, 350 A.2d 262 (App.Div. 1975)). Here, the police officer‘s testimony that he observed what he believed to be marijuana in a bag discovered in defendant‘s car and then placed defendant under arrest was part of “the total criminal event” for which defendant was charged and not evidence of a crime committed on another occasion. Therefore, Rule 55 has no applicability. Furthermore, even if the police officer‘s observations would have been insufficient to establish defendant‘s guilt of the drug charges, they were directly relevant
V
Defendant also argues that the prosecutor made improper comments at trial which deprived him of a fair trial. This argument is clearly without merit and does not require discussion.
VI
Finally, defendant argues that he was entitled to a presumption of a noncustodial sentence, which the State failed to overcome, and that his sentence was excessive.
The presumption in favor of a noncustodial sentence applies only to “a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense.”
Furthermore, even if defendant had been entitled to a presumption of a noncustodial sentence, the presumption was overcome because defendant acted in an especially depraved manner when he pushed a police officer from his speeding car onto a major highway. Consequently, the nature and circumstances of the offense warranted the conclusion that defendant‘s
Affirmed.