June 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAMON W. SORENSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-02-0362.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges R. B. Coleman and Gilroy.
Following a remand, defendant Damon Sorenson was retried before a jury that found him guilty of first degree robbery, N.J.S.A. 2C:15-1 (count one), and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). As a result of an earlier trial conducted in October 2002, a jury had found defendant not guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), charged in count two of the original Indictment No. 02-02-1362. On his appeal from the judgment entered after the first trial, we agreed with defendant that he was entitled to a new trial on counts one and three because the jury might have been unfairly led to believe that defendant had an obligation to produce witnesses to corroborate his claim that he did not resort to force to resist apprehension for shoplifting -- which would elevate the charge to a first degree offense -- but rather that a security guard had attacked and assaulted him. Following the retrial of counts one and three, conducted on December 14, 15, 21, 22 and 23, 2004, the jury again found defendant guilty on both counts. Defendant appeals the judgment of conviction entered in furtherance of the jury verdict.
At sentencing on February 10, 2005, the court merged counts one and three and sentenced defendant to a prison term of fifteen years, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On this appeal, defendant raises the following points of asserted error:
POINT I: THE MOTION COURT COMMITTED HARMFUL ERROR BY FAILING TO APPLY A "TOTALITY OF THE CIRCUMSTANCES ANALYSIS" IN ADMITTING THE DEFENDANT'S STATEMENTS INTO EVIDENCE.
POINT II: THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY ON ROBBERY BECAUSE IT FAILED TO INSTRUCT THE JURY ON "CAUSATION" AND BECAUSE IT FAILED TO RELATE THE LAW TO THE FACTS OF THE CASE (NOT RAISED BELOW).
POINT III: THE "PRESUMPTIVE" FIFTEEN (15) YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ARMED ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON*fn1 AND STATE
(A) IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF TEN (10) YEARS ON THE DEFENDANT'S CONVICTION FOR A FIRST DEGREE CRIME WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
(B) IMPOSITION OF THE THEN-PRESUMPTIVE FIFTEEN (15) YEAR SENTENCE FOR A FIRST DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
We have carefully considered defendant's arguments in light of the facts developed at trial and in light of applicable law. None of defendant's arguments has sufficient merit to warrant a reversal of the judgment of conviction.
At about 6:00 p.m. on September 27, 2001, Daniel Gibson, a plainclothes store detective at the Value City department store in Ocean Township, observed defendant in the ladies' department of the store and Gibson decided to undertake surveillance of defendant. During the course of this surveillance, defendant was observed with a woman's blouse and a package of men's underwear in his cart, which defendant subsequently placed inside a Value City shopping bag. Carrying the shopping bag, defendant proceeded past eight cash registers and through a set of exit doors into a vestibule area where Gibson confronted him. Although defendant and Gibson disagree as to whether Gibson identified himself as store security, it is not disputed that the two men became engaged in a physical struggle. In the interim, a store employee went to a pay phone to notify police.
While they struggled, both men fell, with defendant landing on a bench and causing it to break one of the windows in the vestibule. Defendant then took hold of a thirteen to sixteen inches long, and four to five inches wide, shard of glass from the frame of the window and, according to Gibson, proceeded to stab at the area of Gibson's left shoulder and neck. Gibson also testified that as defendant raised the glass above his head to strike a third time, defendant threatened to kill him. In any event, Gibson released his hold on the defendant and defendant fled the store. Gibson suffered bruising on his arm and cuts on his hand in addition to a tear in the shoulder of his jacket.
After police arrived, the Value City shopping bag dropped by defendant was found to contain a three dollars and ninety-nine cents ($3.99) package of men's underwear, a twenty-nine dollars and ninety-nine cents ($29.99) package of bed sheets, and a four dollars and ninety-nine cents ($4.99) container of All brand detergent. There were no receipts with the items in the bag. Gibson provided the police with a description of the defendant, and he later provided an out-of-court identification of defendant in a photo array at the Ocean Township Police Department on September 28, 2001.
Meanwhile, the police determined that someone matching the defendant's description was living at the Chalet Motel. At approximately 9:00 p.m. on the evening of the incident, a police officer noticed defendant and his girlfriend return to the motel and notified Detective Joseph Pangaro who, in turn, responded to that location with other officers. Defendant, looking out the window, noticed the police presence and told his girlfriend he was going to hide and that she should say he was not there, if she was asked.
