June 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASSAN STEVENSON, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SLICK THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 03-04-0563, 03-04-0574 and 03-04-0577.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 24, 2006
Before Judges Kestin and Payne.
Defendants, Hassan Stevenson and Slick Thomas, were jointly charged in indictment no. 03-04-563 with armed robbery, a crime of the first degree, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); and second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (count three). Additionally, each was charged separately in a single count with violating N.J.S.A. 2C:39-7b, certain persons not to have weapons, a crime of the second degree, Stevenson in indictment no. 03-04-577, and Thomas in indictment no. 03-04-574.
Following a joint trial, each defendant was found guilty of first-degree robbery, second-degree possession of a weapon for unlawful purpose, and lesser included fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3). Each was also found guilty of the second-degree weapon possession crimes charged in the separate indictments.
In respect of each defendant, the trial court merged the weapon and aggravated assault convictions arising from the jointly charged crimes with the armed robbery conviction, and sentenced each defendant to a seventeen-year term of imprisonment subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, i.e., eighty-five percent of the term with parole ineligibility and a five-year term of parole supervision upon release; ordering, as well, the monetary penalties, assessments, fees and fines established by statute along with forfeiture of all monies and property seized from defendants. On the separate, individually charged second-degree weapon possession conviction, each defendant was sentenced to a concurrent prison term of five years, with similar terms regarding monetary responsibilities and property forfeiture. Thomas's judgment of conviction specified that his five-year sentence on the latter conviction was to be "with 5 years parole ineligibility[.]" No such provision appears in defendant Stevenson's judgment of conviction.
Both defendants have appealed from the convictions and the sentences. We consolidate the appeals for the purposes of this opinion.
Counsel on defendant Stevenson's behalf raises the following arguments on appeal:
THE TRIAL COURT ERRED IN FINDING THAT THE IDENTIFICATION PROCEDURE USED WAS NOT SO IMPERMISSIBLY SUGGESTIVE AS TO REQUIRE EXCLUSION OF THE RESULTING OUT-OF-COURT IDENTIFICATIONS AT TRIAL.
THE ADMISSION, ON TWO OCCASIONS, OF HIGHLY PREJUDICIAL TESTIMONY THAT INDICATED THE DEFENDANT HAD A RECORD OF PRIOR CRIMINAL ACTIVITY, AND THE FAILURE TO GIVE ADEQUATE CURATIVE INSTRUCTION, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S.CONST. AMENDS, V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10).
THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
DEFENDANT'S SENTENCE OF FIVE YEARS ON COUNT FIVE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.
Stevenson, in a pro se supplemental brief, also argues:
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE SET ASIDE AND A JUDGMENT OF ACQUITTAL ENTERED ON ALL COUNTS.
Counsel for defendant Thomas raises the following arguments on appeal:
DEFENSE COUNSEL'S EFFORT TO PORTRAY THE DEFENDANT AS A DRUG DEALER IN ORDER TO SECURE A NOT GUILTY VERDICT ON THE CHARGE OF ARMED ROBBERY ON COUNT ONE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT IT COULD REJECT THE STIPULATION THAT THE DEFENDANT ENTERED INTO (NOT RAISED BELOW). POINT III IMPOSITION OF THE SEVENTEEN (17) YEAR BASE CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY v. WASHINGTON AND STATE v. NATALE.
(A) IMPOSITION OF A BASE SENTENCE IN EXCESS OF THE THEN EXISTING PRESUMPTIVE SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
(B) IMPOSITION OF A SENTENCE IN EXCESS OF THEN EXISTING PRESUMPTIVE SENTENCE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY [v.] WASHINGTON AND STATE v. NATALE.
Given the limited scope of the issues both defendants raise addressed to their convictions, we need not recount the background facts in detail; we relate, primarily, the procedural facts required to evaluate the issues before us.
Defendant Stevenson's first argument challenges the trial court's ruling following a Wade*fn1 hearing to deny a motion to suppress an identification based upon a photo array. A detective, another police officer, and a witness to the alleged crimes testified at the Wade hearing.
During the police investigation of a reported armed robbery and shooting in Perth Amboy on September 3, 2002, the detective, shortly after the event, spoke to a person who had witnessed the incident. According to the detective, the eyewitness stated that she was able to identify both of the two men involved. She named Thomas as one of the perpetrators and said that the other was "A guy named Hassan from Camden who," as the detective recounted, "she had met . . . either a few days or a week before that night."
The detective prepared a photo array consisting of five "mug shots," one of which depicted defendant Stevenson. He testified that he had searched his department's computer records for a person named Hassan from Camden. Once that search produced Stevenson's name, the detective located a photograph on file and then selected photos of others in the files who presented a similar appearance. The following day, September 4, 2002, some eight hours after the initial conversation between the police and the eyewitness, another police officer, in the detective's presence, presented all of the photos, one-by-one, to the eyewitness, with, according to the police witnesses, the names and other identifying information concealed. From this array, the witness identified Stevenson as one of the perpetrators of the robbery and shooting.
In the Wade hearing, the eyewitness testified regarding her observations at the time of the incident; her impressions of the event and the persons involved, including her opportunity to observe Stevenson's participation; the nature and extent of her familiarity with those involved, including Stevenson; and the procedures used during the presentation of the photo array, as well as her impressions of the photographs generally.
