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State v. Marks

Decided: May 30, 1985.


On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Michels, Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.


[201 NJSuper Page 520] Defendant and his alleged accomplice, Barry Burton, were charged in a multi-count indictment with conspiracy (N.J.S.A. 2C:5-2), armed robbery (N.J.S.A. 2C:15-1), aggravated assault (N.J.S.A. 2C:12-1b(1) and (2)), possession of a handgun (N.J.S.A. 2C:39-5b), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), criminal restraint (N.J.S.A. 2C:13-2a) and attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3). Burton subsequently entered a plea agreement with the State and ultimately testified against defendant. Following a protracted jury trial, defendant was convicted of conspiracy, second degree robbery, aggravated assault, criminal restraint and attempted murder. At sentencing, the trial judge merged the conspiracy count into defendant's robbery conviction and imposed a custodial term of seven years. Additionally, the court directed that defendant serve three years without parole eligibility. Defendant was sentenced to a consecutive term of seven years with respect to the aggravated assault conviction. The court imposed

a minimum term of one year during which defendant was not to be eligible for parole. Defendant was sentenced to a consecutive term of seven years with a three year parole disqualifier with regard to the conviction for attempted murder. On the criminal restraint conviction, the court imposed a concurrent four year sentence. Defendant was assessed a penalty of $500 payable to the Violent Crimes Compensation Board with respect to each conviction. Thus, the court imposed an aggregate term of 21 years imprisonment with a seven year period of parole ineligibility and a penalty totaling $2000.

Defendant advances numerous arguments on appeal. Initially, he contends that the trial judge erroneously refused to exclude his incriminatory statements made at the scene of the crimes and at police headquarters. He also argues that the prosecutor's statements during his summation infringed upon his Fifth Amendment privilege and otherwise exceeded the bounds of fair comment. Defendant claims that the trial judge erred in refusing to permit him to explain his reasons for declining to undergo a polygraph test with respect to a wholly unrelated incident. It is also argued that the court improperly precluded defendant's attorney from commenting upon the State's failure to produce an alleged key witness. Additionally, defendant claims that the trial judge committed reversible error when he failed to instruct the jury that each count of the indictment was to be considered separately and independently. Defendant further contends that the jury's verdict was against the weight of the evidence. Lastly, defendant asserts that the sentences imposed were manifestly excessive and unduly punitive. In essence, he claims that concurrent indeterminate terms should have been imposed.

We have carefully reviewed the record in light of the arguments advanced. We conclude that defendant received a fair trial and was properly convicted. Additionally, we are entirely satisfied that the sentences imposed by the trial judge did not constitute an abuse of discretion and were plainly warranted by virtue of the substantial aggravating factors apparent in the

record. Succinctly stated, we perceive no sound basis to disturb either the jury's verdict or the sentences imposed. We affirm.

At the outset we note that the evidence presented by the State at trial can fairly be characterized as overwhelming. In fact, the record literally reeks of defendant's guilt. The salient facts can be summarized as follows. For approximately a year prior to the crimes charged in the indictment, defendant was employed by George Koch, the owner of the Golden Hedge. The Golden Hedge was a family owned and operated store dealing in the sale and purchase of rare stamps and coins. Defendant was apparently the only non-familial full time employee working at the store. The record discloses that defendant was knowledgeable with respect to the value of rare coins and stamps. Apparently, both he and his father collected these items as a hobby. Defendant had long been a customer of the store prior to his employment.

It is unclear when defendant initially conceived the plan to rob the Golden Hedge. According to his friend and accomplice, Barry Burton, he first broached the subject in a casual manner during a conversation at Kaminski's Ale House, a local restaurant, in February 1983. Defendant advised Burton that there was a substantial quantity of gold and silver at the store and that it would be a relatively simple process to steal it in light of his knowledge of the alarm system and the owner's general habits.

It would appear that Burton was initially somewhat non-committal with respect to the proposed robbery. However, on March 7, 1983, defendant and Burton discussed the matter in some detail. The plan that emerged called for Burton to enlist the assistance of Merrill Giles in the project. Giles "was a power lifter" and was known for his size and strength. According to the plan, Giles was to enter the store and force the owner to open the safe. Burton was known by Koch to be an acquaintance of defendant. Therefore, it was important that he

not be exposed to Koch during the robbery. Rather, his role was to wait behind the store until the gold and silver had been removed from the safe. The stolen articles were then to be placed in Burton's automobile. Defendant was to be responsible for disposing of the coins and other items.