Before knocking on the door, Detective Pangaro heard a male and female talking. When the girlfriend opened the door, the officers identified themselves and stated that they were looking for defendant, for whom they had a traffic warrant. The girlfriend stated that defendant was not there, but Pangaro noticed near the bed a pile of clothing that matched Gibson's description of the clothing worn by the person with whom he had struggled. Pangaro told the girlfriend that he believed she was lying and that she would be charged if she continued to lie. She then consented to a search of the room, which quickly revealed defendant hiding under the bed, without a shirt and with blood on his hands. Both defendant and his girlfriend were arrested and taken to Ocean Township Police headquarters. Once there, officers separated them.
Two officers with Emergency Medical Technicians (EMT) training assessed defendant's wounds and asked if defendant wanted to go to the hospital; he refused. Detective Pangaro offered the shirtless defendant the top half of a disposable jumpsuit to wear after defendant complained that he was cold. After booking, defendant was taken into an interrogation room and advised of his Miranda*fn3 rights from a form. Defendant then read each of the rights himself, initialed each one, signed the waiver form and agreed to talk to the officers.
Defendant told officers that he had exchanged a shirt at Value City for some other items, and he admitted that even though he did not have any money left, he decided to take a package of underwear. Then, as he was leaving, defendant alleges a large black man -- the security guard -- grabbed him from behind without saying anything and began to wrestle with him. According to defendant, this person threw him into the window, cracking it. Defendant stated that when he fell into the window, a large shard of glass fell into his hand and stuck there. He did not remember if he threatened to kill the man, but he pleaded for the man to get off him. When the man let him go, defendant fled the store, leaving the bag behind. He explained he did not go to the police because he believed that he had an outstanding traffic warrant.
After questioning defendant for approximately forty-five minutes to an hour, officers questioned his girlfriend. The officers then confronted defendant with discrepancies between his and the girlfriend's version of events. Thereafter, a fingerprint expert for the Ocean Township Police identified defendant's fingerprints on a shard of glass found at the store.
Defendant took the stand to testify in his own defense. He reiterated the statement he had given. He conceded that he had shoplifted a package of underwear when Gibson attacked him. Defendant denied stabbing at or using any force against Gibson.
Defendant's first argument on appeal is that his statement to police should not have been admitted into evidence. Defendant alleges that, under the totality of the circumstances test, his statement was coerced.
Once the State shows that Miranda warnings were given, as they were in this case, it must next show that the defendant knowingly, voluntarily and intelligently waived these protections. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707; State v. Knight, 183 N.J. 449, 461 (2005). In making that determination, the court utilizes a "totality of the circumstances" test and assesses such considerations as the "'suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.'" Knight, supra, 183 N.J. at 462 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)). One of the critical factors in determining whether a statement is coerced is the conduct of the interrogating police officers. State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003).
In support of his argument that his statement was coerced, defendant points out that "[s]olicitous conduct and pretended friendship can overcome the free will of a suspect in custody." Thus, in this case, defendant does not complain of long hours of interrogation, nor physical violence, harsh tones or oppressive conditions. Rather, he notes that officers provided him with cigarettes and coffee when he asked, and he contends that such gestures of kindness and apparent generosity were used by his interviewers to undermine his will. Such a tactic, if employed, seems to us to be incredibly indirect and horrifically ineffective as a tool of coercion. See State v. Morton, 155 N.J. 383, 450 (1998) (citing offer of food and drink as supportive of voluntariness of statement).
Similarly, defendant highlights the allegedly demeaning or embarrassing circumstance of his having been questioned while he was wearing a disposable jumpsuit top. In this instance, defendant had removed his own shirt and was only partially clothed when he was found hiding under the bed. He thereby created or significantly contributed to the situation himself. See, e.g., Knight, supra, 183 N.J. at 467. When defendant complained of being cold, he was provided the disposable garment about which he complains on appeal. Again, this is an instance of defendant claiming his will was overborne by kindness. This clearly is not coercive.
