NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1344-14T2 A-3634-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. June 13, 2017
DAMMEN D. MCDUFFIE, APPELLATE DIVISION a/k/a BUCKEY MCDUFFIE, DAMEN MCDUFFY, DAMEN MCDUGGY,
Defendant-Appellant. _______________________________
Plaintiff-Respondent,
v.
HAKEEM A. CHANCE, a/k/a HAKIM CHANCE,
Submitted May 4, 2017 – Decided June 13, 2017
Before Judges Lihotz, O'Connor and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-12-1785.
Joseph E. Krakora, Public Defender, attorney for appellant Dammen D. McDuffie (Alison Perrone, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Hakeem Chance (Gilbert G. Miller, Designated Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
In these back-to-back appeals, co-defendants Dammen D.
McDuffie and Hakeem A. Chance, jointly tried before a jury,
separately appeal from a July 29, 2014 judgment of conviction.
Co-defendants argue the trial judge impermissibly denied their
motions requiring the State to release information regarding a
global positioning system (GPS) tracking device used to prove
their involvement in two burglaries. Also, co-defendants argue
the judge erroneously admitted testimony regarding the prior
military training of a police officer, who identified McDuffie as
the passenger in the vehicle driven by Chance. More specifically,
each defendant articulates these challenges, seeking to vacate his
conviction:
POINT ONE
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WITH A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE BY SUSTAINING DETECTIVE ECKERT'S REFUSAL TO DISCLOSE INFORMATION REGARDING THE MODEL NUMBER OF THE
2 A-1344-14T2 GPS TRACKING DEVICE INSTALLED ON THE BMW, THE LOCATION WHERE IT WAS INSTALLED, THE TYPE OF BATTERY WHICH POWERED THE DEVICE, AND THE LENGTH OF TIME IT COULD BE EXPECTED TO HOLD A CHARGE SUFFICIENT TO TRANSMIT RELIABLE DATA.
POINT TWO
TESTIMONY THAT DETECTIVE AROCHAS WAS A TRAINED MILITARY SHARPSHOOTER AND THUS HAD SPECIAL TRAINING AND EXPERTISE IN MAKING RELIABLE SPLIT-SECOND IDENTIFICATIONS WAS NOT RELEVANT, AND ITS POTENTIAL FOR PREJUDICE FAR OUTWEIGHED WHATEVER PROBATIVE VALUE IT MIGHT HAVE HAD.
Finally, each defendant challenges the imposed sentence as
manifestly excessive.
We have reviewed these arguments in light of the record and
applicable law. We affirm each conviction. However, insufficient
factual findings require we remand for resentencing and correction
of the judgments of conviction.
We recite the facts related to the issues on appeal, taken
from the record of the ten-day trial. After obtaining a warrant,
Detective James Eckert, of the Bergen County Prosecutor's Office
(BCPO), installed a tracking device on a dark blue BMW X6 (BMW)
registered to Chance's mother. The designated device is available
only to law enforcement; however, components of the device,
including the GPS chip, are sold commercially. The GPS records
location data on the device itself, and transmits its position via
3 A-1344-14T2 cell towers, which allows police to track the device location in
real time on a laptop.
On July 12, 2012, a joint surveillance team commenced the
operation. The team consisted of detectives from the BCPO Special
Investigation Squad who were assisted by local police, operating
three unmarked vehicles. BCPO Sergeant John Booth was in charge
of the team. He occupied the tracking vehicle, which was driven
by Detective Jonathan Arochas and contained Detective James
Eckert, the GPS expert, and Detective Michael Falotico. The first
of two trailing vehicles contained only BCPO Detective Elliott
Cookson; the other vehicle, driven by Detective Edward Young of
the Fort Lee Police Department, was also occupied by undercover
officers from Hackensack and Teaneck. The officers in the three
vehicles communicated with one another using portable radios.
Detective Eckert tracked the BMW in real time via the GPS data
transmitted to his laptop, and the officers in the trailing
vehicles maintained intermittent visual contact with the BMW.
In the days leading up to the investigation under examination,
the accuracy of the GPS device was checked, using visual
observations. Immediately prior to the events on the evening of
July 12, 2012, Detective Eckert confirmed the GPS device was
functioning properly and accurately recording the BMW's location.
