November 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD BRENT, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Lisa and Lihotz.
Defendant, Richard Brent, Jr., and his co-defendant, Marion C. Darby, were charged in a five-count indictment as follows:
(1) second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; (2) first-degree armed robbery, N.J.S.A. 2C:15-1; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5b; (4) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and (5) fourth-degree*fn1 possession of a defaced firearm, N.J.S.A. 2C:39-9e. Darby was acquitted of all five charges. Defendant was acquitted of count one but convicted of the remaining charges. After merging counts three and four with count two, the judge imposed sentence on count two of ten years imprisonment subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count five, the judge sentenced defendant to eighteen months imprisonment, to be served concurrently with count two. The judge also imposed appropriate mandatory monetary assessments.
On appeal, defendant argues:
LOPEZ'S OUT-OF-COURT, ONE-MAN SHOW UP IDENTIFICATION OF BRENT TOGETHER WITH SUGGESTIVE COMMENTS BY THE POLICE TO LOPEZ WHO SPOKE VERY LITTLE ENGLISH AND HAD NO INTERPRETER WERE UNDULY SUGGESTIVE AND VIOLATED BRENT'S FEDERAL AND STATE DUE PROCESS RIGHTS THEREBY ALSO TAINTING LOPEZ'S IN-COURT IDENTIFICATION OF BRENT; THUS, THE COURT REVERSIBLY ERRED IN PERMITTING LOPEZ'S TESTIMONY AS TO HIS TAINTED OUT-OF-COURT AND IN-COURT IDENTIFICATION OF BRENT BEFORE THE JURY. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art.I, Para. 1 and 10.
THE COURT REVERSIBLY ERRED IN ACCEPTING BRENT'S AFFIDAVIT, EXHIBIT D-1, INTO EVIDENCE BECAUSE THE STATE FAILED TO CARRY ITS BURDEN OF DEMONSTRATING THE VOLUNTARINESS OF THAT ADMISSION WHICH BRENT SIGNED WHILE IN PRISON. (U.S. Const. Amends. V, VI & XIV; N.J. Const. (1947) Art. I, Para., 10).
THE COURT REVERSIBLY ERRED IN PERMITTING THE PROSECUTOR IN SUMMATION TO ARGUE WITHOUT SUPPORTING EVIDENCE IN THE RECORD THAT THE $79 SEIZED FROM BRENT UPON HIS ARREST WAS IN THE SAME DENOMINATIONS AS THE MONEY TAKEN FROM THE STORE, ESPECIALLY IN VIEW OF THE FACT THAT DEFENSE COUNSEL IN HIS SUMMATION WAS HELD STRICTLY TO WHAT THE COURT PERCEIVED WAS THE LIMIT OF THE RECORD EVIDENCE ON THE ISSUE OF WHETHER DARBY COERCED BRENT TO SIGN THE ADMISSION IN THE AFFIDAVIT. (U.S. Const. Amends VI & IV; N.J. Const. (1947) Art.I, Para. 1 & 10).
THE COURT IN VIOLATION OF N.J.R.E. 403 REVERSIBLY ERRED IN INCLUDING COLOR PHOTOGRAPHS TAKEN OF BRENT AFTER HIS ARREST, EXHIBITS 18 THROUGH 22, BECAUSE THE NONEXISTENT PROBATIVE VALUE OF THOSE PHOTOGRAPHS WAS SUBSTANTIALLY OUTWEIGHED BY THEIR EXTREME PREJUDICE TO BRENT WHO BECAUSE OF PROBLEMS IN OBTAINING CLOTHING APPEARED BEFORE THE JURY INITIALLY IN THE SAME CLOTHES HE WAS WEARING WHEN THE PICTURES WERE TAKEN. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I para 10.
BRENT'S TEN-YEAR PRISON TERM WITH AN 85% NERA PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.
We reject these arguments and affirm.
