STATE OF NEW JERSEY VS. TAHIR T. SUTTONÂ STATE OF NEW JERSEY VS. DIONTE POWELLÂ (13-09-0422, WARREN COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5597-14T1
A-0414-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAHIR T. SUTTON, a/k/a
TAHIR TIQUAN SUTTON,
Defendant-Appellant.
_________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DIONTE POWELL, a/k/a
DIONTE MONTEL POWELL,
DIANTE S POWELL, HOTTIE,
Defendant-Appellant.
__________________________________
Submitted September 14, 2017 – Decided September 22, 2017
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Indictment No.
13-09-0422.
Joseph E. Krakora, Public Defender, attorney
for appellant in A-5597-14 (Frank M. Gennaro,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant in A-0414-15 (Tamar Y. Lerer,
Assistant Deputy Public Defender, of counsel
and on the briefs).
Richard T. Burke, Warren County Prosecutor,
attorney for respondent in A-5597-14 and A-
0414-15 (Kelly Anne Shelton, of counsel and
on the briefs).
PER CURIAM
In these back-to-back appeals, which we now consolidate for
purposes of this opinion, defendants Tahir Sutton and Dionte Powell
challenge their convictions and sentences following a joint jury
trial involving robbery, burglary, and other charges. We affirm
in part, reverse in part, and remand for further proceedings.
I.
In the early morning hours of March 15, 2013, two men wearing
dark clothing, hoodies, masks, and gloves entered the employee
breakroom of a convenience store gas station. Both were carrying
handguns and one held a backpack. Once inside, the men encountered
two employees and demanded money. The two men took approximately
$1000 from the employees and some cigarettes and cigar packages
from the store shelves. As the men ran from the store, one of
them dropped his gun and a piece of it broke off when it hit the
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floor. The man retrieved the gun, but left the broken piece
behind.
Approximately forty minutes later, a patrol officer using a
radar device observed a car traveling over the speed limit. The
officer activated his overhead lights and siren, but the driver
of the car refused to stop. The officer pursued the vehicle until
it crashed into a telephone pole. Four occupants got out of the
car and all but one ran away. The officer was able to detain a
female passenger. The officer saw that the rear window of the car
was broken, there was a small sledgehammer on the backseat, and
the ignition had been broken with a screwdriver. The officer also
observed a backpack on the rear floor of the car.
At the police station, the female passenger identified Powell
as the driver of the car and Sutton as one of the passengers. She
told the police that she called Powell to ask for a ride to her
mother's house. Shortly after she got into the car, the police
chase began.
The police located the registered owner of the car, who gave
his written consent to a police search of the vehicle and all of
its contents, including "[a]ny and all containers found therein."
Inside the backpack, the police found two handguns, packages of
cigars and cigarettes, two ski masks, and other clothing. One of
the guns was broken and the piece found at the store fit the
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missing part of the gun. Sutton's thumb print was found on the
exterior of the car. DNA found on one of the ski masks matched
Sutton, and DNA on the other mask matched Powell. DNA on cigarette
butts found in the car also matched Sutton.
The police set up a surveillance outside the female
passenger's home. At approximately 6:00 a.m., the police saw
Powell and Sutton walking down the street. Their physical
characteristics and clothing matched the robbery suspects. The
police arrested defendants. A search incident to that arrest
disclosed that each defendant was carrying approximately $500.
II.
A Warren County grand jury subsequently returned a nine-count
indictment charging Sutton and Powell with second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A.
2C:15-1(a)(1) (count one); second-degree burglary, N.J.S.A. 2C:18-
2(b) (count two); first-degree robbery, N.J.S.A. 2C:15-1(a)(1)
(count three); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a)(1) (count four); third-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count
five); third-degree theft of an automobile, N.J.S.A. 2C:20-3
(count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)
(count eight); and fourth-degree obstructing administration of law
or other governmental function, N.J.S.A. 2C:29-1 (count nine).
4 A-5597-14T1
The indictment also separately charged Powell with second-degree
eluding, N.J.S.A. 2C:29-2(b) (count seven).
Prior to trial, the judge denied defendants' motion to
suppress the items the police seized from the backpack they
abandoned in the stolen car when they ran from the scene of the
accident. Following a multi-day trial, the jury convicted
defendants of all of the charges contained in the indictment.
