October 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY SCOTT MILLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-02-0155.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2007
Before Judges Parker and Lyons.
Defendant Gary Scott Miller appeals from his conviction on second-degree robbery charges and from the sentence imposed. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
In September 2004, the victim, Aurelio Tepo-Tula, worked at a restaurant in Passaic. Tepo-Tula was employed in the kitchen and usually worked until 3 a.m. On September 6, 2004, Tepo-Tula got out of work at 4 a.m. and began his fifteen-minute walk home. That evening, he had gotten paid $380 in cash, two $50 bills and the rest in $20 bills, which he placed in his back pocket. When Tepo-Tula reached the corner of Monroe Street and Leonard Place, he was approached from behind by two men, one of whom grabbed Tepo-Tula's arm and held it behind his back and forced Tepo-Tula face down on the ground. The other man checked Tepo-Tula's pockets and took the $380. Tepo-Tula never saw the men's faces. While still lying on the ground, Tepo-Tula observed the men running away down Leonard Place. Tepo-Tula could tell that the men were black, one of the men had a shaved head and wore a black shirt, and the other had a handkerchief on his head.
As Tepo-Tula was getting up, Sergeant Cruz from the Passaic Police Department pulled up in a police car. As Sergeant Cruz was driving west on Monroe Street, he had seen Tepo-Tula staggering and two men running away from him down Leonard Place. Sergeant Cruz observed that both men were black, one man was wearing a white shirt, the other man was wearing a black shirt, and both men were wearing jeans. Sergeant Cruz then notified headquarters that there was a possible robbery and pulled up to Tepo-Tula. Sergeant Cruz testified that he then asked TepoTula, in Spanish, "What happened?" to which Tepo-Tula replied, "Those two just robbed me," and pointed. However, Tepo-Tula testified that Sergeant Cruz asked him where the men had gone, and he pointed, but that Sergeant Cruz did not ask what happened until he told him to get into the police car. Sergeant Cruz testified that he told Tepo-Tula to stay put and then radioed in a description of the men and their location. Sergeant Cruz then continued down Monroe. As he passed Martha Street, he looked down it and saw one of the men run across.
Sergeant Cruz then met up with Officer Leonhard and his K-9 police dog, Storm. Officer Leonhard directed Storm to begin tracking at the corner of Martha and Madison. Storm led Officer Leonhard between the buildings at 280 and 282 Madison Street into the backyard. Storm began circling near a fence between 280 and 278, but Officer Leonhard pulled Storm off the scent at that point because the backdoor of one of the houses was open and, for safety reasons, he never passes an open door. Officer Leonhard then approached the door and, yelling loudly, advised anyone inside that he was about to release his dog.
At that point, Officer Hernandez, who was in the yard next door, yelled that he had found defendant. Defendant was lying in tall grass next to a garage. Officer Hernandez then ordered defendant to stand up which he did. Defendant was wearing jeans and a black hooded shirt, with the hood up. Tepo-Tula was brought to the scene where he identified defendant as one of the men who attacked him. Defendant was then taken into custody and searched. Three hundred dollars was found on defendant; there were two $50 bills and the rest were $20 bills.
On February 10, 2005, a Passaic County Grand Jury returned an indictment charging defendant Gary Scott Miller with second-degree robbery, contrary to N.J.S.A. 2C:15-1. The case was tried over four days, and on October 21, 2005, the jury found defendant guilty of second-degree robbery.
On January 30, 2006, the trial judge denied defendant's motion for a new trial. The judge then sentenced defendant to a thirteen-year discretionary extended term, with an eleven-year-and-seventeen-day period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as all required penalties and fines.
On April 19, 2006, defendant filed a notice of appeal. On appeal, defendant presents the following arguments for our consideration:
IN REFUSING TO PERMIT DEFENSE COUNSEL TO CROSS-EXAMINE THE ALLEGED VICTIM ON HIS ILLEGAL IMMIGRATION STATUS FOR THE PURPOSE OF IMPUGNING HIS CREDIBILITY, THE COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AND TO PRESENT A DEFENSE.
THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
THE COURT CREATED ERROR OF CONSTITUTIONAL DIMENSION BY FAILING TO INSTRUCT THE JURY AS TO THE LESSER INCLUDED OFFENSE OF THEFT FROM THE PERSON.
THE 13-YEAR EXTENDED TERM IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.
THE MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. MAURICE PIERCE.
