STATE OF NEW JERSEY v. ANSUMANA KAIKAI (2011)

Following a domestic dispute, which resulted in the police being called, defendant Ansumana Kaikai was accused of driving away from the scene despite directions from the police to stop, and trying to hit an officer with his car.   He was convicted of third degree eluding, N.J.S.A. 2C:29-2b, but acquitted of aggravated assault.   He appeals from the conviction and from the sentence of five years probation.   We affirm.

I

These are the most pertinent facts.   Defendant Ansumana Kaikai and his wife lived in a large apartment complex.   The wife's friend Suzanne lived in a nearby building in the apartment complex.   On January 29, 2007, the wife and defendant got into an argument about her $1500 cell phone bill.

The next day, January 30, 2007, the wife went to Suzanne's apartment at ten a.m. At approximately 11:30 a.m., the defendant went to Suzanne's apartment.   The couple struggled over the wife's handbag.   Her clothes were torn in the scuffle, and she received a cut on her finger.   However, she broke the defendant's glasses in the altercation.   After the struggle, defendant left the building.

Following his departure, the wife's sister arrived at Suzanne's apartment and insisted on calling the police.   Officer Keith Grausam, responding to a dispatch about a disturbance, was the first to arrive.   He spoke with the wife, who told him about the altercation with defendant, and she indicated that he may have gone to their apartment, describing him as a “thin black male.”   Officer Grausam testified that she also told him that her husband drove a “green Saturn.”   However, in her testimony she denied giving him a description of the vehicle during their first conversation.

Officer David Schmidt arrived as back-up, and the officers walked to defendant's building and knocked on the door for “about a minute.”   Defendant did not answer.   Hearing a car start near the building, Grausam walked toward the sound and saw a “green car” pulling out of the lot.   As the car approached the officers, Grausam walked into the middle of the roadway and “signaled the car to stop, yelled, police, stop, and waved my hands.”   The car did not stop, and Grausam “took a step back out of the way” to avoid being hit by the car.   Grausam testified that the driver, whom he identified in court as defendant, looked at him and smiled as he drove by.   At trial, Officer Schmidt also identified defendant as the driver of the green vehicle.

Grausam ran back to his patrol car and gave dispatch the information about a “green car,” with a license plate that began with the letters UGM. After unsuccessfully attempting to locate the vehicle, the officers returned to speak with the wife.

During Grausam's direct testimony, he identified the defendant's car from a photo, which contained “two green vehicles.”   Grausam and Schmidt indicated, in response to questions from the prosecutor, that the other green vehicle, a Toyota Camry, was not the vehicle that almost ran Grausam over on January 30, 2007.   On cross-examination, Grausam acknowledged that the license plate of the Camry read UGM14F, and that it was registered in New Jersey to a person who lived in the defendant's apartment complex.   On redirect, Grausam stated that he had never seen the Toyota Camry before seeing the photograph.   The prosecutor showed Grausam and Schmidt a photograph of a man and woman, later identified as the owner of the Camry and his wife;  the officers stated that neither of the individuals in the photograph was driving the green car, and that the man in the photo did not resemble defendant.

Upon questioning by the judge, Officer Grausam stated that after initially speaking with the wife, he would have arrested defendant for domestic violence based on the police department's protocol.   The judge also asked for clarification about the timing of the events, and Grausam's procedure for writing his reports.

The wife testified that upon the officers' return to Suzanne's apartment, they asked her what kind of car her husband drove.   She told them that her husband drove a green car, but she did not know the make, model, or license plate number.   They accompanied her to her apartment, where she showed them a picture of defendant.   Grausam and Schmidt testified that from the photo, they concluded that defendant had been the driver of the vehicle.   The officers took the wife to the police station to file a complaint, although she declined medical attention.

A complete description of defendant's vehicle was obtained and given over the police dispatch.   Officer Swieringa spotted defendant's car in the apartment complex later that day, parked in a lot several hundred yards away from the building where defendant lived.   Officer Schmidt returned to the apartment complex to join Swieringa and two other officers.   Swieringa remained near the defendant's vehicle.   Schmidt observed the back of the building while two officers knocked on defendant's front door.

Schmidt saw defendant climb out of a window at the back of the apartment, and chased after him.   Schmidt testified that the defendant collided with a detective and was arrested.   Swieringa transported defendant to the police station.

