January 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IVAN ANDERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-10-3378.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Yannotti and LeWinn.
Defendant Ivan Anderson was charged under an Essex County indictment with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree attempted murder; N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). Defendant was tried to a jury, which found him guilty of first-degree conspiracy to commit robbery on count one, and the lesser-included offense of second-degree robbery on count two. Defendant was found not guilty on the remaining charges.
The judge granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7.1b. Defendant was sentenced to two concurrent terms of twenty years of incarceration, both with periods of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate statutory fees and assessments also were imposed. Defendant appeals from the judgment of conviction dated January 27, 2005.
Defendant's convictions arise from the robbery of Stephen Beachum in the early morning hours of June 13, 2003 in Newark, New Jersey. Earlier that evening, Beachum had been at a "go-go" bar where his girlfriend Tylenicesa Davis was working as a barmaid. Beachum testified that at around 1:15 a.m., a friend drove him home.
Beachum arrived home and moved his car out of the driveway so that Davis could pull her car into the driveway when she returned from work. Beachum parked his car in the street facing his house. Beachum said that when he opened the driver's side door of his car and attempted to exit, two men appeared wearing masks. Beachum testified that one man was taller than the other man. The taller man placed his hand under his shirt and said, "you know what it is, you know the deal." Beachum identified defendant as the taller of the two men.
Beachum told the men that the "girls" at the "go-go" bar had his money. According to Beachum, the shorter man got into the back seat of his car, where a leather jacket was located. Davis pulled up in her car and asked what was going on. Beachum said that defendant looked back to see who was approaching. As defendant turned, Beachum jumped on him and caused him to fall to the ground. Beachum explained that while he had defendant on the ground, he pulled the mask off to see his face. Beachum said that the man had a large nose.
Beachum testified that defendant called out to the shorter man and stated, "[Y]ou [are not] going to do nothing [?] [Y]ou just want to stand there[?]" The shorter man then approached Beachum from behind and shot him in the head. Medical evidence established that the bullet entered Beachum's head behind his left ear and missed his brain by one centimeter. Beachum was taken to a hospital where he remained for nearly a month. As a result of the shooting, Beachum sustained nerve damage, which has resulted in certain physical limitations.
After being released from the hospital on July 7, 2003, Beachum went to the police station to view an array of photographs. Detective Marquise Carter of the Newark Police Department (NPD) testified that Beachum selected defendant's photograph from a six-photo array. Beachum identified defendant as the person who first approached him by the side door of his car. In court, Beachum testified that defendant's photo was the one that he selected from the array.
Davis' testimony concerning the incident differed to some extent from Beachum's testimony. Davis stated that when she arrived home on June 13, 2003, she noticed two man standing beside Beachum's car. One was taller than the other. Davis identified defendant as the taller man. She said that, when she arrived on the scene, the shorter man was already wearing the leather jacket. Davis said that defendant entered the rear of Beachum's car.
She asserted that, when she pulled up alongside the parked car and asked what was going on, the shorter man looked in her direction. At that point, Beachum charged the shorter man. The man did not fall to the ground but "tussled" and remained standing. According to Davis, the shorter man called for assistance. Defendant exited from the rear of Beachum's vehicle and shot Beachum. The two men ran from the scene after the shooting.
Detective Modesta Miranda of the NPD testified that on July 14, 2003, he arrested an individual, who was later identified as Malick Lowery, for possession of narcotics and a nine-millimeter handgun. Detective Frank Faretra of the NPD conducted various ballistics tests with the weapon. Faretra testified that a shell casing fired from the weapon matched the shell casing recovered at the scene of the Beachum shooting. Faretra stated that he was "[one] hundred percent" certain that the gun seized from Lowery was the gun used to shoot Beachum.
The police informed Lowery that the gun he had been carrying when he was arrested was used in a robbery and shooting. Detective Carter interviewed Lowery. Carter informed Lowery of his Miranda rights.*fn1 Carter told Lowery that he was being investigated in connection with the Beachum shooting. Lowery indicated that he wanted to give a statement. Lowery told Carter that he purchased the gun a few days earlier from a man known as "Champ." Lowery said that "Champ" was a drug addict who sold him the gun on behalf of an individual known as "G-Man."
According to Lowery, "Champ" told him that "G-Man" wanted $350 for the gun. Lowery told "Champ" that he only had $250, at which point "Champ" walked off and spoke to a man down the street. "Champ" returned and told Lowery that "G-Man" agreed to accept $250 for the gun. Lowery gave "Champ" the money and left with the nine millimeter handgun.
Lowery provided the police with a physical description of "G-Man" and he identified defendant as the person who sold him the gun from an array of photographs. Lowery testified that the man who gave "Champ" the gun was black, with braids in his hair. According to Lowery, the man was "close to six feet tall and he had a wide nose."
However, during a hearing conducted by the court to address the admissibility of Lowery's testimony, Lowery denied that he identified defendant as "G-Man." Lowery stated that he had spoken to defendant in the "bullpen" prior to the hearing, and Lowery disclosed his recent arrest for gun possession. Lowery asserted that defendant discussed the charges that were pending against him. Lowery said that defendant had a copy of the statement that he gave to Detective Carter. Lowery wrote to the court and said that certain portions of that statement were not accurate. The judge ruled that, although there were inconsistencies between Lowery's statement to the police and his testimony at the hearing, Lowery's testimony was admissible.
At trial, Lowery denied that he identified defendant as "GMan." Lowery said that his statement to the police and the record of his photographic identification had been "altered." Lowery asserted that the portion of his written statement where he discussed the identification of "G-Man" was not in the document when he signed it. In addition, Lowery claimed that he did not select defendant's photo in the photographic line-up.