At Powell's sentencing, the judge merged count one into count
three, and count nine into count eight. The judge sentenced Powell
to twelve years in prison on count three, subject to the 85% parole
ineligibility provisions of the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2; concurrent ten-year terms on counts two and
four; a concurrent five-year term with a three-year period of
parole ineligibility on count five; a concurrent three-year term
on count six; a consecutive six-year term on count seven; and a
concurrent eighteen-month term on count eight. Thus, Powell's
aggregate sentence was eighteen years.
At Sutton's sentencing, the judge also merged count one into
count three, and count nine into count eight. The judge sentenced
Sutton to twelve years in prison subject to NERA on count three;
concurrent ten-year terms on counts two and four; a concurrent
five-year term with a three-year period of parole ineligibility
on count five; a consecutive three-year term on count six; and a
5 A-5597-14T1
concurrent eighteen-month term on count eight. Accordingly,
Sutton's aggregate sentence was fifteen years. These appeals
followed.
On appeal, Sutton raises the following contentions:
POINT I
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE.
A. Standing.
B. Automobile Exception.
C. The Consent Search.
D. Reliance On Facts Not Known Before The
Search.
POINT II
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S
MOTION FOR JUDGMENT OF ACQUITTAL.
POINT III
THE TRIAL COURT'S JURY INSTRUCTION ON THE
CRIME OF BURGLARY CONSTITUTED PLAIN ERROR.
(Not Raised Below).
POINT IV
THE TRIAL COURT'S JURY INSTRUCTION ON THE
DOCTRINE OF FLIGHT WAS PLAIN ERROR. (Not
Raised Below).
POINT V
THE IMPOSITION OF CONSECUTIVE SENTENCES WAS
INAPPROPRIATE, AND THE IMPOSITION OF A
SENTENCE FOR SECOND[-]DEGREE BURGLARY WAS
IMPROPER.
6 A-5597-14T1
Powell presents the following arguments:
POINT I
THE TRIAL COURT DENIED DEFENDANT HIS RIGHT TO
AN IMPARTIAL AND COMPETENT JURY WHEN IT FAILED
TO CONDUCT ANY INQUIRY INTO TWO JURY
IRREGULARITIES THAT AROSE DURING TRIAL.
A. Introduction
B. These Incidents Triggered The Trial
Court's Independent Obligation To Ensure
That The Jury Panel Was Impartial And
Competent. Its Failure To Do So
Necessitates Reversal Of Defendant's
Convictions.
C. Conclusion.
POINT II
OFFICERS' TESTIMONY THAT DEFENDANTS "MATCHED"
THE VIDEO OF THE ROBBERS AND THAT ITEMS FOUND
AT THE SCENE OF THE ELUDING "MATCHED" ITEMS
TAKEN BY THE ROBBERS WAS INAPPROPRIATE
ULTIMATE-ISSUE TESTIMONY, UNHELPFUL TO THE
JURY, AND HIGHLY PREJUDICIAL. ITS ADMISSION
NECESSITATES REVERSAL OF DEFENDANT'S
CONVICTIONS RELATED TO THE ROBBERY. (Not
Raised Below).
POINT III
THE TRIAL COURT COMMITTED NUMEROUS ERRORS AT
SENTENCING, RENDERING THE SENTENCE EXCESSIVE
AND REQUIRING A REMAND FOR RESENTENCING.
A. The Trial Court Improperly Rejected The
Applicability Of Mitigating Factor 11.
B. The Trial Court Improperly Imposed
Consecutive Sentences.
7 A-5597-14T1
C. The Conviction For Possession Of A Weapon
For An Unlawful Purpose Must Merge Into The
Robbery Or Burglary Conviction.
D. The Judgment Of Conviction Must Be
Amended To Accurately Reflect Defendant's
Sentence.
POINT IV
DEFENDANT JOINS POINTS ONE THROUGH FIVE OF CO-
DEFENDANT'S BRIEF.
III.