Defendant testified that he was a graduate student.   He contended that he initially went looking for his wife because he was locked out of their apartment, needed some course materials that were in the apartment, and thought his wife would have the house key.   However, he drove off to his afternoon class immediately after the incident, without returning to the apartment.¹  According to defendant, on the way to school, his car overheated and he had to wait for it to cool down before adding water to the radiator.

His explanation for leaving the car at a distance from his apartment building was as follows.   Defendant testified that since the car was malfunctioning he gave up his plan to drive to class, and instead drove his car back toward his apartment.   However, it overheated again and he pushed it the rest of the way.   He explained that he left the car in a parking lot located far from his apartment because the car was not working.   In support of the defense theory that the police had identified the wrong car and driver, defendant identified a photo of a green Toyota, license plate UGM14F, as having been parked in his apartment complex.   The defense moved the photo of the Toyota into evidence.

Defendant's explanation for climbing out the back window was as follows.   He testified that he heard knocking on his apartment door but was delayed in opening it because he was in the bathroom.   By the time he opened the door, the police officer who had been knocking had walked away and was standing next to a police car, with several other officers.   Defendant claimed that when he opened the apartment door, the officer made a gesture which he construed as meaning that the officer did not intend to come back and enter the apartment.   However, seeing all of the police massed in front of his apartment complex, defendant was afraid to come out.

On looking out his back window, he saw only one police officer standing watch and decided it might be safer to surrender to one officer rather than several of them.   He claimed that he climbed out the back window “in full view” of the police, with his hands up.   Defendant denied running from the police after climbing out the window.

After the defense rested, the State offered the rebuttal testimony of Mr. Jha, the owner of the green Toyota Camry in defendant's apartment complex.   Defendant did not object to Jha being called as a rebuttal witness, but did object to Jha's EZ Pass records and other documentation, arguing that the records had not been provided prior to trial.   The prosecutor explained that Jha gave him the records that same morning.   The judge allowed Jha to testify as to the records, and permitted defendant to cross-examine him about them, but the records were not admitted in evidence.

Jha testified that he owned two Toyota Camry cars:  a green 1996 model, and a 2001 model.   He testified that he left for work at 7:45 a.m. on January 30, 2007, driving the newer Camry.   Jha noted that his EZ Pass records showed him going through a toll on the Garden State Parkway at 7:58 a.m., and coming home at 5:47 p.m. Jha also testified that his time sheet on his employer's website showed him working for eight hours on January 30, 2007.   Additionally, Jha testified that his wife, the only other adult in his household, was nine months pregnant on January 30 and was not driving because of her pregnancy.

On cross-examination, Jha acknowledged that he used his EZ Pass tag in both of his cars in January 2007.   On questioning by the judge, Jha stated that his commute took over an hour each way and that he never came home for lunch.

After the judge charged the jury, they deliberated for a short time before the trial recessed for the day.   The next morning, the judge realized that he had omitted a limiting instruction to the jury about the evidence of domestic violence.   At this point, with defense counsel's agreement, he gave the charge pursuant to N.J.R.E. 404(b).  Although the judge acknowledged that the jury had only been deliberating for a “short period,” he also instructed them to begin their deliberations anew.   The defense did not object to that instruction.

II

On this appeal, defendant raises the following arguments, of which points 2, 3, 5 and 7 are asserted here for the first time:

POINT I:  A NEW TRIAL IS WARRANTED BECAUSE THE STATE COMMITTED A DISCOVERY VIOLATION AND THE TRIAL COURT PERMITTED THE STATE TO OFFER THE TESTIMONY AND EVIDENCE AS IMPROPER REBUTTAL EVIDENCE.

POINT II:  THE SPOUSAL PRIVILEGE WAS VIOLATED BECAUSE THE PROSECUTION FORCED MRS. KAIKAI TO TESTIFY AGAINST HER HUSBAND (PLAIN ERROR).

POINT III:  THE TRIAL JUDGE EXCEEDED PROPER QUESTIONING OF WITNESSES BEFORE THE JURY, CEMENTING THE PROSECUTION'S VERSION OF EVENTS IN THE JURY'S MIND (PLAIN ERROR).

POINT IV:  THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON FLIGHT.

POINT V:  DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS VIOLATED BECAUSE THE TRIAL COURT ORDERED THE JURY TO STOP THEIR DELIBERATIONS AND THEN BEGIN ANEW.

POINT VI:  THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OR A NEW TRIAL ON THE ELUDING CHARGE.

POINT VII:  DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

Having reviewed the record, we conclude that these contentions are all without merit.   Except as addressed here, they do not warrant discussion in a written opinion.   R. 2:11-3(e)(2).

