February 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIUS LASSITER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, 03-05-1870-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2006
Before Judges Collester and Sabatino.
Tried to a jury, defendant Julius Lassiter, was found guilty of second-degree robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, i.e., a crowbar or tire iron, contrary to N.J.S.A. 2C:39-5d; third-degree possession of a weapon, to wit, a crowbar or tire iron, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b. On July 30, 2004, Judge Patricia Medina Talbert sentenced defendant to an aggregate term of seven years incarceration with eighty-five percent to be served under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his convictions and sentence.
The incident giving rise to the charges against defendant occurred on Sunday, June 30, 2002, at approximately 6:30 or 6:45 a.m. in the City of Newark. Loretta Banks was walking along South 16th Street to a bus stop when she saw the defendant, whom she knew on sight by the name "Rasul," drive past her. Defendant stopped his car, a white four-door Corolla, and asked Ms. Banks if she wanted a ride. She declined his offer. She testified that defendant had his hair braided to the back of his head, a shaggy beard and a mustache. She saw him get out of his car, approach her, and suddenly he hit her in the head with something sharp, which she believed to be a crowbar. As she fell against his car, defendant hit her again and grabbed her pocketbook. He got back into his car and started to drive away, dragging Ms. Banks because her book bag was caught on defendant's side mirror. When they reached the intersection of South 16th Street and 15th Avenue, the bag strap broke, and Ms. Banks was left lying in the street. She managed to get up, walk back to her house, and then collapsed on her front porch. She was taken by ambulance to St. Michael's Hospital and x-rayed and treated for head injuries, spinal injuries and bruising on her back, arms, legs and face. She remained in the hospital until 10 p.m. that evening. Ms. Banks testified she had limited mobility in her right arm as a result of the attack. She also stated that defendant stole $300 from her.
Detective John LaBella of the Newark Police Department took a statement from Ms. Banks on July 3, 2002. He noticed that Ms. Banks appeared to still be in some pain. She told him that a black pocketbook, about $90 in cash, motor vehicle identification, a pager and cosmetics were taken from her during the incident. After Ms. Banks gave him a description of the assault, Detective LaBella showed her a series of photographs. She was unable to make an identification at that time or when shown other pictures during a subsequent interview on September 24, 2002. However, on March 14, 2003, when Ms. Banks was shopping on Broad Street in Newark, she saw the defendant standing on the street. She walked away immediately and told police officers about defendant and the robbery. Defendant was then arrested.
The defense was alibi. Tanisha Martin testified that on June 30, 2002, she picked up the defendant and Marcus Davis at about 7 a.m. at a music studio in East Orange. She claimed that she remembered the date because the defendant argued with her about her being late. Ms. Martin said her relationship with defendant was like a brother, and he stayed with her when he was in Newark. Marcus Davis then testified that he and the defendant were in a music studio in East Orange making a CD from about midnight Saturday throughout the night and until they were picked up by Ms. Martin at about 7:15 a.m. He said that Ms. Martin dropped him off at his home in East Orange while defendant was still in the car. On cross-examination Davis admitted he had no documentation showing he booked and paid for the use of the studio for the previous night and morning in question. He admitted that he had been convicted of second-degree robbery in 1992, and was sentenced to 364 days in the Essex County Jail.
Defendant testified on his own behalf that he was with Davis all evening on the night before the robbery in the East Orange studio. He said he was working as an engineer and doing digital editing for Davis and explained that they worked all night because the rates for renting the studio were less than during the day. He claimed he did not leave the studio until about 7:15 or 7:30 when he met Ms. Martin who picked him up. He explained that he lived in Fayetteville, North Carolina with his wife but traveled to East Orange on weekends. He denied owning a white Corolla, stating at one time he owned a green Lexus and blue Tahoe Jeep. He adamantly denied committing the crime.