We find insufficient merit in Sutton's Points I, II, and III,
and in Powell's Points I and II to warrant discussion in a written
opinion. R. 2:11-3(e)(2). Therefore, we proceed to discuss the
arguments raised by Sutton in Point IV of his brief concerning his
convictions for resisting arrest and obstruction, and Powell's
arguments in Point IV of his brief, incorporating Sutton's
positions concerning his own convictions for eluding, resisting
arrest, and obstruction.
Defendants assert that the general flight charge given to the
jury by the trial judge, while conforming to the model jury charge
on flight, constituted plain error because it failed to distinguish
among the charges listed in the indictment and did not instruct
the jury that the inference of consciousness of guilt did not
apply to the eluding, resisting arrest, and obstruction charges.
We agree.
8 A-5597-14T1
It is well settled that "[a]ppropriate and proper charges are
essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59
(2016) (alteration in original) (quoting State v. Reddish, 181
N.J. 553, 613 (2004)). Jury instructions must give a
"comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find." Id. at 159 (quoting State v. Green, 86
N.J. 281, 287-88 (1981)). "[I]n reviewing any claim of error
relating to a jury charge, the 'charge must be read as a whole in
determining whether there was any error[.]'" State v. Gonzalez,
444 N.J. Super. 62, 70-71 (App. Div.) (quoting State v. Torres,
183 N.J. 554, 564 (2005)), certif. denied, 226 N.J. 209 (2016).
If, like here, defense counsel did not object to the jury charge
at trial, the plain error standard applies. State v. Singleton,
211 N.J. 157, 182-83 (2012).
Under that standard, we reverse only if the error was "clearly
capable of producing an unjust result," id. at 182 (quoting R.
2:10-2), and consider the totality of the circumstances when making
this determination. State v. Marshall, 123 N.J. 1, 145 (1991),
cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694(1993). However, the Supreme Court has repeatedly cautioned that
in a criminal trial, "erroneous jury charges presumptively
constitute reversible error . . . and are poor candidates for
9 A-5597-14T1
rehabilitation under the harmless error philosophy." Singleton,
supra, 211 N.J. at 196 (citations omitted).
Applying these standards, we are satisfied that the trial
judge's general instruction on flight clearly had the capacity to
confuse the jury in its consideration of the specific eluding
offense in count seven, resisting arrest by flight offense in
count eight, and the obstruction offense in count nine. Flight
from custody or the scene of a crime, if carried out with the
purpose of avoiding apprehension, prosecution, or arrest, is
generally admissible to draw an inference of guilt. State v.
Mann, 132 N.J. 410, 418-19 (1993). However, although evidence of
flight may be admissible, "[t]he potential for prejudice to the
defendant and the marginal probative value of evidence of flight"
requires the court to carefully consider the manner in which such
evidence is presented to a jury. Id. at 420.
Here, the trial judge instructed the jury as follows on the
evidentiary value of a defendant's flight after the commission of
an offense:
Now, there's also been testimony in this
case from which you may infer that one or both
of the defendants fled shortly after the
alleged commission of the crime. Both
defendants deny any flight and deny any
actions they took constituting flight. The
question you must decide is whether either or
both defendants fled after the commission of
10 A-5597-14T1
the crime. That's another question of fact
for you to determine.
Mere departure from a place where a crime
has been committed does not constitute flight.
If you find that a defendant, fearing an
arrest or accusation would be made against him
on the charges involved in this case, that he,
therefore, took refuge in flight for the
purpose of evading arrest or accusation, then
you may consider such flight in connection
with all the other evidence as an indication
of proof of consciousness of guilt.
Flight may only be considered as evidence
of consciousness of guilt if you determine
that a defendant's purpose was to evade
accusation or arrest for the offense or
offenses charged in the indictment. It is for
you, as the judges of the facts, to decide
whether or not the evidence of flight shows a
consciousness of guilt, and decide the weight
to be given such evidence in light of all of
the other evidence in the case.
Although this instruction followed the relevant model charge
on flight,1 the trial judge failed to specify the offenses to which
the jury could apply it. This omission was an error, which was
clearly capable of producing an unjust result. See R. 2:10-2.
This is so because the flight charge is only applicable to a
flight from the scene, which occurs after the commission of an
offense for which the defendant is charged. In this case, the
offenses submitted to the jury for disposition included burglary,
robbery, gun possession, and theft in counts one through six,
1
Model Jury Charges (Criminal), "Flight" (2010).