Defendant first contends that the State committed discovery violations by calling Mr. Jha to rebut defendant's contention that the police saw someone else driving a different green car, and by failing to turn over documents belonging to Jha. We disagree.   It is clear from the trial record that both sides knew before the trial that Mr. Jha was the owner of the green car.   In fact, he was on the State's witness list, and defense counsel also indicated that he might call Jha as a witness.   Either side could have interviewed Jha before the trial.

On the day before he was called to testify, Jha gave the prosecutor copies of his EZ pass record and time sheets from his job.   The prosecutor in turn immediately gave copies of those documents to defense counsel.   There is no evidence that the prosecutor intentionally withheld the documents.   See State v. Martini, 160 N.J. 248, 268 (1999), and, contrary to defendant's argument, because these documents were not exculpatory evidence the State did not violate Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L. Ed.2d 215, 218 (1963).   Further, although the documents were used to refresh Jha's recollection as to the exact times when he drove to and from work, and when he left work, they were not introduced in evidence.   We find no abuse of the trial judge's discretion in allowing the State to present this evidence.   See State v. Provoid, 110 N.J.Super. 547, 557 (App.Div.1970);  State v. DeRocco, 53 N.J.Super. 316, 323 (App.Div.1959).

We likewise cannot agree with defendant's contention that the State violated the spousal privilege by requiring his wife to testify against him at the trial.   See N.J.R.E. 501(2).   At the trial, neither the wife nor defendant objected to her testimony on privilege grounds.   Since the issue was not raised at the trial, we will not consider it on appeal, absent plain error.   See State v. Robinson, 200 N.J. 1, 20 (2009);  State v. Bunch, 180 N.J. 534, 541 (2004);  R. 2:10-2.   The wife's testimony provided background information to show why the police were called, and to show that defendant knew why the police would be trying to stop his car.   However, in some respects, her testimony was helpful to defendant.   We find no error, much less plain error, in the State's presentation of her testimony.

We also find no plain error in the judge's having asked questions of some of the witnesses.   Defendant did not object to any of this questioning.   See R. 2:10-2.   While “trial courts should use great restraint in questioning witnesses in order not to influence the jury,” it is not improper “for judges to ask witnesses questions to clarify their testimony.”  State v. Taffaro, 195 N.J. 442, 450-51 (2008);  N.J.R.E. 611(a).   The judge's questions here appeared to be aimed at clarifying details that might have been confusing to the jury, and he gave each side ample opportunity to ask follow-up questions.   He also appropriately instructed the jury that they should not be influenced by the fact that the judge had asked questions of some of the witnesses.

Contrary to defendant's argument, we find no error in the flight charge.   “Flight of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt.   Mere departure, however, does not imply guilt.   Flight requires departure from a crime scene under circumstances that imply consciousness of guilt.”  State v. Long, 119 N.J. 439, 499 (1990) (citations omitted);  State v. Mann, 132 N.J. 410, 418-21 (1993).   Reasonable jurors could conclude that defendant climbed out the window to avoid arrest and that this showed consciousness of guilt.

Defendant's remaining objections to his conviction are equally without merit.   The trial judge properly directed the jury to begin deliberating anew after giving the jury an omitted charge concerning other crimes evidence.   Defendant's motions for acquittal or for a new trial were correctly denied.   The jury could have concluded that, even if defendant did not attempt to run down Officer Grausam, defendant was the driver of the green car and he intentionally failed to stop the car in response to the officers' directions.   See State v. Reyes, 50 N.J. 454, 459-64 (1967).

Finally, after finding that the mitigating factors outweighed the aggravating factors, the judge sentenced defendant to probation instead of to a jail term.   At the sentencing, defendant not only made no objection to the sentence, but profusely thanked the judge for sparing him from a jail term.   On this record, we find no abuse of discretion or other error in the sentence.   See State v. Roth, 95 N.J. 334, 363-64 (1984);  N.J.S.A. 2C:44-1a.

Affirmed.

FOOTNOTES

FN1. Defendant claimed that he did not see any police immediately after the incident.   Therefore his testimony did not otherwise explain or address the police testimony that he drove away in violation of their direction to stop or that he tried to run over Officer Grausam..  FN1. Defendant claimed that he did not see any police immediately after the incident.   Therefore his testimony did not otherwise explain or address the police testimony that he drove away in violation of their direction to stop or that he tried to run over Officer Grausam.

PER CURIAM