On appeal, defendant makes the following arguments for our consideration:
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO ISSUE A CURATIVE INSTRUCTION AFTER DEFENDANT'S COUNSEL ELICITED INFORMATION FROM PROSECUTION WITNESSES THAT DEFENDANT WAS A MEMBER OF THE BLOODS GANG.
THE TRIAL COURT ABUSED IT DISCRETION IN REFUSING TO ALLOW THE DEFENSE TO PRESENT ADDITIONAL ALIBI EVIDENCE AFTER THE SUMMATIONS, BUT PRIOR TO THE JURY CHARGE.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF THE DEFENDANT'S 21-YEAR-OLD ROBBERY CONVICTION TO IMPEACH HIS CREDIBILITY.
THE TRIAL COURT ABUSED IT[S] DISCRETION BY ALLOWING EVIDENCE OF A DEFENSE WITNESS'S PRIOR ROBBERY CONVICTION TO IMPEACH HIS CREDIBILITY.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Defendant argues that testimony elicited by his attorney from State's witnesses indicating he was a member of the Blood's gang prejudiced his defense.*fn1 Since the issue was not raised at trial, we consider the argument under the plain error standard, requiring us to determine whether the alleged error is clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325 (1971).
The first reference to "the Bloods" came through cross-examination of Detective LaBella on a police report that denied defendant's involvement with any gang.
Q: Now do you recall whether or not Detective Day indicates in that report any information with regard to my client being a member of a gang?
A: Yes, I believe that was the last sentence or two. It said no at the bottom of the continuation, if I recall correctly.
Q: And if you recall, what do you recall about that notation, Detective?
A: I recall it said [he] was an active member of the Bloods gang.
The next time the issue arose was during the defendant's testimony. Although the prosecutor did not allege or imply that defendant was a member of the bloods or any other gang during cross-examination of defendant, the defense attorney returned to that subject on redirect.
Q: Mr. Lassiter, are you a member of the Bloods gang here in Newark?
A: No sir.
Q: Are a member of the Bloods gang anywhere in the United States?
A: No, sir. I'm 40 years old, I don't glorify the streets.
Defendant argues that the questioning by his attorney warranted a sua sponte curative jury instruction by the trial judge. We disagree. The testimony of State witnesses and the defendant was that defendant was not a member of the Bloods or any other gang. The mere mention of a gang name by defense counsel is insufficient to constitute an error clearly capable of proving an unjust result when the matter was not an issue in the case. See State v. Loftin, 287 N.J. Super. 76, 97 (App. Div.), certif. denied, 144 N.J. 175 (1996).
Defendant's next argument centers on a computer receipt of $100 payment to SAIAH's Room Music Group in East Orange, on June 30, 2002. The receipt was presented by defense counsel after summations and moments before the judge was to charge the jury. Defense counsel stated:
I just want to place something on the record. My client Mr. Lassiter apparently has found a receipt that's germane to his case. I just want to place on the record that this is the receipt that was made or received from Marcus Davis from the SAIAH's Room Music Group, 328 Dodd Street, East Orange, New Jersey 07117. Music is simply in the corner. Receipt number 1107, date 6-30-02 and receipt for $100. I explained to Mr. Lassiter I have now closed and we have done summations and we're about to do a jury charge. He explained to me that he called here which I have been made aware [of] by the judge's secretary last night to make me aware of it, and also called my office and I wasn't in my office. I just want to put it on the record, your honor, in the event that I'm going to make sure the State has a copy for its files in the event there's another matter. I wanted to make sure, at least he gets the benefit of knowing I did -- I told him I couldn't open it up again.
Although there was no formal proffer of the receipt made by defense counsel, the trial judge considered the issue of admissibility of the receipt and declined to submit it to the jury.
