October 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Payne and Messano.
Defendant Eric Smith was indicted by the Union County grand jury and charged with carjacking in the first degree, N.J.S.A. 2C:15-2; robbery in the first degree, N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose in the third degree, N.J.S.A. 2C:39-4d; unlawful possession of a weapon in the fourth degree, N.J.S.A. 2C:39-5d; and possession of a controlled dangerous substance in the third degree, N.J.S.A. 2C:35-10a(1). At trial, he was convicted by the jury of all charges.
After appropriate mergers, the judge sentenced defendant to twenty-eight years imprisonment with an eighty-five percent parole disqualifier under NERA*fn1 on the carjacking conviction, and eighteen years imprisonment with an eighty-five percent parole disqualifier under NERA on the robbery conviction, to be served concurrently. On the drug conviction, defendant received a consecutive sentence of five years imprisonment.
On appeal, defendant raises three points for our consideration.
TWO TESTIMONIAL REFERENCES BY THE STATE'S CHIEF WITNESS, DETECTIVE ANTHONY MARRA, THAT THE DEFENDANT WAS REPRESENTED BY THE "PUBLIC DEFENDER" IMPLIED THAT THE DEFENDANT WAS POOR, DENIED THE DEFENDANT  HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL BECAUSE SUCH AN INFERENCE, ESPECIALLY WHEN THE DEFENDANT WAS CHARGED WITH ROBBERY AND CARJACKING, WAS GROSSLY PREJUDICIAL. (Partially Raised Below.)
THE COURT'S FAILURE TO DECLARE A MISTRIAL OR AT A MINIMUM TO VOIR DIRE THE JURY TO DETERMINE IF THE JURY WAS REASONABLY CERTAIN THAT FURTHER DELIBERATIONS WOULD NOT BE PRODUCTIVE, DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)
THE DEFENDANT'S AGGREGATE SENTENCE OF 28 YEARS WITH 23.8 YEARS OF PAROLE INELIGIBILITY FOR CARJACKING IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
After consideration of these arguments in light of the record and applicable legal standards, we affirm.
The State's evidence at trial revealed that on June 11, 2004, after exiting the Stop and Shop supermarket in Union, Leo Cahalan was accosted in the parking lot as he entered his car. Surveillance tapes from the scene revealed that his attacker was an African-American male wearing a hooded sweatshirt. Cahalan testified the man entered on the passenger side of his car, "produced a knife and thrust it toward [him]," and demanded cash and the car. Cahalan complied by giving the man $140 in cash and leaving the keys in the ignition before exiting the vehicle. The assailant drove off.
Cahalan gave a physical description of the carjacker to the police and he viewed two photographic arrays prepared by them. One array contained a photograph of defendant, but Cahalan could not identify any photo as that of the perpetrator. At trial, Cahalan could not identify defendant, though he did identify a knife, subsequently seized from defendant at the time of his arrest, as the one used by the attacker. Cahalan was asked if the State's next witness, Maynor McGuire, seated in the courtroom at the time, was his assailant. Cahalan responded that he was "almost positive" that McGuire was not.
McGuire, a self-described acquaintance of defendant, testified that two days after the carjacking, as he stood on a street corner in Newark, defendant drove up in Cahalan's car. Defendant claimed to have gotten the car from "a white man in Union." McGuire asked to borrow it, defendant agreed, and, after driving the vehicle for only fifteen or twenty minutes, McGuire was involved in a motor vehicle accident. The police responded, arrested him, and charged him with receiving stolen property. He pled guilty to the charge and received a three year probationary sentence.
McGuire acknowledged that he originally lied to the police and denied knowing the car was stolen. However, McGuire ultimately confessed and accompanied police to Newark where he pointed out defendant to Detective Anthony Marra of the Union Township Police Department.
Marra testified that defendant discarded three vials of cocaine from his pants pocket as the officer approached him on the street. Marra searched defendant and found a three-inch folding knife in his pocket, the same knife subsequently identified at trial by Cahalan. Marra also took a detailed statement from defendant in which he confessed to the crime and supplied numerous details that corroborated Cahalan's account and were consistent with what was seen in the surveillance tape from the supermarket.