Specifically, Detective Eckert observed the BMW in the parking lot
4 A-1344-14T2 of the Hilton Hotel in Hasbrouck Heights, the same location the
GPS pinpointed the BMW.
At 7 p.m. Detective Young observed Chance enter the BMW,
still parked at the Hilton in Hasbrouck Heights, and drive off.
Detective Eckert used the GPS device while occupying the tracking
vehicle, and the trailing vehicles confirmed the BMW, driven by
Chance, traveled to Englewood and stopped on William Street, across
from McDuffie's address, at 7:32 p.m. Chance returned to the
Hilton and again began to travel at 8:42 p.m. The BMW was tracked
to the vicinity of Dubois Court, Englewood, where it stopped for
two minutes. Detective Eckert acknowledged Dubois Court, which
is not a public street, was not specifically displayed on the
laptop map. No officer physically observed McDuffie enter the
BMW. However, Detectives Cookson and Eckert noted Chance and a
black male passenger in the BMW when it stopped for gas on Route 4.
The police continued to track the BMW as it headed North on
the Garden State Parkway and exited in Nutley at 9:31 p.m. After
driving around Nutley, at 9:40 p.m., the BMW drove down Spatz
Avenue, a cul-de-sac, turned around, drove one block over and
parked on Margaret Avenue. The BMW remained parked on Margaret
Avenue for eleven minutes. During this time, the three law
enforcement vehicles were parked approximately three blocks away,
5 A-1344-14T2 and the officers did not observe the BMW parked on Margaret Avenue
or see defendants.
A few minutes after 10 p.m., Sergeant Booth received a call
from the Nutley Police Department, informing him police received
notice an alarm was triggered from a home on Spatz Avenue. Later
that evening or early the next morning, Nutley police also received
information regarding the robbery of a second home on Spatz Avenue.
Spatz Avenue is a short dead end street, with the dead end
abutting the Garden State Parkway. The two vandalized homes on
Spatz Avenue sit adjacent to one another. The first owner
testified his residence, from which the alarm call was sent, was
ransacked, but nothing was stolen. The second owner, a Newark
Police Officer, reported his home was broken into some time while
he was at work and listed missing items as a laptop, an iPod, $400
cash, and $14,500 in jewelry.
After receiving the call from the Nutley police, Detective
Booth instructed the trailing vehicles to stop the BMW. Detective
Cookson pulled behind the BMW. The BMW, followed by Cookson,
passed the parked second trailing vehicle, which joined the
pursuit. Finally, the tracking vehicle followed behind the other
two police vehicles.
When the BMW stopped at a traffic light located at the
intersection of Centre Street and East Passaic Avenue, Detective
6 A-1344-14T2 Arochas pulled alongside the BMW and activated the police lights
and siren to commence a motor vehicle stop. Detective Cookson
attempted to pull in front of the BMW to block its lane of travel.
Before he could do so, the traffic signal changed, the BMW
accelerated, and collided with Detective Cookson's vehicle. The
BMW then slammed into Detective Arochas's vehicle. As a result,
the laptop was jarred from Detective Eckert's grasp and closed,
terminating the real time GPS link. The BMW swerved again, hitting
Detective Young's vehicle and sped away.
The BMW accelerated, reaching a high rate of speed; it ignored
several traffic signals, and drove on the wrong side of the road.
Detective Arochas led the police pursuit and maintained consistent
visual contact. He watched the BMW strike a center concrete
barrier, while making a sharp left turn. The impact punctured the
front left tire, yet the vehicle continued traveling on the rim.
The BMW could not negotiate a curve on Long Hill Road, Little
Falls, on three wheels and collided into a stone wall.
As Detective Arochas's vehicle pulled perpendicular to the
stopped BMW, the passenger briefly turned and faced him. Detective
Arochas was able to get a full view of the passenger's face,
illuminated by headlights, before the passenger turned away and
fled the BMW. Chance also abandoned the vehicle, but was found
7 A-1344-14T2 approximately fifty feet from the crash site and arrested. Despite
Detective Young's efforts, the passenger escaped.
