November 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEPHEN SMITH, A/K/A WILLIAM STEWART, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Ind. No. 02-05-0660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Coburn, Fuentes and Chambers.
Defendant Stephen Smith was charged with robbery, a crime of the first-degree, in violation of N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; aggravated assault, a crime of the fourth- degree, in violation of N.J.S.A. 2C:12-1(b)(4) and N.J.S.A. 2C:2-6; possession of a weapon for an unlawful purpose, a crime of the second-degree, in violation of N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6; and unlawful possession of a weapon, a crime of the third-degree, in violation of N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6. A jury found him guilty of all counts on August 10, 2005. He was sentenced to imprisonment for a term of fourteen years subject to the eighty-five percent No Early Release Act period of parole ineligibility. N.J.S.A. 2C:43-7.2. He received a concurrent term of four years on his conviction for unlawful possession of a weapon, and his convictions for aggravated assault and possession of a weapon for an unlawful purpose were merged into the robbery count. He received the requisite penalties and fines. He was also sentenced to a term of five years of parole supervision upon his release from prison.
The convictions arose out of a robbery that took place on December 20, 2001, at around 12:15 p.m., on Main Street in Clifton. At that time, Argenis Reinoso, the victim of the robbery, testified that he was walking down the street when a silver Ford Probe pulled up. The passenger jumped out and asked him for directions. After responding to the inquiry, the victim began to walk away when he was grabbed from behind by the driver of the car, whom the victim identified in court as defendant. Defendant screamed "police" and slammed the victim against the car. The passenger held a gun to the victim's ribs, while defendant searched his pockets. The robbers took from the victim thirty dollars, his mortgage check, his wallet, and a gold chain with a cross, and then fled in the car.
Later that day the silver Ford Probe was found crashed into a utility pole with no occupants inside. A loaded handgun and the gold chain with the cross were found inside the vehicle. Defendant was the registered owner of the vehicle. At the police station, the victim saw the vehicle being towed in and identified it as the one involved in the robbery. He also identified co-defendant, Michael Hall,*fn1 who had been apprehended, as the passenger with the gun. In addition, the victim identified the gun and his chain with the cross. A number of days later the police came to the victim's house to show him photographs, and he was able to identify the defendant in one of the photographs.
The defense contended that defendant was not a participant in the robbery and that the victim misidentified him. Co-defendant Michael Hall, who testified for the State, said that he did not know defendant and stated that a John Walker was with him in the car on the day in question. The defense sought to establish through the testimony of defendant's mother that his car had been stolen on December 20, 2001, and that the theft was reported to the police that day. However, police records indicated that the police were told the next day, on December 21, 2001, at 9:13 a.m. that the vehicle had been stolen at 12:15 p.m. the previous day. Rejecting this defense, the jury found defendant guilty on all charges.
The defendant raises the following issues in this appeal in the brief submitted by his counsel:
THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY ON ACCOMPLICE LIABILITY. (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW.)
A. THE TRIAL COURT IMPROPERLY LINKED THE CRIMINAL LIABILITY OF THE DEFENDANT WITH THE CRIMINAL LIABILITY OF CO-DEFENDANT HALL. (RAISED IN PART BELOW.)
B. THE TRIAL COURT FAILED TO ADEQUATELY RELATE THE LAW OF ACCOMPLICE LIABILITY TO THE FACTS OF THE CASE. (NOT RAISED BELOW.) POINT II
THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT OR DECLARING A MISTRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT IN THE GRAND JURY.