Defendant also argues that the police took his girlfriend into custody without justification and that had the capacity to invalidate his knowing and voluntary waiver of his Miranda rights. This is not a case such as State v. P.Z., 152 N.J. 86, 114-16 (1997), and cases discussed therein, where officers frightened the defendants into confessing by threatening to take away their children or to prosecute family members if they did not cooperate. Ibid. That is clearly not what happened here. Officer Pangaro testified, and defendant does not contest this, that he never told defendant that his girlfriend would be prosecuted if he did not cooperate in the investigation. Additionally, before defendant gave his written statement, defendant was made aware that officers were releasing his girlfriend and they gave him an opportunity to speak to her.
There is nothing to show that taking the girlfriend into custody after she lied to police about defendant's whereabouts was not justified or unduly coercive. Even if defendant believed his girlfriend might be treated more favorably if he cooperated, "[a] defendant's state of mind is not dispositive of whether that defendant's 'will has been overborne and his capacity for self-determination critically impaired.'" Id. at 115 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 366 L.Ed. 2d 854, 862 (1973)).
Finally, defendant contends that officers acted improperly when they asked to hear defendant's "side of the story." In this regard, defendant cites State v. Shelton, 344 N.J. Super. 505, 516 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). There, another panel of this court found a detective's actions to be improper when he told a suspect that it would be in the suspect's best interest to give his side of the story after the suspect had invoked his right not to give a written statement. Id. at 515-16. No such advice was given or even alleged in this case.
The court has not proscribed the use of the phrase, "give us your side of the story," and nothing about that phrase is inherently misleading or deceitful, especially where a defendant has not asserted a right to remain silent. In this case, defendant was already speaking to officers and had not indicated any reluctance to give an oral or written statement when Officer Pangaro urged him on by asking to hear his side of the story. The capacity to mislead or to overreach, which was an evident concern in Shelton, is simply not present here.
As defendant's next point of error, he asserts that the judge committed plain error in his instructions to the jury. Because defendant did not raise these objections at the time the jury was charged, he must show "error clearly capable of producing an unjust result." R. 1:7-2; R. 2:10-2.
Defendant concedes in his appellant's brief that "the trial court gave a proper model jury charge on robbery[.]" Nevertheless, he argues the court committed plain error "because the charge was not tied to the facts of the case, and because the trial court failed to give a 'causation' instruction as it related to the issue of what may properly be considered as being in the course of committing a theft." Essentially, defendant argued that Gibson's acts escalated the simple shoplifting into robbery.
The jury was presented with Gibson's version of events in addition to defendant's testimony that Gibson was the aggressor and that he [defendant] only grabbed at the glass shards to prevent injury to himself. The facts of this case, though controverted, are not complex. If the jury had credited defendant's version of events, they might not have found him guilty of robbery, determining that he did not have the requisite mental state necessary for robbery or that his actions did not otherwise come within the elements of that offense. On the other hand, they were properly instructed that "in the course of committing a theft" encompasses acts committed "during the commission of the theft itself or in the immediate flight after the attempt to commit the theft or the commission of the theft." Plainly, there was sufficient evidence to support the jury's verdict and no reason to believe the jurors did not fully comprehend the elements of the offenses charged.
Defendant also challenges the court's failure to tailor the jury charge by incorporating the facts of the case. We note, however, that a trial court's failure "to relate its explanation of the applicable law to the specific facts of the case will not be found to be reversible error if a reviewing court concludes that the model jury instruction adequately explained the law, especially in the absence of any objection at trial." State v. Walker, 322 N.J. Super. 535, 548 (App. Div.), certif. denied, 162 N.J. 487 (1999). Here, the instruction was adequate. There were no circumstances that required special tailoring and no alleged deficiency has been brought to our attention that would rise to the level of plain error.
We find defendant's arguments regarding sentencing to be without sufficient merit to warrant a written opinion. R. 2:11-3(e)(2). However, we do note that the court found the following aggravating factors: risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3), in light of his criminal past which included two indictable convictions; the nature and extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court also found three mitigating factors: defendant did not cause or contemplate that he would cause or threaten serious harm, N.J.S.A. 2C:44-1b(1) and (2); that incarceration would cause hardship to defendant, N.J.S.A. 2C:44-1b(11); but finding this last factor to be generally true of all defendants, the court did not give it full weight. The court also took into consideration defendant's military service.
After balancing these factors, the court found them to be in equipoise and imposed the then-presumptive sentence. Because defendant received the presumptive sentence, not a sentence in excess of that maximum under the prevailing sentencing structure, he is not entitled to a remand under State v. Natale, 184 N.J. 458 (2005).