December 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 05-08-3271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Lintner and Parrillo.
Following a jury trial, defendant Jermaine Smith was convicted of first-degree carjacking, N.J.S.A. 2C:15-2, and first-degree armed robbery, N.J.S.A. 2C:15-1.*fn1 The court merged the armed robbery conviction into the carjacking conviction, imposing for that crime a term of twenty-eight years with an 85% parole disqualifier. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on May 10, 2005, at about 2:00 a.m., Yang Gui Ren closed his Chinese restaurant in Camden, and as he entered his black 1998 Honda Passport, saw a young African-American male, later identified as defendant, rushing up to the left side of his vehicle. The man had "something black in his hand, . . . like a gun [that was] pointed at [Ren]" and told Ren to exit the vehicle. Ren hid the day's profits, $700, in the car door when defendant broke the car window with the object he was holding and forced Ren to exit the vehicle. Ren "saw the gun . . . . [and t]he man h[e]ld the gun with both of his hands and at that time [Ren] was very scared." Ren asked defendant if he needed money and then he handed defendant his wallet with twelve one-dollar bills and his driver's license identification. Defendant then told Ren to turn around as he drove off with Ren's car. Ren immediately called the police on his cell phone.
The encounter with the assailant lasted about five minutes. At the time, the area was illuminated by lighting from Ren's restaurant and a nearby street lamp, which enabled Ren to see defendant's face, as he was only two-and-one-half feet away. No one else was in the vicinity.
Camden Police Officer Daniel Torres responded to Ren's call at about 2:20 a.m. Upon arrival, Torres confronted a "[v]ery nervous and sh[aken] up" Ren, who communicated with "a little bit of English" and used "hand signals" to indicate that the suspect who took his car was a black male, approximately five feet, seven inches tall, and wearing a dark black shirt and dark jeans. Ren gave Torres his 1998 Honda Passport's paperwork, including its make, model, year, color and New Jersey license plate number. Using hand gestures, Ren told Torres that the suspect took his vehicle by use of "some type" of large, black gun. Torres immediately broadcast a description of both the suspect and the stolen vehicle, and Camden Sergeant Anthony Moffa located defendant in the stolen vehicle within fifteen minutes.
From Ren's restaurant, Officer Torres drove Ren approximately five blocks to the suspect's location at Morgan Village Middle School and arrived within minutes as Sergeant Moffa was "pulling . . . [and] handcuffing" defendant out of Ren's stolen vehicle. According to Torres, as they exited the vehicle, Ren pointed towards defendant, indicated "that's the suspect" who stole his car, and without prompting, told Torres, "Yeah, yeah, yeah. Him, him."
Ren identified defendant from approximately twenty feet away. The lighting was "clear" and "pretty good," since the school's outside lights were on with spotlights facing towards the school. After the identification, Sergeant Moffa shined a light on defendant and Ren kept nodding his head. After defendant was arrested, a quick pat-down search for weapons uncovered the key to Ren's stolen vehicle in defendant's right-hand pocket. Then, as defendant was escorted to a patrol vehicle, Ren's wallet, including Ren's driver's license identification, fell out of defendant's right pant leg. As defendant was placed into Sergeant Moffa's patrol car, Ren's vehicle became "engulfed in flames."
Ren's version of his out-of-court identification differed somewhat from Officer Torres' account in that Ren said he identified defendant at the police station and not in the vicinity of the crime scene. According to Ren, when he arrived at the location where his car was found, he "saw a lot of police officers;" "[t]he police officer said that they already arrest[ed] the [suspect;]" his "car was on fire" at that time;*fn2 and he did not see the suspect who stole his car. Within minutes, firefighters arrived and extinguished the fire. Thereafter, Ren accompanied the officers to the police station where he immediately recognized defendant. According to Ren, he identified defendant as the carjacker without even knowing the man had been arrested for that very offense. At the time, defendant was wearing a dark T-shirt and dark jeans that Ren had earlier described to the police. Ren identified defendant in court as well, adding at time of trial: "I think I recognize him. The time is so long ago." No gun was ever recovered.
On appeal, defendant raises the following issues:
I. THE "SHOW-UP" PROCEDURE BY WHICH DEFENDANT WAS IDENTIFIED WAS BOTH IMPERMISSIBLY SUGGESTIVE AND LIKELY TO RESULT IN MISIDENTIFICATION, AND SHOULD THEREFORE HAVE BEEN EXCLUDED.
II. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND OF A FAIR TRIAL BY HIS ATTORNEY'S REFERENCE DURING SUMMATION TO THE SEVERED "CERTAIN PERSONS" WEAPONS CHARGE.
III. THE 28-YEAR TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
We address these issues in the order raised.