A. THE PROSECUTOR FAILED TO PRESENT "CLEARLY EXCULPATORY" EVIDENCE TO THE GRAND JURY.
B. THE PROSECUTOR PRESENTED A DISTORTED VERSION OF THE FACTS TO THE GRAND JURY.
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE OUT-OF-COURT IDENTIFICATION BY MR. REINOSO WAS UNRELIABLE AND TAINTED HIS SUBSEQUENT IN-COURT IDENTIFICATION.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
PERMITTING MR. REINOSO TO MAKE A STATEMENT TO THE JURY CORRECTING HIS TRIAL TESTIMONY DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE WITNESS'S CREDIBILITY.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL AFTER DETECTIVE VANDERVLIET TESTIFIED THAT THE DEFENDANT HAD AN ALIAS AND SUGGESTED THAT THE DEFENDANT WAS A FUGITIVE WHO HAD OTHER CRIMINAL CHARGES PENDING. (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW.)
A. DETECTIVE VANDERVLIET'S TESTIMONY WAS INTENTIONAL AND RESULTED IN PER SE PREJUDICE.
B. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO ISSUE A CURATIVE INSTRUCTION SUA SPONTE. (NOT RAISED BELOW.)
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR IN SUMMATION. (NOT RAISED BELOW.)
A. THE PROSECUTOR EXPRESSED PERSONAL OPINIONS IN HER SUMMATION THAT IMPROPERLY APPEALED TO THE EMOTIONS OF THE JURY. (NOT RAISED BELOW.)
B. COMMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE BASED ON TESTIMONY THAT WAS STRICKEN FROM THE RECORD. (NOT RAISED BELOW.)
IMPOSITION OF THE FOURTEEN YEAR BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR FIRST-DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND IS AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE AGGRAVATING FACTORS PRESENT CANNOT SUPPORT THE IMPOSITION OF A SENTENCE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM TEN YEAR SENTENCE FOR A FIRST-DEGREE CRIME.
PLAIN ERROR OCCURRED WHEN CO-DEFENDANT HALL TESTIFIED AS A STATE'S WITNESS DRESSED IN PRISON GARB AND SHACKLED. (NOT RAISED BELOW.)
Defendant has also submitted a pro se brief raising the following additional points:
THE SENTENCING COURT APPEARS TO HAVE IMPERMISSIBLY DOUBLE-COUNTED AGGRAVATING FACTORS IN FIXING THE TERM OF CONFINEMENT.
THE SENTENCE IMPOSED EXCEEDS THAT AUTHORIZED BY THE JURY'S VERDICT AND OFFENDS THE SIXTH AND FOURTEENTH AMENDMENTS.
Defendant contends that the trial court erred in failing to provide a so-called Bielkiewicz charge, State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993), that would have expressly advised the jury that defendant could be found guilty of second-degree robbery as an accomplice even though Hall, the principal, was guilty of armed robbery. Indeed, a principal may be found to have committed an armed robbery, yet the accomplice may be found guilty of only a robbery. State v. White, 98 N.J. 122, 130 (1984). However, where there is no evidence that the principal and accomplice acted with a different purpose, the Bielkiewicz charge is not necessary. State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd, 162 N.J. 580 (2000).
In this case, as in Oliver, the prime issue was whether defendant was a participant in the crime, not his state of mind. Based on the victim's description of the robbery placing Hall, defendant and the victim in such close physical proximity, if indeed, defendant was the passenger identified by the victim, he would have been aware of the presence of the gun. In addition, the jury instructions expressly distinguished the first-degree armed robbery from the second-degree robbery when discussing the crime of robbery.
Since the failure to provide a Bielkiewicz charge was not raised before the trial judge, to warrant reversal, defendant must show that the exclusion of this language in the charge constitutes plain error, that is, that the error was "clearly capable of producing an unjust result." R. 2:10-2. Due to the specific facts in this case, we see no error here and certainly no plain error.
Defendant contends that the indictment should have been dismissed for prosecutorial misconduct because the prosecutor failed to advise the grand jury that Hall, who admittedly participated in the robbery, stated that a person named "John" was the other person involved in the robbery and not defendant. Procedurally, this argument is waived because it was not raised prior to trial pursuant to R. 3:10-2(c). While the rule allows the court to grant relief from the waiver for "good cause," such good cause is not present here. The prosecutor must present exculpatory evidence to the grand jury only if the evidence directly negates guilt and is clearly exculpatory. State v. Hogan, 144 N.J. 216, 237 (1996). Due to credibility issues, a co-defendant's statement exonerating a defendant is not clearly exculpatory and need not be presented to the grand jury. See State v. Evans, 352 N.J. Super. 178, 194-199 (Law Div. 2001).