Detective Eckert retrieved the GPS device and downloaded the
location data. The subsequent search of the BMW recovered two
iPhones traced to Chance, a mini flashlight, a black bandana, ski
mask and one sneaker on the driver's side, and a pair of sneakers
and a cell phone on the passenger's side. None of the reported
stolen property was recovered or found along the chase route.
In an unrelated investigation, another officer provided a tip
to Detective Arochas, received from a credible confidential
informant that "Dammen McDuffie" was involved in the burglaries.
Detective Arochas determined McDuffie lived on Dubois Court in
Englewood, the same area where the BMW stopped prior to proceeding
to Spatz Avenue on July 12. Searching motor vehicle records, he
found McDuffie's photograph and instantly recognized him as the
passenger he saw in the BMW. Police obtained an arrest warrant
and went to McDuffie's residence.
McDuffie was located, standing behind his vehicle, in the
parking lot outside his home on Dubois Court. Four unmarked police
vehicles, carrying at least five officers, including Detectives
Eckert and Young, which surrounded McDuffie, identified
themselves, and attempted to place him under arrest. When ordered
to get on the ground, McDuffie unsuccessfully attempted to run,
8 A-1344-14T2 but was grabbed and arrested. McDuffie resisted efforts to
handcuff him.
At trial, Sergeant John Booth, Detectives Eckert, Arochas,
and Falotico, who were in the tracking vehicle on July 12, along
with Detectives Cookson and Young from the trailing vehicles,
testified. Detectives Eckert and Cookson identified Chance as the
driver of the BMW. Detective Young described the male passenger
in the BMW; Detective Arochas specifically identified McDuffie as
the passenger he saw flee following the crash.
At the close of evidence, the jury convicted McDuffie of two
counts of third-degree burglary, N.J.S.A. 2C:18-2, and the
disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2.
He was acquitted of hindering apprehension. Chance was convicted
of two counts of third-degree burglary, three counts of second-
degree eluding/failure to stop, N.J.S.A. 2C:29-2(b), and eight
counts of fourth-degree aggravated assault on a police officer,
N.J.S.A. 2C:12-1(b)(5)(A). McDuffie's motion for a new trial was
denied. Sentence was imposed for each defendant and this appeal
followed.
Co-defendants seek to reverse their convictions challenging
the admissibility of evidence from the GPS unit and testimony
regarding Detective Arochas's prior military training. The
standard for reviewing these issues requires we consider whether
9 A-1344-14T2 the trial judge abused his discretion. State v. Ates, 426 N.J.
Super. 521, 537 (App. Div. 2012), aff’d, 217 N.J. 253 (2014),
cert. denied, __ U.S. __, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014).
We consider these two issues.
Co-defendants argue their right to a fair trial was impeded
because the judge denied their motions to suppress the GPS data
and to disclose specific information regarding the nature and
location of the GPS device. During a December 19, 2013, pre-trial
Rule 104 hearing, Detective Eckert, who personally installed the
device, was the only witness. He testified regarding his training
and expertise with the GPS device. He stated the device's efficacy
was dependent upon proper use and acknowledged on occasion the
device distorted speed or displayed inaccurate information when
losing power or when the signal was disrupted by reflections from
water or very tall structures. During cross-examination,
Detective Eckert declined to disclose the model of the GPS device,
where police installed the device on the BMW, the exact battery
used to power the device and the duration of a single charge.
Detective Eckert confirmed the device was used not just in Bergen
County, but by hundreds of other law enforcement agencies across
the country. Co-defendants objected, asserting non-disclosure of
the identifying information prevented them from engaging an expert
who could contest the reliability of the GPS readings.
10 A-1344-14T2 The trial judge considered and rejected co-defendants'
arguments. He stated co-defendants' requests would provide
information to identify "the actual item," disseminating the exact
GPS device, now exclusively accessible to law enforcement, to
"many people." Further, he noted co-defendants retained the
opportunity to cross-examine Detective Eckert and retain an expert
if they chose. He concluded the GPS data was admissible. At
trial, Detective Eckert was again asked where the device was
installed on the BMW. The State's objection was sustained.
