July 2, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONNY REEVEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-12-2993.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2007
Before Judges Lintner and C.L. Miniman.
On December 23, 2004, a Monmouth County grand jury charged defendant, Donny Reevey, with first-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9a (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); second-degree burglary, N.J.S.A. 2C:18-2 (Count Three); fourth-degree theft, N.J.S.A. 2C:20-3a (Count Four); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Count Seven); and third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (Count Eight). Count Four was dismissed prior to trial.*fn1
On the first day of trial, following an evidentiary hearing, the trial judge determined that the victim, Gregory Covington's prior statements to the police were reliable and admissible under N.J.R.E. 803(a). On June 28, 2005, a jury found defendant guilty of Counts One, Two, Three, Seven, and Eight.*fn2 The judge found that defendant qualified for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, however, he imposed an ordinary term of twenty-years with an 85% period of parole ineligibility under the No Early Release Act*fn3 on the robbery conviction. The judge imposed terms of fifteen years on the first-count conviction; ten-years with five years of parole ineligibility on the third-count conviction; five-years with two-and-one-half-years of parole ineligibility on the seventh-count conviction; and eighteen-months with nine-months of parole ineligibility on the eighth-count conviction. Those terms were to run concurrent with one another and with the twenty-year term imposed on the second count. Defendant appeals and we affirm.
The victim, Gregory Covington, gave the following testimony at trial. On July 24, 2004, at approximately 4:00 a.m., he heard a knock at the front door to his apartment in Keansburg. As he opened the door, he saw an individual wearing a ski mask. He immediately shut the door, locked the deadbolt, and went toward his bedroom. Before Covington could make his way into the bedroom, the apartment door was forced open and he was pushed onto his bed. Covington did not see who entered the apartment. While on his knees, with his head and chest facing down on the bed and a cover over his head, Covington felt something on "the back of [his] head" and he was told by a "white guy" that "it was a 'GAT' which is interpreted as a gun." According to Covington, "the white guy asked for money and drugs" and proceeded to remove Covington's bracelet.
Meanwhile, a neighbor had called the Keansburg police and reported a break-in at Covington's apartment. Patrolmen Tiffanie Dill and Wayne Davis responded to the apartment. According to Dill, defendant "came from behind the door swinging both of his arms" at her and Davis. Eventually, the officers "wrestled [defendant] to the ground where he was still combative," causing Davis to administer a burst of Oleoresin Capsicum (OC) spray in defendant's face.
Covington testified that after the police arrived at his apartment he removed the cover from over his head and saw the police "on top of" defendant in the living room while the "white guy" sat next to Covington on his bed and co-defendant Stevens stood by the dresser. Covington stated that the items taken from him that night included two cell phones, several pieces of jewelry, and approximately $400. He had known defendant for about two or three months prior to the incident. On cross-examination, Covington admitted that he used to sell drugs from his apartment and that certain individuals whom he "would sell [drugs to] and get high with . . . would just come in."
Within an hour after the incident, Covington went to police headquarters where he submitted a handwritten complaint. He returned home but later went back to police headquarters and provided Detective Gary Kronenberger with a formal statement. According to Covington's statement, three individuals broke into his apartment and a person by the name of "World" (co-defendant Stevens) pushed him to the end of his bed while "Donny" (defendant) "went in [Covington's] pockets and took [his] money out." He noted in his statement that a "white guy" told him he "had a GAT to the back of [his] head." He also stated, "[t]hen I seen Donny going into the kitchen and World was in the same room looking in drawers, looking under the bed. Then all of a sudden I hear 'freeze, freeze,' then I look up and see Keansburg's finest."
In his statement, Covington mentioned that he had met World twice before, had known Donny for "about a month" and had met the "white guy . . . just one time for about 15 minutes." He told the detective that "World had the black stocking cap, the white guy had a blue do-rag over his face and I'm not sure what Donny had on his face." After completing his formal statement, Covington reviewed the statement, certified that it was truthful, and signed it.
