September 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE TAYLOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1326.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Payne and Messano.
Defendant Andre Taylor was charged in a two count indictment with first-degree carjacking, in violation of N.J.S.A. 2C:15-2, and third-degree receiving stolen property, in violation of N.J.S.A. 2C:20-7. After trial, the jury acquitted defendant of carjacking, but found him guilty of the stolen property charge. Defendant was subsequently sentenced to five years imprisonment with two and one-half years of parole ineligibility, and the trial judge imposed the appropriate fines and penalties.
Defendant raises the following points for our consideration on appeal.
THE TRIAL JUDGE IMPROPERLY ORDERED THAT DEFENDANT BE HANDCUFFED DURING TRIAL. (Not Raised Below).
THE JURY INSTRUCTIONS ON RECEIVING STOLEN PROPERTY DID NOT MAKE IT CLEAR THAT IF, AS DEFENSE COUNSEL ARGUED, DEFENDANT WAS MERELY BRIEFLY INSIDE THE CAR LOOKING AROUND, HE WAS NOT IN POSSESSION OR CONTROL OF THE VEHICLE AND SHOULD BE FOUND NOT GUILTY. (Not Raised Below).
THE SENTENCE IMPOSED IS BOTH MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.
After consideration of these contentions in light of the record and applicable legal standards, we affirm defendant's conviction, but remand the matter to the trial judge for re-sentencing.
Defendant's first contention has its genesis, and finds its only support, in a brief reference from the transcript of the proceedings below. Jury selection commenced on May 16, 2005, and was completed the following morning. Outside the presence of the jury, the judge considered defendant's motion to dismiss the indictment.*fn1 At that time, this exchange took place between defense counsel and the judge.
[Defense counsel.] Your Honor, since we [are] in formal session now, would it be inopportune to request that my client at least be manacled in front or at least have his handcuffs taken off?
[Judge.] Officer Jenkarelli, any problem with the defendant being handcuffed in the front?
[Court officer.] No problem, as long as you order it.
[Judge.] All right. He will be handcuffed in front throughout the proceedings. If there's any problem, advise me immediately.
The record should reflect one of the reasons I'm ordering this is Mr. Taylor has already gone through one trial. He, during the course of that, conducted himself in the appropriate fashion and maintained the decorum that's expected in a courtroom.
There is no further reference in the transcript regarding the presence or absence of handcuffs on defendant.
We ordered a limited remand so that the trial judge, after consultation with trial counsel, could advise us whether defendant was ever handcuffed in the presence of the jury. On May 24, 2007, the trial judge reported that after conducting a hearing Both the assistant prosecutor and defense counsel state without qualification that at no time was the defendant, Andre Taylor, handcuffed, shackled or otherwise restrained in the presence of the jury.
In his reply brief, defendant argues this does not resolve the issue since the transcript remains ambiguous and never reveals when defendant's handcuffs were removed.
We find this argument to be unpersuasive. The issue defendant raises is not supported by any other facts inside or outside of the record. Trial counsel, who conscientiously requested that defendant be accommodated during the motion hearing, never again raised the issue throughout the trial. Defendant himself filed no certification contradicting the trial judge's and trial counsel's recollection of the events. Therefore, we reject the notion that defendant was actually handcuffed or otherwise restrained in the courtroom while the jury was present.
Defendant's second point requires us to review in detail the testimony adduced by the State at trial. On December 3, 2003, shortly after 10:00 p.m., Martha Alford was driving to her East Orange home when she noticed a dark car with two people in it following her. She parked her 1995 Lexus in her driveway and, as she exited her own car, observed the other vehicle parked on the street near her house. A man approached Alford and demanded she give him her pocketbook. Alford began to struggle and called for her daughter who was inside the house. The man grabbed Alford's car keys, pushed her to the ground, and entered the Lexus. Alford described the man as being between five feet six inches to five feet eight inches tall, of somewhat slim build, and between eighteen and twenty-five years of age. The man was wearing dark, perhaps black, clothing, and a dark hood, "like a mask with holes poked" in it about an inch in diameter.