On appeal, co-defendants maintain withholding the GPS
information impeded their ability to assert a complete defense,
thus violating their due process rights. See Crane v. Kentucky,
476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645
(1986) ("[T]he Constitution guarantees criminal defendants 'a
meaningful opportunity to present a complete defense.'" (quoting
California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532,
81 L. Ed. 2d 413, 420 (1984))). The issue implicates the
government's privilege to protect law enforcement methods.
Our law includes authority addressing the law enforcement
privilege, when police seek to protect the identity of informants.
In State v. Milligan, 71 N.J. 373 (1976), the Supreme Court noted
at "common law" there exists a "governmental privilege to withhold
the identity of informants who assist law enforcement officials."
11 A-1344-14T2 Id. at 380; see also Cashen v. Spann, 66 N.J. 541, 552, cert. den.
423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975) (recognizing
the government's privilege to protect confidential informants).
Currently, N.J.R.E. 516 recognizes this privilege, as set forth
in N.J.S.A. 2A:84A-28, which states:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
The right to anonymity of informants, however, is "not
absolute." Milligan, supra, 71 N.J. at 383. In criminal
prosecutions, a court must balance the competing interests of
criminal defendants and the State, a concept stated in federal
jurisprudence.
The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible
12 A-1344-14T2 significance of the informer's testimony, and other relevant factors.
[Id. at 384 (quoting Rovario v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)).]
If the State can demonstrate the applicability of a qualified
privilege not to disclose sensitive investigation techniques the
"court then must balance the public interest in nondisclosure
against 'the need of a particular litigant for access to the
privileged information,' . . ." United States v. Matish, 193 F.
Supp. 3d 585, 597 (E.D. Va. 2016) (quoting In re The City of New
York, 607 F.3d 923, 948 (2d. Cir. 2010)).
The Court emphasized this test requires a defendant to
demonstrate a need for the specific information the government
seeks to protect. "[F]rivolous demands for information [or]
unsubstantiated allegations of need" will not be enough to justify
disclosure because "[s]omething more than speculation should be
required of a defendant before the court overrules an informer's
privilege of nondisclosure." Milligan, supra, 71 N.J. at 393. It
is now well established that "absent a strong showing of need,
courts generally deny disclosure where the informer plays only a
marginal role, such as providing information or 'tips' to the
police or participating in the preliminary stage of a criminal
investigation." Id. at 387; see also State v. Hernandez, 225 N.J.
13 A-1344-14T2 451, 467 (2016) (applying Milligan's balancing test stating: "At
least at this stage, we cannot find that the disclosure of the
Witness's identity in the unrelated investigations is necessary
for defendants to receive a fair trial in this case."); State v.
Florez, 134 N.J. 570, 578 (1994) ("Without a strong showing of
need, courts will generally deny a request for disclosure.").
The State has also asserted the privilege when declining to
disclose surveillance vantage points. See State v. Garcia, 131
N.J. 67, 70 (1993). The privilege, set forth in N.J.R.E. 515, is
grounded on N.J.S.A. 2A:84A-27, which provides:
No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.
In Garcia, the Court held the precise location of a law
enforcement surveillance vantage point remained privileged if
there is "a realistic possibility that revealing the location
would compromise present or future prosecutions or would possibly
endanger lives or property." Garcia, supra, 131 N.J. at 78. If
the State makes such a preliminary showing, disclosure of the
location should only occur where it "infringes on a defendant's
constitutional rights." Id. at 79; see also State v. Laws, 262
14 A-1344-14T2 N.J. Super. 551, 558-59 (App. Div.), certif. denied, 134 N.J. 475
(1993).
As in the case of overcoming an informant's privilege, a
defendant must first articulate an actual need for disclosure
related to the defense. "Absent some showing of need by a
defendant for the exact surveillance location, the trial court
should deny its disclosure. In reaching that conclusion we note
'the ease with which the privilege would be destroyed if disclosure
were required without a substantial showing of need for it.'"
Garcia, supra, 131 N.J. at 80-81 (quoting State v. Oliver, 50 N.J.
39, 47 (1967)).