At trial, despite his prior statements, Covington denied having actually seen three individuals enter his apartment on July 24, 2004. He testified that he could only assume one individual was present because only one person spoke to him. While Covington admitted that he saw defendant and co-defendant Stevens in his apartment after the police arrived, he denied seeing anyone who he knew as "World." Covington maintained that he only saw a "white guy" during the commission of the crime and did not actually see defendant or Stevens.
Covington claimed that his prior statements were incorrect because at the time he "was indulging in drinking, smoking, and . . . wasn't in the right frame of mind." He asserted that he drank six or seven beers and ingested about a gram of cocaine, an ecstasy pill, and "a couple of OxyContin." Both Kronenberger and Davis, however, testified that Covington did not appear to be under the influence of any intoxicants, his eyes were not bloodshot, he did not slur his words, he did not have difficulty walking into the room, and he was responsive to questions.
J.H., sixteen-years-old at the time of the offense, testified on behalf of the State and gave the following account.*fn4
On July 24, 2004, he was "was hanging out with a couple of friends drinking, smoking marijuana. Doing a lot of other drugs." According to J.H., defendant approached him and asked him "to go take a walk with him." Defendant told J.H. that he intended to rob Covington and that if J.H. did not participate, defendant would harm J.H.'s family. The two walked to a house where they met up with Stevens and were provided with masks.
J.H. indicated that Stevens' "street name" was "World." At the time, both J.H. and Stevens were carrying pocketknives.
J.H., Stevens, and defendant went to Covington's apartment. J.H. knocked on the door. Covington "opened the door and slammed the door shut." Defendant then "proceeded to slam through the door." Covington was forced onto his bed and a cover was placed over his head. J.H. held his knife to Covington's head and told him, "If you move I'm going to kill you." Defendant and Stevens then went through Covington's apartment until the police arrived.
Stevens testified on his own behalf. He claimed that Covington invited him to his apartment. While there, Stevens did "three or four lines" of cocaine. When a masked man entered the apartment, Stevens felt "paranoid," and went into Covington's bedroom. After "15 to 20 minutes," the police entered the apartment and "told everybody to freeze." Stevens denied knowing either defendant or J.H. and asserted that they were not in the apartment at the time of the incident. He also denied being referred to as "World." Defendant did not testify.
On appeal, defendant raises the following contentions:
THE ADMISSION OF THE STATE'S KEY WITNESS, GREGORY COVINGTON'S, PRIOR INCONSISTENT STATEMENT WAS CONTRARY TO THE LAW OF STATE V. GROSS AND DENIED DEFENDANT A FAIR TRIAL AND HIS RIGHT TO CONFRONTATION. (U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. I, PAR. 10).
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, PAR. 10. (Not Raised Below).
THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
At the conclusion of a pre-trial Gross*fn5 hearing, the trial judge found that Covington's prior statements to the police would be introduced as substantive evidence if he testified in a manner inconsistent with them. The judge determined that the statements made by Covington on July 24 "were given with an interest in telling the truth" and were "inherently believable and reliable in the manner that they were given and taken." The court also found "a feigning of the lack of recollection and a purposeful misleading of this Court in the testimony that was given by Mr. Covington when he denies making certain statements."
Defendant maintains on appeal that the judge did not properly apply the factors enunciated in Gross. He asserts that Covington was intoxicated at the time he gave his statements and that their admission denied him a fair trial and right to confrontation.
N.J.R.E. 803(a)(1)(A) permits a witness's prior inconsistent statement to be admitted as substantive evidence, provided the statement was made "in circumstances establishing its reliability." In Gross, supra, 121 N.J. at 15-16, the Court held that a prior inconsistent statement made by a witness may be admitted as substantive evidence if the proponent of the statement proves its reliability by a preponderance of the evidence based on all surrounding circumstances. The Court agreed with the fifteen factors we articulated for proper evaluation of the reliability of a prior inconsistent statement:
"(1) the declarant's connection to and interest in the matter reported in the outof-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence." [Id. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]
The determination of the reliability of the statement based upon all of the relevant factors should be made out of the presence of the jury. Gross, supra, 216 N.J. Super. at 110.