Defendant contends that the trial court erred in not suppressing the out-of-court identification as impermissibly suggestive and likely to result in irreparable misidentification. We disagree.
At the Wade*fn3 hearing to determine whether Ren's one-to-one "showup" identification of defendant resulted in a substantial likelihood of misidentification, both parties agreed that the out-of-court identification was impermissibly suggestive. However, based on the totality of the circumstances, the trial judge found no substantial likelihood of misidentification. The judge reasoned:
First of all, the defendant's physical description met the description that was given to Torres. That's a big variable. 20 minutes elapsed roughly from the time the description was given to Torres to the time of the ultimate identification. There [was] other corroborating [evidence] -- first of all, lighting apparently at the scene was good. Lighting at the middle school, where the identification [occurred] . . . was good. A lot of other physical evidence that corroborated the identification being appropriate, identification not subject to misidentification, those were the physical aspects. Not only the way he was dressed, manner he was dressed, physical size, fact he was a black male, existence of a motor vehicle that met the physical description of the vehicle given by the victim at the time of the initial report to Torres. Again, remembering it was not by broken English or sign language, but by the production of documents identifying the make, model, year and color of the motor vehicle. Those things were verified not only by Moffa when he arrested the defendant, but by the victim when he pointed to the vehicle. And the officer said that's the vehicle that met the description of the information given.
Not only that, the wallet of the victim with the victim's identifiers [was] found on the person of this particular individual, the defendant. He was identified in court as well as the keys.
So taking into consideration [the] totality of the evidence . . . [and] also by clear and convincing evidence [, a]ccordingly, I'm not going to grant the suppression of the identification made by the victim to Officer Torres.
There is a two-part test determining whether a pre-trial eyewitness identification procedure violates due process: (1) was the out-of-court identification impermissibly suggestive; and (2) if it was impermissibly suggestive, did the out-of-court identification "result in a 'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967 , 971, 19 L.Ed. 2d 1247, 1253 (1968)). Where there are sufficient indicia of reliability to outweigh the effect of the impermissibly suggestive out-of-court identification, then proof of the out-of-court identification as well as the in-court identification is admissible. State v. Little, 296 N.J. Super. 573, 579 (App. Div.) (citation omitted), certif. denied, 150 N.J. 25 (1997); see also State v. Herrera, 187 N.J. 493, 509 (2006).
"[O]ne-on-one showups are inherently suggestive. . . . because the victim can only choose from one person, and, generally, that person is in police custody." Herrera, supra, 187 N.J. at 504. Courts, however, have uniformly held that onthe-scene or near-the-scene one-to-one showup identifications between an eye witness and a suspect conducted shortly after the crime took place do not violate due process. Id. at 508-09 (showup at scene 170 minutes after carjacking); State v. Wilkerson, 60 N.J. 452, 461 (1972) (showup 90 minutes after eyewitness saw perpetrator at place where eyewitness saw perpetrator). An identification made soon after the crime is probably far more reliable than an identification made at a later time. Wilkerson, supra, 60 N.J. at 461. "They are likely to be accurate, taking place, as they do, before memory has faded." Ibid. "They [also] facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid.
"[T]o determine whether the impermissibly suggestive showup procedure was . . . sufficiently reliable to warrant the admissibility of the [victim's] identification . . . . [ the court] must consider the totality of the circumstances surrounding the identification procedure." Herrera, supra, 187 N.J. at 506. The court must "'weigh [the reliability factors] against the corrupting effect of the suggestive procedure.'"
Id. at 507 (quoting Madison, supra, 109 N.J. at 240). "The [reliability] factors are 'the opportunity of the witness to view the criminal at the time of the crime, the witness's 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.'" Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)).
A "witnesses' identification of the defendant . . . handcuffed in . . . the police car [i]s suggestive[,] but . . . 'such suggestive circumstances d[o] not render the identification procedure per se improper and unconstitutional . . . .' [if there is strong reliable identification from a] detailed description by . . . witnesses of the defendant and the vehicle involved [which can be] corroborated by [other evidence] . . . ."
Id. at 505-06 (quoting State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003)). In addition, "when . . . officers and [the victim] separate and the officers, minutes later, s[ee] defendant in the vicinity matching the description [the victim] had just provided, [then] bringing defendant into [the victim]'s view
[i]s not the type of showup that is fraught with the worries typically generated by a suggestive police-initiated showup." State v. Romero, 191 N.J. 59, 78 (2007).