Defendant testified at trial. He confirmed that Marra approached him as he stood on a street corner in Newark. Defendant admitted discarding the cocaine, but denied having anything to do with the carjacking. Defendant claimed that McGuire admitted to having carjacked Cahalan's vehicle, but, when he tried to tell that to Marra, the detective threatened him and claimed defendant was the actual thief. Defendant testified that he ultimately confessed to the crimes because that was what the police wanted to hear.
The defense rested after defendant's testimony. Following summations and the jury charge, deliberations began. Ultimately, the jury returned guilty verdicts on all charges.
Defendant's first point concerns a brief portion of Marra's testimony wherein he identified defendant in the courtroom before the jury as "[t]hat gentleman sitting next to the public defender." Defense counsel immediately requested a sidebar conference. The judge offered to give an immediate curative instruction and asked defense counsel,
You want me to tell the jury that there are constitutional rights to an attorney and you are a member of the Public Defender's office, and appointed to represent this man?
Defense counsel said, "yes."
The trial judge then suggested that defense counsel "[t]alk to [his] client about that . . . ." Defense counsel did and reported back to the judge, "I have spoken to my client and he would agree." The judge then gave the following instruction to the jurors.
Under our system of law, everyone, of course, is entitled to good representation at a criminal trial and we, therefore, have the Office of the Public Defender, who represents many people. And, in this case, [defense counsel] is indeed representing his client.
The assistant prosecutor resumed the questioning of Marra by asking once again if he could identify defendant. Marra again answered, "That gentleman sitting next to the public defender." There was no further objection and the testimony continued. Defense counsel never requested any other curative instruction from the judge.
Defendant argues that these references to his attorney being a public defender implied that he was poor and unable to afford his own lawyer. He claims particular prejudice given the nature of the crimes charged -- carjacking and robbery -- where the logical motive was pecuniary gain. The State concedes that Marra's answers were inappropriate and that the judge's curative instruction missed the mark. It argues, however, that the references were so brief and fleeting that they did not prejudice defendant in any way.
We agree with defendant that the judge's instruction was insufficient. Instead of merely telling the jurors that defendant had a constitutional right to representation and that the public defender represented many people, he should have clearly advised the jury that they could not draw any inference whatsoever from the fact that the defendant was represented by a public defender.
However, since defense counsel never objected to the curative charge, or Marra's repeated answer, we must determine whether the alleged error was "plain error" that is, was the error "clearly capable of bringing about an unjust result?" R. 1:7-2; 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)).
In State v. Martini, 131 N.J. 176, 265 (1993), the Supreme Court considered whether the inadvertent remark of a defense expert that the case was a "Public Defender case," to which there was no objection, amounted to plain error. Noting the testimony was "brief and non-responsive," and that defense counsel's failure to object might "well reflect his desire not to highlight the topic," the Court determined any prejudice that resulted was "surely incapable of bringing about an unjust result." Id. at 266-67.
There is nothing in the record to suggest that the prosecutor intentionally sought to elicit this information from Marra or that the State implied defendant's representation by the public defender meant he was impecunious and thus motivated to commit the crimes. Moreover, after having heard the judge's charge, we understand how Marra might have assumed it was appropriate for him to repeat his original answer.
Certainly nothing in the charge suggested that the public defender's office represented only indigent defendants. Since defense counsel never objected to the charge as given, we can assume that he either approved of the judge's charge, particularly since he discussed it with defendant beforehand, or strategically chose not to highlight the information. In any event, having chosen that course, defense counsel foreclosed any opportunity for the judge to correct the situation. In sum, we are convinced that the fleeting reference to the public defender's representation of defendant could not have brought about an unjust result.
Consideration of defendant's next argument requires us to detail the procedural history of the jury's deliberations. Jury deliberations began at 1:30 p.m. on September 14, 2005, and during that afternoon, the jurors sent out two notes for the judge to answer prior to their dismissal at 4:30 p.m. They commenced their deliberations on September 15 at 9:00 a.m., but, within an hour, forwarded another note to the judge requesting the read back of defendant's testimony and his statement to the police. That took most of the morning and deliberations did not re-commence until 12:23 p.m.
