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State v. Brown

November 10, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
V.
JOE BROWN, DEFENDANT-APPELLANT.



Before Judges Petrella, Conley and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 1999 - Decided November 10, 1999

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

The opinion of the court was delivered by

A Mercer County Grand Jury returned an indictment charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree possession of a weapon, a knife, under inappropriate circumstances, N.J.S.A. 2C:39-5d (count three); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count four). A trial jury found defendant not guilty of count one, guilty of counts two and three, and guilty under count four of the lesser included offense of simple assault, N.J.S.A. 2C:12-1a. The Judge merged count four into count two and imposed an extended term on count two of twenty years imprisonment, ten years to be served without parole. The Judge imposed a consecutive term on count three of eighteen months imprisonment, nine months to be served without parole. We affirm the judgment. *fn1

The crimes occurred on the evening of July 24, 1996. The victim was an elderly woman. Shortly before 9:00 p.m., she left her Hamilton Township home and walked to a nearby Burger King restaurant where she ate and received a receipt marked 9:07 p.m. She crossed the street and entered a Pathmark supermarket where she purchased various items, including a Tastykake Chocolate Junior Yellow Layer Cake and a can of Folger's coffee. She placed those items in her pocketbook and the remaining items in a shopping bag. She received a receipt marked 9:55 p.m., left the store, and started walking home.

When she got to Churchill Avenue, she was hit in the back by an assailant. The blow forced her to fall forward, injuring her elbows and knees, and seriously damaging some of her teeth, which, as a result, had to be replaced with dentures. The assailant grabbed her shopping bag and pocketbook and ran. She looked up and noticed that her attacker, who was running away, was a black male. Her screams of distress brought neighbors to the scene. Someone called for the police, who arrived within minutes.

Four juveniles in the area of Churchill Avenue and South Clinton Street provided the police with a physical description of a man they had recently observed running: "a black male, approximately five seven, medium build, short, cropped hair, white tee-shirt, blue shiny warm-up pants and dark shoes."

Within minutes, a police officer saw a man, the defendant, fitting the description and running away from the direction of the crime. The officer stopped him. He was "breathing very heavily, and he was soaked in perspiration . . . ." The officer noticed a "silvery pointy object protruding from the right front of [defendant's] sweat pants . . . ." More specifically, the officer said that the object, apparently an ordinary kitchen knife with a five-inch long blade, was in defendant's "right front pocket of his running pants, the blade facing up out of the pants towards his face." The officer took the knife. A search of the defendant's left front pocket resulted in the discovery of a Tastykake Chocolate Junior Yellow Layer Cake. Later investigation showed that the cake had the same expiration date, bar code, and serial number as other cakes in the Pathmark where the victim had just shopped.

A search of the area between the crime and arrest scenes resulted in the discovery of the victim's purse. Among other things, it contained her checkbook, the receipts from the two stores, and, most importantly, the Folger's coffee can. Subsequently, defendant's right thumbprint was found to be on the coffee can.

The four juveniles were transported to the arrest scene. An officer testified that two of them identified defendant as the person they had seen running and two indicated that he looked like the person but they were not sure. One of the latter two juveniles testified.

I.

Defendant contends that the admission of the hearsay evidence of the identifications made by the three non-testifying juveniles prejudiced his right to a fair trial. This testimony was volunteered by the police officer in an unresponsive answer to a question from the prosecutor. Although defendant did not object when the evidence was received, he later moved for a mistrial on the ground that the evidence was impermissible hearsay. The Judge denied the motion and instructed the jury to consider the testimony only for the limited purpose of explaining the conduct of the police in stopping the defendant. The Judge twice instructed the jury that it could not consider the identifications as substantive evidence.

The hearsay evidence of the identifications by the non-testifying juveniles was clearly inadmissible. State v. Bankston, 63 N.J. 263, 268-69 (1973). But "it is axiomatic that '[n]ot every admission of inadmissible hearsay . . . can be considered to be reversible error . . .; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.'" State v. Winter, 96 N.J. 640, 646 ...


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