We will address defendant's arguments seriatim. Prior to Tepo-Tula's testimony, the trial judge ruled that defense counsel could not inquire whether or infer that Tepo-Tula was illegally in the United States. During cross-examination, however, defense counsel was permitted to elicit that Tepo-Tula did not properly report his entire income to the IRS. Tepo-Tula was not questioned, though, regarding his immigration status pursuant to the court's earlier ruling. Later in the trial when Sergeant Cruz was testifying, defense counsel asked the sergeant about people filing false police reports to hide their own criminal activity. The prosecutor objected at this point. Defense counsel argued that his question was meant to develop his defense theory that Tepo-Tula reported a robbery to avoid getting in trouble with the police for being an illegal alien. The trial judge labeled this theory as rank speculation without foundation and did not permit the questioning.
On appeal, the defense argues that it should have been allowed to elicit from Tepo-Tula that he was an illegal alien in order to suggest that his flouting of the immigration laws denoted a disregard for the law in general and diminished his overall credibility. In addition, the trial counsel had argued that he wished to question Tepo-Tula about his status in the country to develop his theory that Tepo-Tula fabricated a robbery so that the police would not act against him as an illegal alien.
Both of these defense arguments are premised on the fact that both our federal and state constitutions guarantee criminal defendants the right to present evidence in their defense. U.S. Const. amends. VI, XIV; N.J. Const., art. I, ¶¶ 1, 10.
Both constitutions also guarantee a criminal defendant the right to confront witnesses. U.S. Const. Amend. VI; N.J. Const., art. I, ¶¶ 1, 10. "A defendant's right to confrontation is exercised through cross-examination, which is recognized as the most effective means of testing the State's evidence and insuring its reliability." State v. Guenther, 181 N.J. 129, 147 (2004). N.J.R.E. 611 vests with the court discretion to exercise reasonable control with respect to cross-examination and provides that cross-examination should protect witnesses from harassment and undo embarrassment. It is generally limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
Our Supreme Court has noted that constitutional confrontation rights do not bow to the "mechanistic application of a state's rules of evidence or procedure [that] would undermine the truth-finding function by excluding relevant evidence necessary to a defendant's ability to defend against charged offenses." State v. Garron, 177 N.J. 147, 169 (2003). The Court further noted, however, that "the Confrontation Clause was not intended to sweep aside all evidence rules regulating the manner in which a witness is impeached with regard to general credibility." Guenther, supra, 181 N.J. at 150. Limits on cross-examination, therefore, must be balanced against a defendant's right of confrontation. While the scope of permissible cross-examination concerning credibility is broad, counsel may not cross-examine a witness about any subject. State v. Silva, 131 N.J. 438, 444 (1993). Trial judges may properly limit cross-examination to the relevant issues in the case. State v. Messino, 378 N.J. Super. 559, 583 (App. Div.), certif. denied, 185 N.J. 297 (2005). A trial judge, therefore, may control the extent and manner of a defendant's cross-examination of witnesses, provided that defendant's overriding right to present a defense is not compromised. State v. Jones, 346 N.J. Super. 391, 405 (App. Div.), certif. denied, 172 N.J. 181 (2002).
In striking the appropriate balance, the trial court must determine first that the matter to be inquired into is relevant to the trial or particular credibility of the witness. Second, there must be an appropriate proffer that indicates the ability of the cross-examiner to prove the facts contained in the question and to demonstrate the admissibility of that proof, particularly when the question relates to potentially inflammatory matters. See State v. Rose, 112 N.J. 454, 499-500 (1988); State v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1999). Also, the trial judge must carefully determine if the line of questioning and evidence sought to be induced has a substantial danger of undue prejudice accruing to the objecting party if the proffered evidence was introduced. State v. Balthrop, 92 N.J. 542, 546 (1983).
In this case, the record does not indicate that defense counsel was able to make a proffer that he had a basis to prove Tepo-Tula was an illegal alien. His residency status in this country was -- at best -- tenuously relevant. There is also no indication that he lied when he entered this country. In point of fact, there is no indication of how he entered this country at all.
There was also no basis for defense counsel's theory that Tepo-Tula was fabricating a robbery because he was afraid the police would deport him. We can take judicial notice that municipal police departments generally are not charged with enforcing federal immigration and naturalization statutes. Lastly, the trial judge appropriately recognized that in a case in which one's immigration status has scant, if any, relevance to the charges before the court, injecting one's residency status has the potential to seriously prejudice a jury in today's environment. Therefore, we find the trial judge's ruling barring the questioning of the victim about his residency status to have been an appropriate exercise of his discretion.
Defendant asserts that the prosecutor's remarks during summation were inappropriate. The prosecutor, in commenting on Sergeant Cruz's testimony, said:
Now, that, I submit to you, is a lot to accept because what you would have there is some fellow coming into court, taking the oath and, despite the fact that he agrees to tell the truth, he sets about bearing false witness against one of his neighbors to the point where someone can be falsely convicted, incorrectly convicted of a crime he didn't commit.