Within fifteen minutes, the jury sent out another note which read, "We are undecided on four of the five counts. We believe further deliberations will not change this fact." The judge advised the trial attorneys,
Given the nature of the charge and the time we put into this, I'm not prepared to accept that yet. I will tell them the definition of reasonable doubt and direct them to resume their work.
Both counsel answered in the negative. The judge then redefined reasonable doubt and charged the jurors generally in accordance with the charge approved in State v. Czachor, 82 N.J. 392, 405 n.4 (1980). Neither trial counsel objected.
The jury deliberated the balance of the day, was released at approximately 4:00 p.m., and returned again on September 16. It is unclear from the record how long deliberations continued, but at some point on the third day the jury returned its guilty verdicts.
Defendant does not challenge the content of the additional charge, but, rather argues that the judge should have declared a mistrial when the jury initially indicated that it was unable to decide four of the five charges. Alternatively, defendant argues that the judge should have voir dired the foreman and determined whether continued deliberations would be fruitful. Since there was no objection to the procedure utilized, we must first determine whether any error was committed, and if so whether the failure to take either course suggested by defendant was plain error.
In reviewing a decision by the judge to continue jury deliberations, we have noted,
The trial court is vested with "broad discretionary authority" to declare a mistrial due to a deadlocked jury and its decision to do so may be reversed only for an abuse of discretion. [State v. Paige, 256 N.J. Super. 362, 381 (App. Div.), certif. denied, 130 N.J. 17 (1992)(quoting State v. Roach, 222 N.J. Super. 122, 129 (App. Div. 1987), certif. denied, 110 N.J. 317 (1988)).]
We think it is clear that the trial judge did not abuse his discretion in this case.
The jury deliberated for approximately four hours before requesting the substantial read back of important testimony. Within a very short time of completing the read back, it sent out the note indicating that it was undecided. Given the nature of the case, the amount of evidence, and the conflicts of credibility that the jury needed to resolve, the amount of time actually spent in deliberations to that point was not significant. Furthermore, it is clear from the many hours of continued deliberations that occurred after the additional charge was given, the instructions did not have a coercive effect upon the jury. Czachor, supra, 82 N.J. at 403.
Lastly, we reject defendant's alternative argument that the judge should have inquired of the foreman whether the jury was in fact deadlocked before giving the instruction. As our Supreme Court recently noted, "[E]ven a general inquiry by the judge about deliberations may present the possibility of coercion." State v. Figueroa, 190 N.J. 219, 238 (2007). The judge did not mistakenly exercise his discretion by immediately giving the jurors the additional charge.
Defendant challenges the sentence imposed on the carjacking verdict as excessive. Citing our opinion in State v. Zadoyan, 290 N.J. Super. 280 (App. Div. 1996), defendant argues that since no actual force was used against Cahalan and he was not injured in the incident, the judge erred by imposing a sentence only two years shy of the statutory maximum for the offense. Defendant further argues that in light of the mandatory application of NERA to his sentence, the twenty-eight year sentence and the nearly twenty-four years he must serve before parole eligibility resulted from a mistaken exercise of the trial judge's discretion.
In Zadoyan, we concluded that because of the unique sentencing parameters that apply to a carjacking conviction pursuant to N.J.S.A. 2C:15-2, "trial courts must look to the alternative elements of carjacking to guide their sentencing discretion, in conjunction with the aggravating and mitigating factors applicable to all sentencing decisions." 290 N.J. Super. at 291. We noted that the four elements that elevated the unlawful taking of an automobile to a carjacking should inform the decision based upon the relative degree of seriousness of the additional conduct.
Element a(1) is the most serious additional fact: the infliction of bodily injury or the use of force. Element a(4), operation of the vehicle with the lawful occupant remaining in it, ordinarily would be the least serious carjacking. Elements a(2) and a(3), the threat of bodily injury or the commission or threat to commit a first or second degree crime, are of intermediate concern. [Ibid.]