Jennifer Evans Benson, Alford's daughter, testified that she heard her mother's screams and ran outside of the house to assist her. Her husband, who was outside in his car smoking a cigarette, also ran to help. Benson ran after the Lexus as it left the driveway and attempted, unsuccessfully, to grab the driver's door which was still ajar. She also described the perpetrator as having a mask over his face. Benson then saw another car slowly leave the scene after the Lexus was gone. Eventually, the police were notified and responded; neither Alford nor Benson was able to identify the perpetrator.
Detective Christine Witkowski of the East Orange Police Department testified that she was on duty at her desk when she received a radio transmission of the carjacking describing the Lexus and including its license plate number. She and her partners, Detectives Rolando Baugh and Altwain Burwell, drove around East Orange for approximately two hours before they noticed the Lexus in a parking lot next to an abandoned house. Witkowski's attention was drawn to the taillights of the car which were on. The officers turned their vehicle and parked it so as to block the driveway entrance to the parking lot. Witkowski saw the driver's side door of the Lexus open and a man running from the car. Her partners pursued him. Witkowski stayed with the Lexus and noticed the car engine was warm. She admitted that she did not see the individual who ran actually driving the Lexus.
Detective Burwell testified that his attention was drawn to the Lexus because of its taillights and the fact that it was in a lot next to an abandoned building, a place known to the officer as "notorious for stolen cars, disabled cars, [and] stripped cars." Burwell noticed the man appeared to have just closed the driver's door of the Lexus, and he still had his hand on the car. The individual ran as the officers approached and Burwell chased the suspect through the lot to the rear of 162 Brighton Avenue, the neighboring street. As backup units responded, Burwell and other officers entered the backyard of the premises and heard something moving on top of the detached garage.
In fact, defendant was atop the garage, and the officers ordered him down and placed him in custody. The police found a pair of gloves, a dark skullcap knit hat, and another hat or mask with eyeholes, next to the garage. The keys to the Lexus were never found.*fn2 Defendant gave his address as 162 Brighton Avenue and his physical description generally fit that given by Alford to the police.*fn3
Defendant did not testify or offer any witnesses in his defense. In summation, defense counsel highlighted the fact that neither Alford nor Benson could identify defendant or testify that the robber wore gloves. He also emphasized that neither Witkowski nor Burwell actually saw defendant in the Lexus, telling the jurors, "There's been no placement of my client inside the vehicle." Defense counsel hypothesized that defendant, knowing the lot was an area where "hot cars are stolen and left," "[took] a look inside," but never took "control or possession" of the Lexus.
The judge charged the jury utilizing the appropriate model jury instructions for carjacking and receiving stolen property. Defense counsel did not object to the charges given. During deliberations, the jury asked to be recharged on the elements of carjacking, ultimately acquitted defendant of that charge, and returned a guilty verdict as to the receiving stolen property charge.
Defendant now argues before us that the trial judge failed to define "possession" for the jurors when he defined the elements of receiving stolen property. He contends that the judge should have given a "more comprehensive" charge, similar to the one given in State v. Alexander, 215 N.J. Super. 522 (App. Div. 1987). There, we approved the trial judge's charge that "mere presence" as a passenger in a stolen motor vehicle was insufficient proof of guilt unless other facts and circumstances led to a reasonable inference that the defendant "constructively possessed the automobile." Id. at 530. Defendant argues that in light of the officers' failure to observe defendant actually in the Lexus, it was incumbent upon the judge to clearly define possession and distinguish it from defendant's mere presence near the vehicle.
Since there was no objection to the trial judge's charge when given, we review defendant's argument applying the plain error standard. R. 2:10-2. "As applied to a jury instruction, plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)). We consider the claim of error in light of the entire charge, State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996), and after "an evaluation of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.