On November 14, 2004, Quilbio Marquez owned the K & M Deli in New Brunswick. Orbe Lopez was his employee. At about 9:57 that night, the men were preparing to close the store. Lopez was at the register. Marquez was nearby counting the day's receipts. Marquez had placed in the register the next day's startup money, consisting of about $80 in currency and $20 in change.
Darby entered the store and purchased a pack of chewing gum from Lopez. Darby paid for the gum, but walked out of the store without taking his change. Darby was wearing a red jacket. Marquez and Lopez had seen Darby in the store on a couple of prior occasions. There were no other customers in the store at that time.
Immediately after Darby left the store, defendant entered. He was wearing a camouflage jacket. He pointed a revolver at Lopez demanding money. After defendant "pulled back the hammer," Marquez instructed Lopez to give defendant the money in the register. Because of the way Marquez was positioned, defendant apparently did not see the larger amount of money that Marquez was handling. Lopez handed defendant the currency from the register, and after being in the store for about forty seconds to one minute, defendant left.
At Marquez's direction, Lopez pushed the emergency button behind the counter to notify the police. Marquez went to the door to see where defendant went so he could inform the authorities. Marquez saw defendant and Darby run across the street, and he observed their direction of travel. A patrolling New Brunswick police officer, Raymond Hansen, happened by. Marquez flagged him down and informed him he had just been robbed by two black men. He told Hansen he saw the men run from the store and turn right on Seaman Street.
Hansen directed Marquez to get into the car to help search for them. They drove down Seaman Street, and Marquez spotted defendant and Darby standing on a porch trying to open a door. One man was wearing a red jacket and the other a camouflage jacket. Marquez yelled, "That's them, that's them." Hansen stopped the vehicle, and as he got out he saw defendant throw "a dark object from his right hand into the alley." Hansen recovered the object, which was a loaded black handgun with a brown handle. Marquez identified the gun as the one used in the robbery. Defendant and Darby were placed under arrest. A search of defendant revealed the presence on his person of $79 in currency, in denominations of four $10 bills, four $5 bills, and nineteen $1 bills. Defendant and Darby were transported to the police station.
Hansen drove Marquez back to the store. They picked up Lopez and proceeded to the station, where showup identification procedures of the two suspects were conducted. At 11:21 p.m., Lopez viewed Darby, who was wearing his red jacket, and positively identified him as the individual who came into the store and bought a pack of gum. At 11:24 p.m., Lopez separately viewed defendant, who was wearing his camouflage jacket, and positively identified him as the gunman.
After being advised of his Miranda*fn2 rights, defendant was questioned. He denied committing a robbery or going to a store. He said he was standing on a porch, waiting for a girl to give him a ride.
While in jail, defendant signed an affidavit to assist Darby in connection with Darby's bail application. The affidavit stated, "I, Richard Brent, said I needed something from the store, too, but my intentions was to rob the store. Marion Darby didn't have knowledge as to what I was doing." The affidavit was admitted in evidence at trial. The jail official who notarized it testified. He said defendant came to him alone with the affidavit, requesting that it be notarized, and signed it in his presence.
Neither defendant nor Darby testified at trial.
The judge conducted a Wade*fn3 hearing with respect to the outof-court identifications made by Marquez and Lopez. At the conclusion of the hearing dealing with Marquez, both defense counsel conceded there was nothing suggestive with respect to Marquez's identifications and there was no basis to bar evidence of them.
Defendant argues, however, that Lopez's out-of-court identification of him was unduly suggestive and should have been barred from evidence. Defendant argues that the police should not have conducted a one-man showup of defendant and an interpreter was not provided for Lopez during the identification procedure. According to defendant, there was no exigency requiring an immediate one-man showup. Further, defendant argues that Lopez perceived the police were asking him to confirm that the man they arrested for entering the store with a gun was defendant. At a minimum, defendant argues that the police should have utilized a full lineup for Lopez's identification of defendant and utilized neutral language with Lopez in explaining the procedure.