Judge Pullen found no suggestibility or violation of pertinent guidelines in the procedures used, and she concluded that the resulting identification was reliable, ruling that the jury could be informed of the eyewitness's out-of-court identification. See State v. Madison, 109 N.J. 223 (1988). Accordingly, when the witness testified before the jury, she recounted her out-of-court identification as well as details bearing upon the events at issue. She also stated that she had known Stevenson since their childhood together and thereafter until "about three or four years" before the events at issue.
As to the identification issue, based upon our analysis of the record in the light of the arguments advanced by the parties and prevailing legal standards, we discern no error in Judge Pullen's ruling, which was based on sufficient credible evidence in the record, see State v. Watson, 261 N.J. Super. 169, 176 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993), and, therefore, no prejudice to defendant from the admission of the eyewitness's identification testimony.
During her testimony, the eyewitness referred to the photographs as depicting "different people who may have been in trouble at one time. If they were not they wouldn't have photo." [sic] Stevenson's counsel moved immediately for a mistrial. The motion was denied, and the court gave the jury a full and ample curative instruction.
Later that day, when the detective testified before the jury, in describing the details of his investigation, he stated that, at one point, the police went to a particular address in their search for the weapon involved, referring to that location as "the address [Stevenson] was released to previously." This, too, elicited a motion for a mistrial on the basis that the statement was the second instance in which "it came out that [Stevenson's] got a prior record. In denying the motion, Judge Pullen stated that the testimony "can be easily interpreted that once [Stevenson] was arrested . . . at some point in time he was released." She referred to the curative instruction she had given earlier and denied the motion.
We reject defendant Stevenson's argument that these instances and the trial court's disposition of them, together, deprived defendant of a fair trial. The jury was emphatically informed of the limitations on its consideration of such testimony when the court disposed of the motion for a mistrial occasioned by the eyewitness's statement. Judge Pullen restated that limiting instruction in her general charge to the jury with specific reference to that witness's statement. We presume the jury followed the instructions it was given. See, e.g., State v. Powell, 294 N.J. Super. 557, 566 (App. Div. 1996). The omission of the same limited instruction when the detective mentioned defendant's previous release could not, by itself, have led the jury to a result it might not otherwise have reached especially given the ambiguous nature of the reference. We are in substantial agreement with the reasons Judge Pullen gave for denying the latter motion for a mistrial.
Finally, with respect to the issues raised by defendant Stevenson, we discern no merit in the argument that the verdict was against the weight of the evidence. R. 2:11-3(e)(2). There was ample basis in the evidence to support the guilty verdict.
Defendant Thomas's first argument addressed to the convictions focuses on the conduct of his trial attorney and the quality of counsel's representation in characterizing the events at hand in a light that was designed to result in an acquittal of the first-degree robbery charge. In his opening statement to the jury, trial counsel depicted the situation as "no attempt at a robbery really, what there was [sic] an interaction on the streets of Perth Amboy between people who most probably were out there all selling drugs. . . . [that] result[ed] in [the victim] getting shot." And then, in his closing argument, counsel portrayed defendant Thomas as a drug dealer in a continuing effort to forestall conviction of the primary crime charged. Counsel said, among other references to drug trafficking:
So what is the reason that Slick Thomas is unhappy Sommer Williams is sitting in that vicinity? The only reason could be the territoriality involved in the drug trade. Slick Thomas is out there doing things he shouldn't be doing such as selling drugs and that's ["] . . . his turf["] and he sees somebody else who he thinks is a rival he might approach and say what are you doing here? You're not supposed to be here. That's the only way that this context makes any sense . . . . So there's a pretty strong suggestion that probably the subtext in this interaction between these people involved something having to do with drugs.
. . . . And so the translation, the subtext, these people are selling drugs and the interaction between them has to do with the drug trade.
Defendant Thomas now argues that the decision to present him as a drug trafficker constituted inadequate representation under the standards of Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984), and State v. Fritz, 105 N.J. 42, 60-61 (1987).
We cannot conclude from the record before us whether or not the "high-risk strategy" of proffering defendant's guilt of uncharged, less serious crimes as a tactic for persuading the jury that defendant was innocent of the more serious crimes charged constituted ineffective assistance of counsel. See, e.g., State v. Castagna, 187 N.J. 293, 316 (2006). If, for example, defendant, himself, acceded to this strategy, the statements themselves would not be "prima facie evidence of ineffective assistance of counsel." Ibid. Accordingly, because of the need to develop further facts than appear on the record before us, we conclude that defendant Thomas is relegated to his rights on a petition for post-conviction relief under Rule 3:22. See State v. Preciose, 129 N.J. 451, 460 (1992).
We also discern no plain error in the trial court's omission to instruct the jury, specifically, that it could reject a stipulation defendant Thomas and the State had entered into that the injuries the victim received were "serious bodily injury pursuant to law." In his brief on appeal, defendant concedes that the reason for the stipulation was "an effort to limit the prejudicial impact on the jury of having [the State's medical expert] render an opinion concerning the severity of [the victim's] injuries[.]" The trial court advised the jury of the stipulation, and defendant requested no further instruction. We cannot conclude that, in the light of the trial court's wholly proper, repeated instructions to the jury regarding the State's burden of proof, the particular omission this defendant stresses, if error at all, was one that would have changed the result. See State v. Macon, 57 N.J. 325, 333-41 (1971).
Although insisting that the sentences in the matter were proper, the State concedes that the matters must be remanded for resentencing under the requirements of State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). Accordingly, we remand for reconsideration of the sentences. We do not retain jurisdiction.
The conviction of each defendant is affirmed. Both matters are remanded for resentencing.