The trial judge followed Model Criminal Jury Charge N.J.S.A. 2C:20-7a and appropriately advised the jury that the State needed to prove defendant "knowingly received movable property." He continued, "The term 'receive' means to acquire possession, control, or title of property." At this point, the model charge advises the judge to instruct the jury in accordance with Model Criminal Jury Charge N.J.S.A. 2C:2-1c, possession, which provides, in part, [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to 'possess' an item, one must knowingly procure or receive an item or be aware of (his/her) control thereof for a sufficient period of time to have been able to relinquish (his/her) control if (he/she) chose to do so.
Here, the judge did not include any portion of the model charge on possession, nor did he otherwise define the term for the jury.
While it would have been preferable for the judge to include the model instruction, we cannot conclude that the failure to do so had the "clear capacity to bring about an unjust result." We begin by recognizing that "[a] defendant's mere presence in or near a stolen vehicle will not create an inference of possession if there is no other evidence to establish a connection between the defendant and the vehicle." State v. McCoy, 116 N.J. 293, 300 (1989)(emphasis added). However, in the case before us, we have no doubt as to the sufficiency of the evidence connecting defendant to the stolen Lexus, and, hence, the reasonable inference that defendant was driving the vehicle immediately before the police officers observed him.
As we noted above, defendant did not testify or produce any witnesses. His argument that he never possessed the Lexus was supported merely by defense counsel's suggestion in summation. However, in reviewing whether the failure to give the model charge on identification was plain error, the Supreme Court stated in State v. Cotto, 182 N.J. 316, 326 (2005), "The determination of plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing."
In this case, the State's evidence that defendant possessed the stolen Lexus was overwhelming. Alford's physical description of the man who accosted her generally fit defendant who was seen, some two hours after the theft and in the same municipality, exiting the Lexus or in close proximity to the driver's door. The car was parked in a lot next to an abandoned building that was known to harbor stolen motor vehicles. When first seen, the taillights of the vehicle were on and, moments later when the officers were at the vehicle, they determined its engine was warm. When he observed the officers, defendant fled to premises he claimed was his home; yet, he did not enter the house but rather attempted to secrete himself on top of a garage roof, and was found in close proximity to gloves and two hats, one of which fit the unique description of the mask worn by the perpetrator. Based upon all of this and the reasonable inferences available to the jury, we conclude the evidence amply supported the finding that defendant possessed the Lexus and that it was not a fleeting or passing control.
Perhaps more importantly, a complete review of the trial record reveals that whether defendant possessed the Lexus or not was never the "key issue at trial." State v. Green, 86 N.J. 281, 291 (1981). A key issue has been defined as one that is "the major . . . thrust of the defense." Ibid. The failure to give a required charge on a key issue may indeed amount to plain error. Cotto, supra, 182 N.J. at 326.
In this case, however, the major thrust of the defense was on the issue of identification. Defense counsel emphasized Alford's and Benson's failure to identify the perpetrator of the carjacking or state with certainty that he wore gloves during the incident. He stressed that while defendant may have been found in close proximity to gloves and a similar looking mask, the keys to the Lexus were never found. In suggesting that defendant may have wandered into the parking lot and curiously looked in or at the Lexus, defense counsel was simply augmenting the argument that defendant was not the same person who confronted Alford two hours earlier, violently assaulted her, and stole her vehicle. We are convinced, therefore, that the issue of possession -- suggested to be insufficiently fleeting or totally lacking in control -- was never a key issue at trial.
We therefore conclude that the trial judge's failure to give the model instruction on possession within the charge he gave on receiving stolen property was not plain error and provides no basis to reverse defendant's conviction.
Lastly, defendant asserts that his sentence was "manifestly excessive," and otherwise ran afoul of the holding in State v. Natale, 184 N.J. 458 (2005). The State concedes that because defendant received a sentence greater than the former presumptive term for third-degree receiving stolen property, he is entitled to be re-sentenced in accordance with Natale. We agree that a remand is necessary for those purposes.
Affirmed. Remanded solely for the purpose of re-sentencing defendant in accordance with Natale.