Defendant contends that the victim's out-of-court identification of defendant was unduly suggestive and tainted his in-court identification of defendant. The trial court conducted a Wade hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967), and found the out-of-court identification admissible.
When determining the admissibility of an eyewitness's identification, the trial court must first decide whether the identification procedure was "impermissibly suggestive" and if so, whether it caused a "very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988). The focus is on the reliability of the identification, after looking at the totality of the circumstances in the case. Ibid. The findings of the trial judge in this analysis are entitled to great weight. State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003).
Here, Detective Vandervliet presented to the victim at the victim's home an array of photographs of six individuals with appearances similar to defendant. From this array, the victim identified defendant. Even though the victim identified defendant when he saw the fifth picture, the detective went on to show him the last picture, and the victim continued to identify defendant in the fifth picture.
Defendant argues that the detective should not have conducted the identification procedure because he was the detective on the case and the identification should have been conducted in the more formal setting of the police station. Giving due weight to the decision of the trial judge, we find nothing impermissibly suggestive in the procedure here that would cause a "very substantial likelihood of irreparable misidentification" under the circumstances of this case.
The defense also contends that the court lent its weight to the credibility of the victim's testimony when the court provided the victim with an opportunity to correct obviously impeachable testimony. The victim's identification of defendant was key testimony in the case since the defense denied defendant's involvement in the robbery. On direct examination, the victim testified that the passenger, not defendant, had a scar on his face. The victim then testified on cross-examination, that the defendant had a scar on his face. Indeed in court, the victim was allowed to view defendant and testified that defendant did have the scar. In fact, it appears from the record that defendant has no scar on his face, and defense counsel sought to have the jury view defendant in order to observe that he had no scar. At this point, the court took a recess. After discussion with counsel and despite objections of defense counsel, the court then explained to the jury that the witness needed to correct his testimony, and allowed the witness to explain his previous answer. The jury then viewed defendant's face.
By allowing the witness to correct his testimony on cross-examination, the court deviated from the usual procedure which would have required the State to rehabilitate the witness on redirect. However, a court is allowed some leeway in exercising control over the questioning of witnesses. N.J.R.E. 611(a). Putting this circumstance in the context of the impartiality demonstrated by the judge throughout the trial, we find no error since the procedure followed here fell within the trial judge's discretion and resulted in no prejudice.
Defendant contends that his motion for a mistrial should have been granted due to testimony by Detective Vandervliet that defendant had an alias and testimony suggesting that defendant was a fugitive from other criminal charges.
Detective Vandervliet's statement that "I charged Mr. William Stewart, also known as Stephen Smith, with robbery; prepared a warrant; and then I requested the assistance of the FBI Violent Crimes Fugitive Task Force" was not an error of the magnitude that requires a mistrial. The reference to defendant's alias was fleeting. While generally a defendant's alias must be kept secret from the jury, testimony as to an alias will not warrant reversal unless a "tangible form of prejudice is demonstrated." State v. Salaam, 225 N.J. Super. 66, 73, 75-76 (judge's reference to defendant's alias three times did not warrant reversal). No such showing has been made here. Further, the court had offered a curative charge which defense counsel rejected in order not to highlight the issue.
Detective Vandervliet testified that defendant was arrested on January 3, 2002, and that defendant was charged with this offense on January 11, 2002. Defense counsel moved for a mistrial on the basis that this testimony improperly advised the jury that defendant was wanted on other offenses that resulted in his arrest on January 3, 2002. That possible inference was negated when the detective clarified his testimony stating that defendant was not arrested for the robbery until January 11, 2007. Accordingly, a jury listening to his testimony would not reasonably infer that a warrant was outstanding for defendant on some other charge.