Accordingly, when considering application of the privilege
provided in N.J.R.E. 515, a judge engages a Milligan-type balancing
test, weighing "the crime charged, the possible defenses, the
potential significance of the privileged information and other
relevant factors." State v. Zenquis, 131 N.J. 84, 88 (1993)
(citing Garcia, supra, 131 N.J. at 80-81). An added requirement
identified in this analysis is the degree to which the testimony
of the surveillance officer is corroborated by other evidence.
Garcia, supra, 131 N.J. at 82-83 (denying disclosure of
surveillance location noting corroboration of the criminal
activity was provided by an informer's information and drugs found
in the location when identified by the police officer conducting
15 A-1344-14T2 surveillance); see also Zenquis, supra, 131 N.J. at 88-89
(requiring disclosure of surveillance vantage point to protect the
defendant's confrontation rights because there was no
corroboration and no drugs discovered on the suspects or in the
identified location).
These authorities provide guidance to examine defendant's
demand for disclosure of the GPS device specifics, which the State
claims are privileged. Although the exact issue has not been
addressed by our appellate courts, these guidelines must be
followed in weighing these interests.
First, we emphasize a defendant's broad claim of need for
disclosure of police procedures, claimed to be privileged, is
insufficient to compel disclosure. Rather, a particularized need
related to advance a stated defense must be shown. Florez, supra,
134 N.J. at 578 (stating disclosure should be denied unless the
criminal defendant makes a sufficient "showing of need" for the
information); Garcia, supra, 131 N.J. at 80 ("If the State meets
its preliminary burden for application of the privilege, the court
should permit disclosure if the information sought is relevant and
helpful to the defense or essential to a fair determination of the
case.").
Second, the judge must determine whether the opportunity to
cross-examine the officer, asserting non-disclosure based on
16 A-1344-14T2 privilege, satisfies a defendant's need to challenge the
credibility of the testifying witness. For example, inquiry
regarding specific techniques to use the device, issues affecting
the officer's ability to effectively use the equipment, known or
demonstrated flaws or deficiencies in use, are easily raised on
cross-examination to challenge the proficiency of the user and
even the accuracy of the device.
Third, law enforcement must provide corroborating evidence
extrinsic to the GPS, which ensures a defendant's rights of
confrontation and fair trial are protected. As with a claimed
confidential surveillance location, some corroboration is
necessary to confirm the reliance of GPS location evidence.
Finally, whether a defendant has the opportunity to provide
expert testimony to attack the evidence without disclosure of the
requested information must be weighed.
Here, co-defendants do not challenge Detective Eckert's
qualifications as an expert in the use of the GPS device. See
N.J.R.E. 702 ("If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise."); see
also United States v. Thompson, 393 F. App'x 852, 858 (3d Cir.
17 A-1344-14T2 2010) (holding the trial judge properly allowed a lay witness to
testify to the results of GPS tracking where the witness had
particularized knowledge of the GPS's reliability by virtue of his
experience using the device). Rather, we deduce co-defendants'
claims seeking the GPS device specifications and location on the
BMW challenged the accuracy and reliability of the GPS device's
technology and reported information.
Generally, the accuracy of GPS devices is accepted. "[I]n
assessing the Fourth Amendment constraints associated with GPS
tracking, courts generally have assumed the technology's
accuracy." United States v. Brooks, 715 F.3d 1069, 1078 (8th Cir.
2013). Our courts routinely order GPS technology to supervise
individuals released pending trial or on parole. See N.J.S.A.
30:4-123.92 (establishing a program for the continuous, satellite-
based monitoring of sex offenders); N.J.S.A. 2A:162-17(b)(2)(a)-
(1) (permitting the court to place non-monetary conditions on pre-
trial release, including GPS monitoring). Moreover, commercial
GPS units are widely available, and "smart phones" and laptops all
contain a form of GPS tracking capability. See United States v.
Jones, 565 U.S. 400, 428-31, 132 S. Ct. 945, 962-64, 181 L. Ed.