Detective John Selesky conducted the showup procedures. Selesky explained that he had been conducting such procedures for many years and uniformly explained them to witnesses in the same manner. He described it this way:
What we did was we explained to Mr. Lopez that we're about to show him two individuals one at a time. They may or may not be the people who he saw rob the store. He may not know them. He looked at them. We made sure we told him he needed to be a hundred percent positive on identification. [Emphasis added.]
After viewing each of the individuals, Lopez said he was certain that Darby was the man who purchased chewing gum and defendant was the gunman who robbed him. Selesky said Lopez had sufficient command of the English language to participate in the showup procedure. However, when Lopez later gave a formal statement, an interpreter was used.
At the Wade hearing (and later at trial), Lopez testified through an interpreter. He estimated that defendant was in the store and face-to-face with him for about one minute. The store was well lit with commercial fluorescent lighting. On direct examination at the Wade hearing, Lopez testified thusly:
Q: And it is my understanding that you were shown two individuals?
A: Yes. They took me to identify them through this two-way mirror to see if they were the same people.
Q: Prior to you making this identification what, if anything, did the police officers tell you?
A: No, they didn't say anything. Just that if I was able to identify the people that went to the store.
Q: Did you have any conversation with Mr. Marquez about these individuals before you made your identification?
A: No. All that we were talking about at that point is what had taken place. That was it.
Q: Were you able to make an identification at police headquarters?
Q: The man with the, who purchased the gum?
A: Yes, I identified him first.
Q: And then the man with the gun?
A: He was the second one.
Defendant argues, however, that Lopez's responses to some cross-examination questions create the impression that the police told him the men they were going to show him were in fact the men who came into the store. For example:
Q: Prior to bringing Mr. Darby into the other room for you to view was anything said to you by that police officer? For instance, did he say to you now we're going to show you a person that was involved in the crime?
A: Okay, they simply asked me if I wanted to, if I was willing to identify the people who had come in and I identified the person who had come to purchase the gum.
Q: The police prior to engaging in this procedure asked you if you would be willing to identify the people that had come into the store before?
A: They asked me, that they were going to show me the persons who had come in for what had happened and was I willing and I said yes.
Q: So prior to them bringing the first person Mr. Darby into the room you expected that the police were going to be bringing in the people that had been in the store earlier, correct?
A: I was in the room. They passed me first person forward to me. They asked me if it was him and I said yes.
But, defendant's attorney pressed further, resulting in the following colloquy:
Q: Prior to bringing that person in the room when they explained to you what you were going to be doing?
THE INTERPRETER: Could the interpreter have the question repeated? I'm sorry.
Q: Yes. Prior to engaging in this procedure before they brought Mr. Darby into the room for you to view did they explain to you what you were going to be doing?
A: They asked me if I was willing to identify the, identify the person who had come in.
Q: So prior to that person coming into the room the police actually told you that that's who they were bringing into the room, isn't that correct?
A: No. In reality the police told me nothing. I was the one who identified. I did that. [Emphasis added.]
Judge Gelade evaluated the testimony of Selesky and Lopez and sized up the credibility of those witnesses. He found:
I believe Officer Selesky, and I find he was corroborated by Mr. Lopez, that the two of them were alone in the room. That there was no interpreter at that time. I think it's clear from the totality of the testimony that the interpreter came later when the statement was taken. And I believe, I credit Officer Selesky's testimony that he told Mr. Lopez before the two defendants were brought in one at [a] time or demonstrated one at a time through the mirror that he was going to be asked to identify if these were the men who came into the store. That I credit Officer Selesky who's testified forthrightly. That he told the alleged victim Mr. Lopez that it was his choice of whether he could identify these men as the men who had been in the store and he told them that it was he and only he who had to be sure that he did so. I don't find the testimony of Mr. Lopez to be in any way in conflict with Detective Selesky's testimony. While there was a lot of cross-examination about exactly what he was told the answers clearly in context indicated that he was merely told they were bringing two men in for him to see if he could identify them as the people who were the ones who came into the store at the time. And in the cross-examination of the witness by [defendant's attorney] he was asked, the witness was asked what was said by the police officer and he said he was asked if he was willing to identify the person who came in. The police told me nothing. I was the one who identified them. I think that's consistent with what Officer Selesky said. I think that perhaps this translation from English to Spanish the witness may have glossed over the fact that he was identifying the two people who were brought in, but he never said that the police officer said these are the two people who robbed you, we're going to bring them in and you have to identify them. Nothing like that was said.