Defendant contends that his right to a fair trial was infringed because the State's witness, Michael Hall, the other participant in the robbery, testified while wearing his prison garb and in leg shackles. An incarcerated witness who testifies for the defense in court should not wear prison clothing nor testify while restrained unless necessary for courtroom security and the "justification for restraints . . . outweigh[s] the risk of prejudice." State v. Artwell, 177 N.J. 526, 537-38 (2003). Otherwise, those circumstances undermine the witness's credibility and suggest the defendant's guilt by association, requiring reversal. Ibid. This same rule applies to the State's witnesses who are incarcerated. State v. Russell, 384 N.J. Super. 586, 591-600 (App. Div. 2006).
No error occurred here. As the trial judge stated, the prisoner wore a khaki shirt that did not look like prison garb. Further, Hall was already seated in the witness box when the jury entered, so that the jury did not see him shackled, and his bracelet had been removed. Finally, the jurors knew that Hall had pled guilty to the robbery, so his criminal record for that offense was already known to them.
Defendant argues that certain statements in the prosecutor's summation were improper and denied him a fair trial. To be grounds for a reversal, the prosecutor's misconduct in a closing argument must be so egregious as to deprive defendant of a fair trial. State v. Frost, 158 N.J. 76, 83-84 (1999).
In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred."
Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. [Id. at 83 (quoting State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993) (citations omitted).]
When challenging the credibility of the testimony of defendant's mother that defendant had called from a pay phone to report his vehicle stolen, the prosecutor stated that if her car had been robbed outside a convenience store she would have gone inside the store and used the store's phone. To refute the argument that the messy condition of defendant's car when it was recovered supported the conclusion that it had been stolen, the prosecutor stated: "I am not the neatest person, quite honestly. Stuff is just strewn about in my car. It does not mean my car was stolen." While the prosecutor's arguments should have been framed in terms of a hypothetical person rather than herself, in the context of this case, these statements can be perceived as nothing more than argument, and do not warrant a reversal. See State v. Lopez, 359 N.J. Super. 222, 239-40 (App. Div.) certif. granted in part, State v. Garcia, 177 N.J. 576, app. dismissed, 178 N.J. 372 (2003) (prosecutor's statement about her personal habits, namely, "I know every single thing in my toiletry drawer" were improper, but not so egregious as to deprive defendants of their right to a fair trial).
The prosecutor also stated in her summation that the victim "sat on that stand losing pay hour by hour and he [defense counsel] got right up in his face." This statement was improper. The court had sustained the defense's objection to the victim's testimony that he was not being paid by his employer for the time he spent testifying. Once again defense counsel did not object. While the credibility of the victim and the accuracy of his observations and recollection were at issue in the case, the question of whether or not he was being paid by employer when testifying did not sufficiently weigh on those issues to deprive the defendant of a fair trial.
The failure of defense counsel to object to the prosecutor's statements further suggests that in the context of the trial, the statements were not prejudicial. The failure to object also deprives the trial court of an opportunity to provide curative instructions. State v. Frost, supra, 158 N.J. at 84.
With respect to the sentence, defendant contends that the aggravating factors cannot support the fourteen-year custodial term on his conviction for first-degree robbery and that the sentence was therefore manifestly excessive and an abuse of discretion.
We are required to make a "careful and vigorous" review of the sentence, but we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). Our role is to ensure that the correct sentencing guidelines have been followed, that the aggravating and mitigating factors found by the sentencing court are based upon competent and credible evidence, that the findings of fact that were made in the sentencing process are based upon substantial evidence, and that the sentence is not so "unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984).
Here the trial court found three aggravating factors; namely, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court found excessive hardship as the single mitigating factor, N.J.S.A. 2C:44-1(b)(11), and determined that the aggravating factors outweighed the mitigating factors. This sentence fell well within the judge's discretion. After a careful review of the record, we find nothing about this sentence that shocks the judicial conscience.
We find that the remainder of the arguments raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).