2d 911, 933-34 (2012) (Alito, J., concurring) (noting modern
devices contain GPS, the technology is ubiquitous and represents
an inexpensive alternative to traditional physical surveillance);
18 A-1344-14T2 id. at 415, 132 S. Ct. at 955, 181 L. Ed. 2d at 925 (Sotomayor,
J. concurring) ("GPS monitoring generates a precise, comprehensive
record of a person's public movements that reflects a wealth of
detail. . . ."); see also State v. Earls, 214 N.J. 564, 578-79
(2013) (discussing GPS technology used in cell phones).
Nevertheless, we have no doubt an expert in this area could opine
on what alters the accuracy of a GPS device, including what
information must be evaluated to make the determination. Co-
defendants offered no such proofs.
Perhaps recognizing these holdings, and noting a challenge
to the accuracy of the GPS device required expert testimony, see
State v. Martini, 160 N.J. 248, 263 (1999) (holding expert
testimony may be admitted where the accuracy or trustworthiness
of evidence is challenged), co-defendants argue their ability to
obtain an expert was precluded because the information was not
revealed. We are not persuaded by co-defendants' circular
reasoning.
The State revealed the computer chip technology responsible
for sending and receiving radio signals, employed by the GPS device
and released the actual location data the device collected. The
related datasheet included the manufacturer of the computer sheet
and the recorded location of the BMW, the number of satellites the
device was connected to, and the accuracy, to the meter, of the
19 A-1344-14T2 reported location. In our view, this technical data provides an
adequate foundation for an expert to identify any additional
information necessary to challenge the GPS device's accuracy. Co-
defendants did not present an affidavit of an expert to explain
common areas of unreliability of GPS devices or offer a link to
how the location on the BMW affected the device's reporting.
Moreover, no expert explained what information was needed to make
this assessment. The lack of expert testimony or other evidence
to establish how the undisclosed information was "essential to a
fair determination of the case," defeats co-defendants' request
for disclosure. Garcia, supra, 131 N.J. at 80.
Co-defendants also suggest the sole evidence tying them to
the scene of the burglaries was the GPS data, requiring the
requested disclosures. As we stated above, corroboration is
necessary. Zenquis, supra, 131 N.J. at 89. Based on the record
evidence, we reject co-defendants' assertions as unfounded.
Unrefuted facts prove police tested the accuracy of the GPS device
prior to commencing surveillance. Detective Young saw Chance
enter the BMW and Detective Cookson confirmed two men occupied the
BMW after it was shown to stop near McDuffies' residence. The BMW
was observed exiting the highway in Nutley, and after a house
alarm was tripped on Spatz Avenue, the BMW passed the trailing
surveillance vehicles prior to stopping at the light on Centre
20 A-1344-14T2 Street and East Passaic Avenue as it headed toward the Parkway
entrance. These uncontroverted facts sufficiently corroborate the
GPS data confirming the location of the BMW occupied by defendants.
Co-defendants further urge reversal arguing the trial judge
ignored proof of "inconsistencies" in the GPS readings, which
showed the device incorrectly recorded the BMW traveled at various
implausible speeds. The "inconsistencies" in the GPS data
identified by co-defendants were examined during Detective
Eckert's testimony. He admitted certain readings showed a
"mistake, but only in speed, not in GPS location." The evidence
was not offered to prove speed, nor was speed an element of any
offense charged.
Having considered each of these arguments, we reject co-
defendants' claim the trial judge abused his discretion in denying
their motion for disclosure. See State v. Sessoms, 413 N.J. Super.
338, 342 (App. Div. 2010). The judge balanced the competing
considerations and weighed the claimed needs presented by the
State and co-defendants. In light of co-defendants' general claim
for release of the GPS specifications and its location on the BMW,
and the absence of a showing of need for these specifics, we
conclude the interests of the State must prevail to protect ongoing
and future investigations.
21 A-1344-14T2 Co-defendants' next challenge the admission of Detective
Arochas's prior military training, as aiding his identification
of McDuffie, despite viewing him for "a split second" in nighttime
conditions. Detective Arochas testified his training as a Marine
Corps sniper provided special training and expertise, which
enabled him to remember faces.
Co-defendants assert the trial court erred in admitting
statements Detective Arochas was trained as a Marine Corps sniper,
not relevant to his ability to identify the passenger in the BMW.
