On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-03-656.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and A. A. Rodríguez.
Following a jury trial, defendant Anthony Miller was convicted of first degree robbery, N.J.S.A. 2C:15-1. The judge imposed a ten-year term with a No Early Release Act (NERA)*fn1 parole disqualifier. Unfortunately, we have been provided with an incomplete judgment of conviction. Because page two is missing, we cannot discern what fines and mandatory penalties or fees were also imposed by the judge.
According to the State's proofs, on December 3, 2003 between 8:35 a.m. and 8:45 a.m., defendant entered an International House of Pancakes Restaurant in Neptune Township where he had previously worked as a cook. Defendant saw a waitress, whom he did not know. She had been working for approximately three months at the restaurant. She approached defendant and asked if she could help him. Defendant said he was looking for Sara, another employee. The waitress told defendant that Sara was not working at the time. Defendant asked to borrow a pen. The waitress gave him hers and went over to a table to wait on some customers.
When she returned, defendant handed her a piece of paper. She assumed that it was a note for Sara and put it in her notebook. Defendant said, "No, read the note." The waitress read the note, which stated, "Give me all the money in your register or I'm going to shoot you in the head." The waitress asked defendant if he was serious. Defendant replied, "Yeah, trust me."
Defendant stepped in front of the waitress, put his hand in his pocket and restated, "Yeah, I'm serious. I got a gun." The waitress told defendant that she did not know how to open the register. Defendant said that he used to work there and knew that she was able to open it.
At this point, two customers walked to the front to pay their bill. Defendant became concerned that someone was going to notice the waitress's demeanor. He told the waitress to get someone else to open the register. When she walked away to get Jackie Heron, the manager, defendant left the restaurant.
The waitress told Heron that someone threatened to shoot her in the head if she did not produce the money from the drawer. According to Heron, the waitress was sweating, shaking, and extremely frightened. Heron said, "It's probably somebody just joking with you." The waitress described the man as having a tattoo of a star on his face. Heron knew that defendant, whom she knew by the name of "Sun Figueroa," had a tattoo of a star on his face. Heron decided to call the Neptune Township police and report the incident. By the time Heron made her way to the dining room, the police were running in through the front door. Defendant was already gone.
The restaurant's surveillance video camera tape revealed defendant walking up to the register, receiving a pen from the waitress, writing a note, and handing the note to her. The tape showed defendant and the waitress conversing, and defendant hiding his hand in his left pocket. Heron viewed the surveillance tape and identified the person who had confronted the waitress as defendant.
At approximately 2:15 p.m. that day, defendant turned himself in at the Asbury Park Police Station. According to defendant, after leaving the restaurant, he telephoned his girlfriend, the mother of his children, to tell her about the incident. He expressed his concern that his threat to the waitress might cause her to contact the police. He discussed the situation with his girlfriend and decided to turn himself in to the police. After drinking forty ounces of beer and a small bottle of wine, he went to the Asbury Park Police Station.
Neptune Police Detective Brian Fromhold transported defendant from Asbury Park to Neptune. At Neptune Police Headquarters, defendant was advised of his Miranda*fn2 rights by Fromhold. He waived his rights and gave a formal statement. He confessed to robbing the restaurant earlier that day. Defendant explained that he went to the restaurant to get money to buy heroin. He chose the restaurant because people there knew him. So he thought "they would be easier on [him]." Defendant asked for Sara because he "worked with her before" and "figured she would just turn the money over to [him] without a problem." He did not have a gun. He put his hand in his pocket to make it appear that he had a gun.
At trial, defendant testified. He admitted going into the restaurant, writing a note, and presenting the note to the waitress. However, defendant testified that the waitress owed him $100 for ten bags of heroin he had sold her. He went to the restaurant only to get the money that she owed him, not to commit a robbery. He first demanded the money verbally from the waitress. She said she did not have it. Defendant wrote the note because he "needed her to understand that [he was] serious about the money." He did not want to make a scene in the restaurant. According to defendant, the note read, "I want my money. Give me my money or I'll kill you." Defendant intended that the waitress read the note. He took the note out of her hand and, when she walked to the back of the restaurant, he left.
According to defendant, when he gave his statement to Fromhold, he was tired, hungry and under the influence of drugs and alcohol. He used the details the Neptune police had conveyed to him to admit committing the robbery. He thought he would get in less trouble for that offense than if he admitted to dealing drugs to the waitress and threatening her.
On cross-examination, the Assistant Prosecutor asked defendant:
[Y]ou sat here and you listened to all of the testimony of all of the witnesses that the State presented, correct?
Defendant acknowledged that he had. Then on summation, the Assistant Prosecutor said:
It's convenient for [defendant] to sit here today after he hears all of the witnesses testify and to come up with that story.
On appeal, defendant contends:
HIS CONVICTION MUST BE REVERSED BECAUSE PERVASIVE PROSECUTORIAL MISCONDUCT RENDERED HIS TRIAL FUNDAMENTALLY UNFAIR (Not Raised Below).
The Prosecutor's Repeated And Unfounded Accusations That [Defendant] Tailored His Trial Testimony To Match That Of The Other Trial Witnesses Directly ...