Later, the prosecutor said in his summation:
But if you don't think he's making that up and consciously bearing false witness against his neighbor and trying to frame an innocent man, then stay in the [the jury room] awhile and think about this a little more thoroughly.
Defense counsel argues on appeal that the phrase "bearing false witness against his neighbor" is one which has religious connotations and, therefore, is improper. Further, defense counsel argues that this was essentially an impermissible statement that a police office has no motive to lie.
We note at the outset that no objection was made at the time of trial, thereby depriving the court of an opportunity to take a curative action, if any were required. When defendant fails to object, remedial action is only appropriate when "the comments were egregious and deprived defendant of a fair trial." State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003). We do not interpret the prosecutor's statements as defense counsel has suggested. The statement "bear false witness against one's neighbor" is merely a wordy and archaic way of saying "lie."
The prosecutor did not suggest that Sergeant Cruz should be believed because he would not bear false witness against a neighbor, but rather asked the jury to decide on whether it appeared that he was bearing false witness against his neighbor. Further, defense counsel's argument that this was essentially a statement that a police officer had no motive to lie is not supported by the actual words used. We find, therefore, that this position lacks merit. R. 2:11-3(e)(2).
Defendant contends that the trial judge should have instructed the jury with regard to the lesser-included offense of theft from a person in addition to second-degree robbery. Defendant failed, however, to raise this objection before the jury retired for deliberations. See State v. Harris, 373 N.J. Super. 253, 270 (App. Div. 2004) (construing R. 1:7-2). Thus, this argument is subject to the plain error standard. R. 2:10-2.
The Supreme Court has held that "where the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have the charge rendered to the jury, and no one's strategy, or assumed (even real) advantage can take precedence over that public interest." Garron, supra, 177 N.J. at 180 (citing State v. Powell, 84 N.J. 305, 319 (1980)). Moreover, [t]he judge is more than a referee between contestants. He is the law's representative, and it is his duty to see that the will of the law is done." Ibid. A defendant should not "be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." Ibid. (emphasis added). Thus, parties cannot claim to be "surprised" when a court chooses to instruct a jury on a clearly indicated lesser-included offense. Ibid.
A trial court, therefore, must give a requested instruction for a lesser-included offense "if there is a rational basis in the record to do so." Id. at 181 n.5 (citing State v. Choice, 98 N.J. 295, 298 (1985)). See also State v. Muhammad, 182 N.J. 551, 577 (2005) (holding that "[w]hen a court charges a lesser-included offense and neither party objects, . . . a conviction of the lesser charge is upheld so long as the evidence in the record provides rational support for the conviction."). Further, the court is obligated to give a jury charge on a lesser-included offense, absent a request, if it is clearly indicated in the record. Garron, supra, 177 N.J. at 181 n.5. Where the instruction is not clearly indicated and no request is made for such a charge, "the court need not sift through the record to determine whether any combination of facts would support a lesser charge." Ibid.
Under N.J.S.A. 2C:1-8:
d. Conviction of included offense permitted. A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8(d).]
The trial court, however, "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."
Here, defendant failed to request the lesser charge during trial. Moreover, he did not object to the charge that was given. Thus, the trial court was only obligated to give the lesser charge if the facts clearly indicated it is necessary. See Garron, supra, 177 N.J. at 180. Therefore, the issue is whether the facts before the jury clearly indicate that defendant did not commit robbery, but did commit theft from the person.
The robbery statute provides that: "A person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1(a). We have held that, where there is a question whether the defendant's act of "inflict[ing] bodily injury," "us[ing] force upon another" or "threat[ening] another with [or] purposely put[ting] him in fear of bodily injury" occurred "in the course of committing a theft," the trial court must submit theft to the jury as a lesser included offense of robbery. [State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003) (quoting State v. Jordan, 240 N.J. Super. 115 (App. Div.), certif. denied, 122 N.J. 328 (1990)).]
Therefore, the theft-of-person charge should only have been included if the jury could rationally conclude from the evidence that defendant took the money from Tepo-Tula but did not use force. From the proofs submitted here, there does not appear to be any way to conclude that force was not used on Tepo-Tula.
Regardless of whether he was struck or just knocked down, all of the testimony indicates force was used against him. There is no rational basis, therefore, to conclude that the theft charge should have been given, and there was certainly no clear indication of its necessity.
Next, defendant contends that this case should be remanded for resentencing because of our Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006), and because the sentence was manifestly excessive under all the circumstances. While we find no abuse of the court's discretion in arriving at its sentence, we do find, and the State conceded, that this case is within the State v. Pierce "pipeline." Therefore, we remand the matter for resentencing in accordance with State v. Pierce.
We affirm this conviction in all respects but remand for resentencing in accordance with State v. Pierce.
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