Co-defendants maintain Arochas's prior military training had no
relationship to his ability to observe "from mobile vantage points
and . . . make reliable split second identifications under . . .
hectic, harrowing and distracting circumstances."
The issue arose in limine, as co-defendants moved to bar
Detective Arochas background training and experience, arguing the
testimony was prejudicial. The trial judge denied the motion
concluding this background, specifically the training involving
memory tests to recall observed details, was relevant to the
detective's ability to identify McDuffie.
When Detective Arochas was questioned regarding his "special
training and experience" as a Marine, McDuffie's objection was
overruled. Detective Arochas then testified he attended the Marine
Corps sniper school and underwent three-months of training in
22 A-1344-14T2 "memory, observation, and concentration." He explained the
"memorization school" required "burning an image into your head
so you can identify the objects later. . . . [Y]ou'll look at a
picture for a brief split second, then you'll . . . write down
what you saw in that picture[,]" requiring recall of seven of ten
objects to qualify as a sniper. He then described his observations
of McDuffie during the investigation and chase. He insisted his
prior training enabled him to remember McDuffie's facial
characteristics, even though he saw him very briefly.
An evidentiary decision is reviewed for an abuse of
discretion. "To demonstrate abuse of such discretion, the danger
of undue prejudice must outweigh probative value so as to divert
jurors 'from a reasonable and fair evaluation of the basic issue
of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991)
(quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.),
certif. denied, 111 N.J. 653 (1988)).
N.J.R.E. 403 allows a court to exclude relevant evidence "if
its probative value is substantially outweighed by the risk of (a)
undue prejudice, confusion of issues, or misleading the jury or
(b) undue delay, waste of time, or needless presentation of
cumulative evidence." The challenged testimony related to
Detective Arochas's ability to observe and recall details,
23 A-1344-14T2 explicitly, a suspect's physical appearance, which related to
identification at the scene.
Co-defendants repeat their objection related to the "sniper
training" testimony, insisting it was not relevant and was
excessively prejudicial. The arguments do not explain why the
described memory training and testing was not relevant to Detective
Arochas's recall. Co-defendants' arguments merely suggest
nighttime conditions, limited lighting, and rapidly changing
events impeded the detective's observations and concentration,
areas we note that were fully explored on cross-examination.
We reject as lacking merit the claims of error, arguing
Detective Arochas "was not qualified as an expert in
identification" and his statements caused the jury to ignore the
jury instruction directed to the accuracy of cross-racial
identifications. The testimony was not an area admissible only
if supported by expert opinion. Further, "we trust juries to
follow instructions." State v. Short, 131 N.J. 47, 65 (1993). We
have no reason to conclude the jury did not do so in this case.
Accordingly, we conclude the trial judge did not abuse his
reasoned discretion when reviewing the evidence and rejecting co-
defendants' motion to bar admission of Detective Arochas's prior
qualifications. State v. Collier, 316 N.J. Super. 181, 193 (App.
Div. 1998), aff’d, 162 N.J. 27 (1999). Nor do we conclude the
24 A-1344-14T2 testimony substantially prejudiced co-defendants or led the jury
to an unjust result.
We now examine each defendant's arguments asserting errors
requiring remand and resentencing. McDuffie challenges the
sentences imposed a five-year term, subject to a two and one-half
year term of parole ineligibility for the burglary count one; a
discretionary extended ten-year term with a five-year period of
parole ineligibility on the third-degree burglary conviction in
count two, to be served consecutive to the sentence in count one;
and a consecutive six-month term for resisting arrest in count
twenty — were insufficiently supported. Not only does defendant
assert the judge erroneously applied aggravating factor two,
(gravity and seriousness of harm inflicted on the victim), a point
conceded by the State, he also argues findings underpinning the
imposition of the discretionary extended term were not fully
articulated, see State v. Dunbar, 108 N.J. 80, 89 (1987)
(delineating a four-part test when imposing a discretionary
extended term sentence), then double counted when applying
aggravating factors three (risk of re-offense), six (extent of
prior record) and nine (need for deterrence), N.J.S.A. 2C:44-1(a)
(3), (6), (9). McDuffie also challenges the support for imposing
consecutive sentences as flawed and insufficient. See State v.