As a victim, Covington's only interest in providing the statements was to tell the truth and assist the police in apprehending his assailants. He gave both statements voluntarily at police headquarters on the very same day as the crime. Covington was not in custody nor was he the target of an investigation at the time. The judge found Covington's claim that he was drunk and on drugs less convincing than the testimony given by both police officers. The judge also found credible the officers' assertions that Covington was not coerced or pressured to make the statements. Indeed, the officers were not present at the time Covington completed his handwritten statement and Covington was given sufficient opportunity to review and sign his formal statement.
The trial judge's factfindings are supported by sufficient credible evidence in the record. We are required to defer to the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999). Moreover, Dill and Davis, as well as J.H., provided ample corroborating evidence in their descriptions of the events on July 24, 2004. The prior inconsistent statements were properly admitted under N.J.R.E. 803(a)(1)(A).
Defendant next challenges two portions of the prosecutor's summation, asserting that the prosecutor's closing arguments, which were not objected to, amounted to plain error warranting reversal. The applicable principles are well settled. A prosecutor may make comments on the evidence and the inferences that may reasonably be drawn from the proofs. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 156 N.J. 122, 194 (1998), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed. 2d 1034 (2001); State v. Perry, 65 N.J. 45, 47-48 (1974); State v. Farrell, 61 N.J. 99, 103 (1972); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). It is inappropriate, however, for a "'prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant,'" State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. 1980)), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993), or to refer to matters that are not fairly supported by the evidence. State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 350 (1953).
In evaluating a claim of error, however, we are obliged to recognize that a prosecutor may argue the State's case in a forceful manner. State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Where, as here, the defendant's lawyer fails to object at trial, we may legitimately infer that counsel did not consider the remarks to be inappropriate or prejudicial. State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993).
Neither portion of the prosecutor's summation as challenged by defendant was improper, much less plain error. The first dealt with the fact that when Covington gave his statements neither defendant was present and both statements were given before he had a chance to deliberate as to what might happen if he told the police what happened. Those arguments by the State were proper as they were based on the evidence in the record.
Defendant contends that the following closing remarks concerning the non-existence of any deals amounted to either testimony by the prosecutor or an implication that the prosecutor had some type of personal knowledge:
I'm also not going to insult your intelligence that I gave Mr. Covington a deal to testify in this case. Do you really think that if I was going to give him a deal I would have had to go through all of this to get his testimony? Do you really think that you would have to have these statements handed to you so that you could read them yourself? No, that's not the way it works.
He recanted; that's why you have these statements. Because you have these statements are the reason why you are going to know what exactly happened. So I submit to you I'm not again going to insult your intelligence that I offered Covington a deal to get these guys. (emphasis added).
On direct examination, Covington equivocated when the prosecutor questioned him concerning the lack of any agreement with the State for Covington to testify against defendant in return for a plea bargain on his unrelated drug offenses. Covington claimed the idea "was tossed around with maybe some mention of it with my lawyer that if I testified maybe it could work in my favor for my case." The State then presented testimony from the assistant prosecutor who was assigned to Covington's drug case. She testified that there were no discussions during Covington's plea negotiations that Covington would provide testimony for the State in defendant's case. In his summation, defense counsel alluded to Covington's testimony that Covington believed there were conversations concerning a deal.
The State's closing arguments were made in response to Covington's claim. Contrary to defendant's contentions, they were neither improper in the context in which they were made nor did they imply any personal knowledge on the part of the prosecutor.
Finally, defendant asserts that the sentence imposed was excessive and improperly disparate with the fifteen-year sentence imposed on co-defendant Stevens. We have considered defendant's contention and supporting argument and are satisfied that the sentence imposed is not excessively disparate. Both defendant and Stevens had prior juvenile histories. However, unlike defendant who had two prior adult convictions, Stevens had none. See State v. Roach, 146 N.J. 208, 233, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 135 L.Ed. 2d 424 (1996). Although defendant qualified for an extended term as a persistent offender, he was given the maximum within the ordinary range. In our view, defendant's sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215- 16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984).