I find that the witness, both witnesses Selesky and Lopez, clearly the totality of the circumstances gave a scenario by which Lopez was asked if he could identify the people who came in and he was shown each of these two individuals and he clearly identified them.
The judge's factual findings that the police did not suggest to Lopez that the men they were showing him were indeed the perpetrators and did not prompt him to identify them as such are well supported by the record. State v. Johnson, 42 N.J. 146, 162 (1964). Based upon those findings, and considering Lopez's opportunity to view his assailant for an extended period of time at close range, the proximity in time between the event and the identification, and the certainty of Lopez's identification, the judge concluded that under the totality of the circumstances the identification was not impermissibly suggestive to result in a substantial likelihood of misidentification. The judge therefore ruled that Lopez's outof-court identification and his proposed in-court identification were admissible in evidence.
We find no error in the judge's determination. It is well recognized "that in criminal actions an eyewitness's identification may be the most crucial evidence." State v. Madison, 109 N.J. 223, 232 (1988). In order to balance the State's need to use eyewitness identification against the defendant's need to protect himself against potentially unreliable testimony, the trial court must engage in a two-step analysis to determine whether the evidence is admissible. Ibid. The court must first determine whether the identification procedure was impermissibly suggestive. Ibid. If so, the court must then decide whether the identification procedure resulted in a "'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)). This requires the court to focus on the reliability of the identification. Ibid. "The reliability determination is to be made from the totality of the circumstances adduced in the particular case." Id. at 233. Factors to consider include:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. [Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977).]
"If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Madison, supra, 109 N.J. at 232.
In State v. Herrera, 187 N.J. 493 (2006), the Court affirmed the use of showup identifications in circumstances where the identification was unduly suggestive, but nonetheless reliable. The Court acknowledged that one-on-one showups are inherently suggestive. Id. at 504. Under the facts of that case, the Court found that the procedure was elevated to the level of impermissible suggestiveness because the police informed the witness, a carjacking victim, that the person was found in his car and they wanted the witness to identify that person. Id. at 506. Thus, the Court stated:
We conclude that in combination with the suggestiveness inherent in a showup, the added comments by the police rendered the showup procedures in the out-of-court identification of defendant impermissibly suggestive. Those comments made by the police to the victim were inappropriate because they may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit. [Ibid. (footnote and citation omitted).]
That is not the situation here. Based upon substantial and credible evidence, Judge Gelade found that Lopez was dealt with in neutral terms and was not prompted in any way or furnished any information that would induce him to identify the individuals shown to him as his assailants even if he otherwise might have been uncertain they were the culprits. Thus, in this case, we are left with only the inherent suggestiveness which flows from the knowledge of the witness that the police are showing him individuals suspected of being the culprits. That is suggestive, but not impermissibly suggestive.
We further note that in Herrera, notwithstanding the impermissible suggestiveness, the Court sustained the admission in evidence of the out-of-court identification because, under the totality of the circumstances and in consideration of the Manson factors, the identification was nevertheless sufficiently reliable to allow its admissibility. Id. at 506-09. In the case before us, Judge Gelade rendered this alternative analysis:
Even if, even if there were impermissible suggestions about the two defendants at the time of the so-called show-up at police headquarters that would not change this Court's opinion. It does not rise to a level where it impinged under the totality of the circumstances as I've outlined them on the substantial likelihood of misidentification.
Because we sustain the judge's finding that there was no impermissible suggestiveness, it is not necessary for us to reach the second step in the analysis. However, we note our concurrence with the judge's alternative finding in that regard.