25 A-1344-14T2 Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S.
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
After merger, Chance was sentenced to an aggregate term of
seventeen years in prison: four years for the two burglaries in
counts one and two, each subject to a two-year period of parole
disqualification to run consecutive to each other; nine years for
eluding in counts three, four and five, with a four-year period
of parole ineligibility, concurrent to each other and consecutive
to counts one and two, and eighteen months for counts six, seven,
and eleven, aggravated assault of police officers, to run
concurrent to count one.
The judge imposed applicable fines and penalties. Further,
he ordered each defendant to pay significant restitution.
Though it maintains the errors are not fatal, and urges the
sentences be affirmed, the State concedes the trial court failed
to articulate its reasons for imposing consecutive, rather than
concurrent sentences. The State also agrees aggravating factor
two was inapplicable despite the judge's statements.
The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application
26 A-1344-14T2 of the facts to the law was such a clear error of judgement that it shocks the conscience.
[State v. Megargel, 143 N.J. 484, 493 (1996) (citing State v. Roth, 95 N.J. 334, 363-65 (1984)).]
In this matter, the trial court's sentencing findings were
less than thorough. The judge merely recited aggravating and
mitigating factors he applied, and make findings only regarding
aggravating factor two, which the State concedes, and we agree,
does not apply.
First, we reject, as lacking merit, McDuffie's claim the
court impermissibly double-counted his criminal record, when
granting the State's motion for a discretionary extended term, and
again, when imposing aggravating factor six, which considers the
extent and seriousness of a defendant's prior record. "[F]acts
that establish[] elements of a crime for which a defendant is
being sentenced should not be considered as aggravating
circumstances in determining that sentence." State v. Kromphold,
162 N.J. 345, 353 (2000) (citation omitted). McDuffie's criminal
history was not a "fact" that was a necessary element of an offense
for which he was being sentenced. Further, it cannot be disputed
McDuffie had more than the requisite number of offenses to qualify
for an extended term. Indeed, the trial judge was not then
27 A-1344-14T2 required to ignore the extent of his criminal history when
considering applicable aggravating factors.
Second, we do agree with co-defendants' arguments stating the
lack of expressed findings when imposing consecutive rather than
concurrent sentences require the sentences be vacated and the
matter remanded for resentencing. Even though the decision to
impose a consecutive sentence lies within a judge's discretion,
the reasons for doing so cannot be assumed and must be stated.
State v. Miller, 108 N.J. 112, 122 (1987). A remand for
resentencing is required when the court fails to set forth a
separate statement of reasons for imposing consecutive sentences.
See State v. Abdullah, 184 N.J. 497, 514-15 (2005) ("[B]ecause the
trial court did not explain why it imposed consecutive sentences,
we are compelled to remand for the court to place its reasons on
the record.").
Here, rigorous arguments on this aspect of sentencing were
advanced by the State and on behalf of defendants. A remand might
be avoided if the "sentencing transcript makes it possible to
'readily deduce' the judge's reasoning." State v. Miller, 205
N.J. 109, 129-30 (2011) (quoting State v. Bieniek, 200 N.J. 601,
609 (2010)). However, this is not such a record. We cannot glean
from the judge's limited comments what findings he relied upon.
More significantly, the judge summarily stated the "analysis will
28 A-1344-14T2 be the same for both defendants." This "one size fits all
analysis" falls short of the specific findings required when
imposing sentencing.
Finally, the State agrees the judge "improperly imposed
separate [Victims of Crime Compensation Board] fees and [Safe
Neighborhood Service Fund] penalties on the merged convictions."
In summary, we affirm the convictions imposed for each
defendant. However, we are constrained to vacate the sentences
and remand for the court to set forth reasons for the application
of aggravating and mitigating factors, the basis for rejecting
argued mitigating factors, and for the imposition of the
consecutive sentences. The judgment of conviction must also be
corrected as to assessed fines and penalties.
Affirmed in part and reversed and remanded in part for
resentencing.
29 A-1344-14T2