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together with eluding, resisting arrest, and obstruction in counts
seven through nine. The judge properly presented the jury with
the flight charge concerning counts one through six, which were
the only offenses that allegedly occurred before defendant's
flight from the scene of their commission.
However, the flight charge was clearly not applicable to the
separate and distinct charges of eluding (count seven)2, resisting
arrest (count eight)3, and obstruction (count nine)4, each of which
requires the State to prove flight as an essential element of the
offense. Because the judge did not instruct the jury that the
flight instruction only applied to counts one through six, the
jury could have inappropriately considered evidence of flight as
tending to prove that defendants acted knowingly in their alleged
attempt to elude the police, resist arrest by flight, or obstruct
justice.
In view of this plain error in presenting the question of
flight to the jury, we are constrained to reverse Sutton's
convictions under counts eight and nine for resisting arrest and
2
Model Jury Charges (Criminal), "Eluding An Officer" (2004).
3
Model Jury Charges (Criminal), "Resisting Arrest-Flight Alleged"
(2007).
4
Model Jury Charges (Criminal), "Obstructing Administration of
Law or Other Governmental Function" (2000).
12 A-5597-14T1
obstruction. See Mann, supra, 132 N.J. at 420. We also reverse
Powell's convictions under counts seven, eight, and nine for
eluding, resisting arrest, and obstruction. Ibid. Therefore, we
also vacate each defendant's sentences for these offenses, and
remand for further proceedings.
IV.
Moving on to the excessive sentence arguments raised by Sutton
and Powell in Points V and III of their respective briefs, we note
at the outset that this matter must be remanded to the trial court
to correct three mistakes made at the time of sentencing.
First, the parties agree, and we concur, that defendants'
convictions under count four for unlawful possession of a weapon
for an unlawful purpose should have been merged into their
convictions for armed robbery under count three. See State v.
Diaz, 144 N.J. 628, 636 (1995) (holding that "[w]hen the only
unlawful purpose in possessing the gun is to use it to commit the
substantive offense, merger is required"). Second, each
defendant's judgment of conviction fails to state that the
sentences the judge imposed for second-degree burglary under count
two are subject to NERA. See N.J.S.A. 2C:43-7.2(a) and N.J.S.A.
2C:43-7.2(d)(12).
Third, when the trial judge sentenced Powell to a three-year
term on count six, he specifically stated that this was a
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concurrent, rather than a consecutive, sentence. However,
Powell's judgment of conviction mistakenly states that this
sentence should run consecutively. When a trial judge's oral
opinion reflects a proper sentence, it controls over the judgment
of conviction. State v. Warmbrun, 277 N.J. Super. 51, 58 n.2
(App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Therefore,
Powell's judgment of conviction is incorrect.
Therefore, we remand these matters for the entry of amended
judgments of conviction correcting these three mistakes.
In all other respects, we discern no basis for disturbing the
sentences imposed by the trial judge upon each defendant. Trial
judges have broad sentencing discretion as long as the sentence
is based on competent credible evidence and fits within the
statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005).
Judges must identify and consider "any relevant aggravating and
mitigating factors" that "are called to the court's attention[,]"
and "explain how they arrived at a particular sentence." State
v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202
N.J. 283, 297 (2010)). "Appellate review of sentencing is
deferential," and we therefore avoid substituting our judgment for
the judgment of the trial court. Id. at 65; State v. O'Donnell,
117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
14 A-5597-14T1
We are satisfied the judge made findings of fact concerning
aggravating and mitigating factors that were based on competent
and reasonably credible evidence in the record, and applied the
correct sentencing guidelines enunciated in the Code.
Accordingly, there is no basis to second-guess the sentences.
In sum, we affirm defendants' convictions under counts one
through six. We reverse Sutton's convictions for counts eight and
nine, and Powell's convictions for counts seven, eight, and nine,
vacate their sentences on these charges, and remand for further
proceedings. Finally, we also remand for correction of defendants'
judgments of conviction as determined above. The sentences imposed
by the trial judge are otherwise affirmed.
Affirmed in part; reversed in part; and remanded. We do not
retain jurisdiction.
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