We next consider defendant's argument regarding the affidavit. Defendant argues that the State failed to provide testimony regarding the voluntariness of the statement he made in the affidavit, including whether the police were present when the statement was made and whether defendant was administered his Miranda rights. We find this argument unpersuasive.
There is nothing in the evidence to suggest that defendant prepared this affidavit in response to police interrogation. Indeed, his purpose was to provide assistance to his co-defendant regarding his bail application. In doing so, in addition to providing an exculpatory comment about Darby, defendant also made an inculpatory statement about himself. A statement offered against a party, which is the party's own statement, is admissible as an exception to the hearsay exclusionary rule. N.J.R.E. 803(b)(1). In criminal proceedings, the admissibility of a defendant's statement offered against the defendant is subject to N.J.R.E. 104(c). That rule, however, requires a preliminary hearing only where "by virtue of any rule of law" a preliminary determination as to admissibility is required. In this case, defendant did not request such a hearing, and the circumstances surrounding the signing of the affidavit suggest no legal requirement for a preliminary determination of admissibility.
And, the judge correctly instructed the jury that it should assess the affidavit's credibility and consider the circumstances and facts as to how the statement was made. His instruction was as follows:
There is for your consideration in this case a written statement, an affidavit allegedly made by the defendant Richard Brent. It is your function to determine whether or not that statement was actually made by the defendant and, if made, whether the statement or any portion of it is credible. The statement in this case is an affidavit which was signed by defendant Brent and allegedly brought by him to [a notary] who allegedly notarized it. In considering whether or not the statement is credible you should take into consideration the circumstances and facts as to how the statement was made as well as all other evidence in this case relating to this issue. If, after consideration of all of these factors you decide that the statement was not actually made or that the statement is not credible, then you must disregard the statement completely. If you find that the statement was made and that part . . . or all of the statement is credible, you may give whatever weight you think appropriate to that portion of the statement you find to be truthful and credible.
Accordingly, we find no error in the admission in evidence of the affidavit.
Defendant's arguments in Points III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We offer these brief comments.
The prosecutor's reference to the denominations making up the $79 found on defendant was supported by the evidence. Although, as defendant points out, there was no testimony by Marquez or Lopez about the specific denominations removed from the register, they did testify that about $80 was taken. Thus, the prosecutor's argument that the currency found on defendant, in the specific denominations described by Hansen, was "the same startup money that Lopez and Marquez talked about in [sic] this stand" suggested a reasonable inference that the jury could draw in matching up what was found on defendant and missing from the register.
With respect to the photographs, we reject defendant's argument that they had no probative value. Indeed, they corroborated the descriptions given by Marquez and Lopez of the perpetrators and the distinctive clothing they were wearing at the time of the crime. We also reject defendant's argument that the judge mistakenly exercised the broad discretion afforded trial judges in failing to bar relevant evidence on the grounds that its probative value is substantially outweighed by the risk of undue prejudice. See N.J.R.E. 403. Any potential prejudice here was indeed minimal, and we have no occasion to interfere with the judge's exercise of discretion in this regard.
Finally, we consider defendant's argument that his sentence was excessive. Although the judge found that the aggravating factors preponderated over the mitigating factors, he nevertheless imposed a bottom-of-the-range ten-year sentence for defendant's first-degree robbery conviction. The judge's findings regarding aggravating and mitigating factors are supported by the record, he did not apply incorrectly the sentencing guidelines enunciated in the Code of Criminal Justice, and the sentence imposed was not manifestly excessive or unduly punitive and did not constitute a mistaken exercise 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, 363-65 (1984). Defendant's suggestion that he should have been sentenced in the second-degree range is completely lacking in merit. Neither prong of the test prescribed by N.J.S.A. 2C:44-1f(2) is satisfied. See State v. Megargel, 143 N.J. 484 (1996). Indeed, defendant has not even suggested what circumstance would establish the second prong, that the interest of justice demands sentencing one degree lower.