"[T]he high end of the sentencing range [should] be reserved for the carjackings that involve the most serious accompanying elements." Id. at 292.
In State v. Berardi, 369 N.J. Super. 445, 452 (App. Div. 2004), certif. granted, 183 N.J. 213, appeal dismissed, 185 N.J. 250 (2005), we considered Zadoyan's sentencing paradigm in light of the passage of NERA and its mandatory application to all carjacking cases. We stated that
[W]ith a heightened sentencing impact as the consequence of the adoption of NERA and its now-mandatory application to carjacking cases, trial courts must apply even more greatly refined sensitivity respecting the categorization of carjacking cases and its interplay with sentencing considerations under Zadoyan. [Id. at 452-53.]
With these general guidelines in mind, we now consider the sentence imposed in this case.
The trial judge found aggravating factors three, six, and nine existed,*fn2 and found no mitigating factors. The judge noted that defendant had already been convicted of first-degree robbery with a gun while still a juvenile, and had already served eight to nine years in prison. He also noted defendant was paroled in 2001, yet only three and one-half years later committed another serious offense while armed with a knife. Lastly, the judge noted Cahalan's age at the time of the attack, nearly eighty, and that defendant "terrorized" him.
The judge told the jury to consider the elements of carjacking under both N.J.S.A. 2C:15-2a(1) and (a)(2); if the State had met its burden of proof, a conviction could lie under either subsection. There was no specific interrogatory propounded to determine upon what theory the conviction rested. Nevertheless, we conclude under the circumstances presented in this particular case, it should not matter for purposes of sentence whether the conviction was based upon a(1) or a(2), any implication from the above-quoted language of Zadoyan to the contrary notwithstanding.
While defendant claims that he did not use force or inflict bodily injury upon Cahalan, it was the victim's testimony that defendant held a knife three to four inches from his chest as he demanded his money and his car. Under these circumstances, we fail to discern any meaningful difference in the nature of the danger posed simply because bodily injury did not result and no physical force was actually used. In fact, in our opinion, the immediate threat of deadly force through the use of a weapon serves to place this carjacking at "the high end of the sentencing range . . . reserved for [those] carjackings that involve the most serious accompanying elements." Zadoyan, supra, 290 N.J. Super. at 292. Therefore, contrary to defendant's contention that the middle of the permissible range of sentences -- twenty years -- was more appropriate, we conclude that nothing in our opinion in Zadoyan, or the carjacking statute itself, prohibits a more severe sentence.
As a result, we need not consider whether Zadoyan's sentencing paradigm has continued vitality. We note, however, that the legislature created only one crime, carjacking, and only one range of sentences, from ten to thirty years. Since the Supreme Court's holding in State v. Natale, 184 N.J. 458, 487 (2005), presumptive sentences have been eliminated for all crimes. The appropriate sentence for any particular violation of the carjacking statute, therefore, must be based solely upon the weighing of the Code's aggravating and mitigating factors and the sound exercise of the judge's discretion. As the Natale court noted, "[R]eason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. Id. at 488. We have no quarrel with the holding in Zadoyan to the extent that it stands for the proposition that consideration of the "seriousness of the offense" as expressed in the various elements of the carjacking statute is a valid aggravating factor in any sentencing decision.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). A sentence that is "within the statutory guidelines 'may strike us as a harsh sentence, but that is a consequence of the legislative scheme and not a clear error of judgment by the trial court.'" Ibid. (quoting State v. Dunbar, 108 N.J. 80, 83 (1987)).
Here, the aggravating factors found by the trial judge were amply supported by the record. Defendant was thirty-one years old at the time of sentencing and had already spent almost nine years in State prison for an armed robbery with a gun committed in 1989. Upon his parole in 2001, he was arrested on three separate occasions for narcotics offenses which resulted in disorderly persons convictions. In June 2004, he committed these crimes using a knife. In short, nearly one third of his life had been spent incarcerated for serious crimes of violence. We cannot conclude, therefore, that the sentence imposed was the result of a mistaken exercise of the trial judge's discretion.