I'm assuming that [defense counsel] is not addressing the court for the purpose of just informing me without having an application ... if I were take this information to its natural end, it would be to reopen the trial and allow the defendant to present the receipt. The court has taken a moment to review the receipt. I'm not questioning its veracity or truthfulness one way or another, but at this juncture it would not be admissible because I have no one prepared to authenticate it. The receipt itself, signature and the like. Certainly this court is not prepared to delay further. I did hear the testimony from the defendant he's been making efforts presumably for several months, perhaps a few years, to gather this information, and he certainly could have had or subpoenaed the individual who arguably signed the receipt to be here to testify without the receipt. So, at this moment, based on what I see before me it would not be admissible having obviously the individual not available to testify as to authenticity.
A decision to permit reopening of a criminal trial rests in the informed discretion of the trial judge. State v. Gray, 101 N.J. Super. 490 (App. Div.), certif. denied, 52 N.J. 484 (1968); State v. Menke, 25 N.J. 66 (1957). See also State v. Wolf, 44 N.J. 176 (1965) (application made after submission of case to jury). There was no explanation as to the delay in either the discovery or the production of the receipt at the eleventh hour and fifty-ninth minute. Moreover, there was no offer of proof, no proof as to authenticity, and the document on its face indicated only that a recording session took place for some period of time on the date of the robbery and did not indicate defendant was in the studio at the time of the crime. We find no abuse of discretion in denying the submission of the item.
Defendant next alleges that the denial of his in limine motions to exclude evidence of his 1983 conviction for robbery even though the judge "sanitized" it by excluding the nature of the crime, and Marcus Davis' 1992 conviction for robbery, constituted separate instances of abuse of discretion requiring reversal of the conviction. N.J.R.E. 609(1) states that "for the purpose of affecting the credibility of any witness . . . his conviction of any crime may be shown by examination or otherwise . . . ." Therefore the jurors must be told that they cannot consider the conviction as evidence of a defendant's guilt but only to affect his or her credibility. State v. Brunson, 132 N.J. 377 (1993); State v. Sands, 76 N.J. 127 (1978); State v. Wray, 336 N.J. Super. 205, 212 (App. Div.), certif. denied, 168 N.J. 290 (2001). Evidence of prior convictions should ordinarily be admitted absent the exercise of discretion by the trial judge to exclude the evidence based on remoteness or other causes. N.J.R.E. 609; State v. Sands, supra, 76 N.J. at 144.
Defendant argues that his 1993 conviction was remote in time and therefore should have been excluded. However, remoteness is not necessarily determined by the passage of time. Subsequent or intervening offenses may be considered as a basis for admission of an earlier conviction since "contempt for the bounds of behavior placed on all citizens" normally permits introduction of a conviction for a crime committed years earlier. State v. Frost, 242 N.J. Super. 601, 617-18 (App. Div. 1990), certif. denied, 127 N.J. 320 (1992). Judge Talbert properly noted that defendant's robbery conviction in 1983 and sentence in 1984 resulted in his incarceration until his release in 1989, and he was subsequently convicted of four disorderly persons offenses. She found a continuing pattern of criminal behavior sufficient to deny exclusion of the earlier indictable offense on grounds of remoteness with Brunson, supra, 132 N.J. at 377.
The same conclusion holds for admission of Marcus Davis' conviction for second-degree robbery in 1992, which was not sanitized by the judge. The Sands rationale for admission of prior convictions of indictable offenses is equally applicable to other witnesses with prior indictable convictions. State v. Balthrop, 92 N.J. 542, 544-46 (1983); State v. L.J.P., 270 N.J. Super. 429, 433-34 (App. Div. 1994). Nonetheless, the admission of a prior conviction of a witness "pales into insignificance when contrasted with the prejudice to a defendant himself by reason of admission of evidence of his prior criminal conviction." Balthrop, supra, 92 N.J. at 545. We find no abuse of discretion in the denial of defendant's application to exclude the evidence.
Defendant's claim of excessive sentence is without sufficient merit to warrant discussion a written opinion. R. 2:11-3(e)(2).