Governed by this standard, we are satisfied that Ren's oneto-one showup identification did not result in a substantial likelihood of irreparable misidentification, and was therefore admissible. Indeed, the totality of circumstances rendered Ren's in-court identification highly reliable. In particular, Ren had several minutes during his confrontation with defendant to view his assailant at the crime scene, which was well-illuminated. Despite Ren's limited English language skills, he was still able to effectively communicate to the officers a description of both the suspect and his clothing as well as give Torres his 1998 Honda Passport's paperwork, including its make, model, year, color and New Jersey license plate number. Ren's description matched both defendant and the vehicle recovered, and enabled the officers to locate and apprehend defendant within twenty minutes of the crime and five blocks of the crime scene, in the stolen vehicle with several items belonging to Ren in his possession, including the car key, Ren's wallet and identification. These circumstances, coupled with defendant's own admission of his involvement in the crime and overwhelming evidence of his guilt, render Ren's in-court identification of defendant highly reliable. We are convinced that whatever "suggestiveness" may have inhered in the out-of-court showup identification did not result in any likelihood -- much less substantial -- of an irreparable in-court misidentification.
Defendant argues ineffective assistance of counsel based on defense counsel's reference in summation to the indictment's bifurcated charge of a "certain persons" weapon offense. This contention lacks merit.
In summation, defense counsel stated:
[Defense counsel]: What real evidence is there linking my client to any of these charges?
We're talking about a carjacking, a robbery. These are the charges you're going to be charged with. Carjacking, robbery, theft from a person, possession of a weapon, possession of a rifle and certain persons which is also certain people not supposed to --
[Prosecutor]: Judge, can we approach? (Sidebar discussion on the record)
[Prosecutor]: I don't think he should tell the jury about a certain persons charge. I think this is a problem.
[Defense counsel]: I completely lost it on that one --[(emphasis added).]
We are satisfied that defense counsel's fleeting, isolated, inadvertent and incomplete remark meets neither the "performance" nor "prejudice" prong of the constitutional test for ineffective assistance of counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984). Neither the aborted remark nor sidebar that ensued demonstrate substandard attorney performance. Nor did either inform the jury of defendant's prior criminal record. Therefore, the alleged attorney deficiency had no capacity to prejudice defendant. Moreover, the court, in both its preliminary jury instruction and final charge, repeatedly advised that the comments of counsel were not evidence, and we presume the jury heeded these instructions. See State v. Thompson, 59 N.J. 396, 412 (1971).
Accordingly, we are satisfied defendant's conviction was based on the overwhelming proof of his guilt and not on any one momentary lapse of counsel.
Lastly, defendant contends his 28-year sentence was manifestly excessive. We find no abuse of discretion.
At sentencing, the judge stated:
[T]here are three [aggravating factors:] . . . . (3) is the risk that you'll commit another crime based upon your long history, based upon the fact that you've had a juvenile history, that they've thrown rehabilitative services at you to no avail. (6), the extent of your prior record and the seriousness of the offenses. We've talked about how serious those offenses are, that you have an affinity for automobiles and unfortunately you exercise that affinity rather than getting a job and hard-working and buying yourself a motor vehicle, you attempt to secure them oft times by means of resorting to violence as in this occasion and . . . as was the occasion in your prior serious conviction, so I place great weight on both (6) and (3). (9), the need for deterrence, I place the greatest weight on. I have to send not only a message to you but others.
Now the question is you've already had sufficient terms of incarceration which really have not served as an adequate deterrent which beckons, certainly, the most serious type of sentence that I can impose, and certainly the public should know that these types of crimes will not be tolerated. They endanger life and property and discourage people from moving back to the city . . . . And (11), the imposition of any type of monetary sentence would be insufficient, and it's incumbent upon me to impose a term of incarceration because otherwise the public might perceive that your actions being merely the cost of doing business.
Now when I look at those . . . four aggravating factors and I don't have any mitigating factors to weigh them against; certainly the aggravated factors clearly and convincingly, substantially outweigh any mitigating factors, and accordingly, I'm going to sentence you. But I'm actually, because of your age more than anything else, going to not sentence you to the maximum allowable by law.
I'm going to sentence you to a term of 28 years in a New Jersey State Prison, 85 percent served without parole.
To be sure, the judge should not have considered aggravating factor eleven in light of the nature of the crime -- first-degree carjacking. However, it is clear the judge referenced this factor only minimally and incidentally and instead relied heavily on the other three considerations, most especially deterrence given defendant's extensive and serious juvenile record, while finding no mitigating circumstances applicable. Contrary to defendant's argument, the fact that Ren was not injured during the incident does not detract from the seriousness of this crime and its potential for harm. Thus, even without aggravating factor eleven in the mix, the remaining factors significantly outweigh the absence of any mitigating circumstances to amply support the court's imposition of a twenty-eight year term on defendant's first-degree carjacking conviction.