The plan was executed on April 7, 1983. At approximately 8:20 p.m. on that date, defendant and Koch were alone in the store preparing to close for the day. Koch recalled that defendant went to the window and then proceeded to the rear room of the store where he "disappeared." Shortly thereafter, a largely built black male, whom Koch subsequently identified as Giles, entered the store. After some initial inquiries, Giles produced a handgun from his jacket pocket and directed Koch to the safe. At that point, defendant appeared and asked the owner for the key to the front door. With the gun pointed at his back, Koch motioned toward his pocket. Defendant then removed the key, extinguished the lights and locked the front door. According to Koch, it was necessary for defendant to pass the alarm buttons in order to turn off the lights. Nevertheless, it is undisputed that defendant made no attempt to activate the burglar alarm. Approximately 30 seconds after locking the door, defendant returned. Giles then ordered Koch to open the safe and "not to turn around."

After opening the safe, the victim was ordered to walk to the center of the room where he was struck about the head and neck by either Giles, defendant or both. While lying on the floor, Koch was continually beaten. The victim heard defendant direct Giles to "clean out" the safe. Although severly beaten, Koch remained conscious. He was able to hear defendant implore Giles to "put a bullet in his head" and to "make sure" that he was dead. Each time this was said, the victim was struck about the head, neck and shoulders. Koch remained motionless on the floor pretending to be dead. On several occasions, either Giles or defendant "checked" to determine whether the victim was breathing. Koch "held his breath" in fear that they would shoot him were they to learn

that he was alive. During the course of the robbery, defendant ordered that the coins and other items be strewn about the room. Ultimately, Koch's hands were tied tightly behind him and he was dragged into a small lavatory at the rear of the store.

While lying on the bathroom floor, the victim heard the sounds of the safe being emptied. At one point, Koch heard a loud "banging" sound emanating from the back door. He next heard defendant say, "Barry, what took you so long? You're late." The victim was again struck on the back of his head with a blunt instrument. Although bleeding profusely, Koch remained conscious and heard the sound of "scuffling" in the next room. The victim then was able to hear defendant say, "[m]ake it look good. Don't hurt me." Defendant was placed in the bathroom. Koch, feeling progressively weaker and fearing defendant, continued to feign unconsciousness.

Approximately ten minutes later, the police arrived. Upon entering the rear of the store, the officers heard the "sounds of moaning" emanating from the bathroom. Upon opening the bathroom door, they observed the victim lying on the floor, his hands tied and his head "surrounded by a pool of blood." Defendant was found tied up and lying across Koch's ankles. One of the officers untied defendant's "loosely" bound feet.

Defendant left the bathroom and was briefly questioned by several of the police officers. He explained what had occurred and described the perpetrator as a "caucasian male, 30 to 32 years of age, 5'11" in height, wearing blue jeans and a plaid hunting jacket." Approximately five minutes later, when inferentially defendant first realized that Koch was alive and able to communicate, he advised the police that there had been a second suspect whom he described as a "well-dressed black man." When one of the officers arrived to "dust for fingerprints" defendant, without being questioned, volunteered that the perpetrators wore gloves. At one point, he asked a detective who had responded to the scene to inspect the injuries he

had allegedly sustained. The officer testified that he noticed "some redness" but there was no blood. Defendant repeatedly and adamantly refused medical attention.

In the meantime, other officers were administering first aid to the victim. Because the bathroom was so small, the police attempted to remove the door to provide greater access. Koch requested the officer to close the door and then advised him that defendant was involved in the robbery. He also noted that he had overheard defendant refer to one of his accomplices as "Barry." Koch advised the police that he knew "Barry" to be one of defendant's friends. He also alluded to the fact that Burton's father was a highly ranked police officer. At that point, Koch was transported to the hospital where he remained for a period of ten days.

The victim's account of the incident was substantially corroborated by Burton's testimony. He recounted the manner in which the robbery plan was conceived and executed. In that regard, he noted that defendant signaled from the window as the owner was preparing to close the store. After Giles had entered, Burton drove his automobile to the rear alleyway where he parked. Shortly thereafter, he entered the store through the unlocked rear door. As he walked into the room, Burton observed defendant with a handgun. Throughout the robbery, defendant beseeched Giles and Burton to shoot the victim claiming that "it was part of the deal." When the two refused, defendant threatened to kill Koch and ultimately had to be restrained. After the stolen items had been transported to his automobile, Burton departed. He subsequently learned that the police had become aware of his involvement. Pursuant to his father's advice, Burton surrendered with the stolen merchandise. After he was freed on bail, Burton met defendant who asked whether the gold and silver had been hidden.

Defendant elected to testify. He admitted knowing Burton, but denied being acquainted with Giles. Defendant maintained that Burton, while ...

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