In this appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT'S JURY INSTRUCTIONS ON IN-COURT AND OUT-OF-COURT IDENTIFICATION WERE DEFICIENT (Not raised below).
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE BY THE COURT'S PRECLUSION OF ADMISSIBLE EVIDENCE.
DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DETERMINE WHETHER HE VOLUNTARILY WAIVED HIS RIGHT TO WEAR CIVILIAN CLOTHING DURING JURY SELECTION.
DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL AND THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
DEFENDANT'S CONVICTION AND SENTENCE FOR CONSPIRACY MUST BE VACATED, AS IT MERGES WITH HIS CONVICTION AND SENTENCE FOR ROBBERY.
We turn first to defendant's contention that the judge's instructions to the jury on identification were deficient. Since this contention was not raised at trial, we consider whether the instructions were erroneous and, if so, whether the error was clearly capable of producing an unjust result. R. 2:10-2.
When instructing the jury, the trial judge noted that defendant maintained that he was not the person who committed the alleged offenses. The judge stated that the State had the burden of proving beyond a reasonable doubt that "this defendant is the person who committed the crimes alleged." The judge informed the jury that defendant did not have the burden of showing that someone else committed the crimes. According to the judge, the State had the burden of proving, beyond a reasonable doubt, the identity of the person who committed the offense.
The judge noted that the State had presented identification testimony from Beachum and Davis. The judge stated:
It is your function to determine whether the witness's identification of the defendant is reliable and believable or whether it is based on a mistake or for any reason that it is not worthy of belief.
You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged.
Now, in evaluating the identifications you should consider the observations and perceptions on which these identification[s] were based and the witness's ability to make those observations and perceptions. If you determine that the out of court identification is not reliable you may still consider the witness's in court identification of the defendant if you find it to be reliable. Unless the in court identification resulted from the witness's observations or perceptions of the perpetrator during the commission of the alleged offense rather than being a product gained from the out of court identification procedure, it should be afforded no weight.
The ultimate issue of the trustworthiness of both the in court and out of court identifications are for you to decide. To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged you should evaluate the testimony of the witnesses in light of the factors for considering credibility that I've already explained to you.
The judge further instructed the jury that it could consider certain additional factors in determining whether the identifications were trustworthy. Those factors included: the witness's opportunity to observe the perpetrator at the time the offense was committed; the witness' degree of attention on the perpetrator when the crime was being committed; the accuracy of any description the witness may have provided prior to the identification; the witness's degree of certainty; the length of time between the witness's observation of the offense and the witness's first identification; the circumstances under which the out-of-court identification was made; and any other factor that the jury might believe was relevant to whether the identification was reliable. The judge stated that if the jury determined, after considering all of the evidence, that defendant was not the person who committed the alleged offenses, it must find defendant not guilty.
Defendant concedes that the instruction followed the model jury charge on in-court and out-of-court identification that was in effect in October 2004, when the trial of this matter occurred. Nevertheless, defendant contends that because of the conflicts in the testimony of Beachum and Davis, the judge should have supplemented the model jury charge with additional language similar to that required by State v. Romero, 191 N.J. 59, 76 (2007), a case decided after the trial in this matter. We disagree.
In Romero, the defendant was convicted of first-degree robbery and other offenses. Id. at 62. The defendant was of Hispanic origin and he asserted that the victim, who was Caucasian, had misidentified him. Ibid. The identification testimony was critical in the case and there was a "dearth of corroborating evidence to supplement the reliability of [the] identification." Ibid. The defendant argued that the trial court should provided the jury with a cross-racial identification charge. Id. at 63.
The Court held that the trial judge had adequately instructed the jury concerning its duty to examine the identification testimony carefully. Ibid. However, the Court ordered a change in the model charge on out-of-court and in-court identification "so that it will alert jurors in all eyewitness identification cases that such testimony requires close scrutiny." Ibid.
The Romero Court stated that although the then-present model charge "adequately caution[ed] juries" that "particular care" must be taken in evaluating eyewitness identification testimony, the model charge warranted "further improvement." Id. at 75. The Court thus required the inclusion of the following language in the model jury charge:
Although nothing may appear more convincing that a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification. [Id. at 76.]
The Court referred the matter to the Model Jury Charge Committee "for action implementing the direction contained in [its] opinion." Ibid.
We are convinced that, although lacking language similar to that required by Romero, the instructions on identification given to the jury in this case were not clearly capable of producing an unjust result. R. 2:10-2. As in Romero, the jury "received ample instruction about the need to examine carefully" the eyewitness testimony presented by the State. Id. at 63. While the judge did not say so explicitly, the instructions in this matter effectively required the jury to critically analyze Beachum's and Davis's identification testimony. The judge emphasized that the overriding issue was the reliability and trustworthiness of the identifications. The judge did not specifically state that a witness's "categorical" identification might be mistaken, even if made in good faith, but that point was implicit in the charge provided in this case.
Defendant additionally argues that the trial judge erred because, in his instruction, the judge failed to mention Lowery's out-of-court identification. Defendant argues that the jury therefore was free to accept Lowery's identification testimony without having to assess its reliability and trustworthiness. Again, we disagree.
In our view, the judge's instructions on out-of-court and in-court identifications clearly pertained to all identification testimony in this case. The jury was not led to believe that it had no obligation to consider the reliability of Lowery's identification. The judge's failure to mention Lowery's identification in his charge may have been erroneous, but it was not an error that was clearly capable of producing an unjust result. R. 2:10-2.
We next consider defendant's contention that the judge erred by limiting his cross examination of Malik Lowery.
As we stated previously, at trial, Lowery denied that he had identified defendant as "G-Man," the man who instructed "Champ" to sell Lowery the gun that had been used in the Beachum shooting. The State then confronted Lowery with his prior sworn statement in which he identified defendant as "G-Man." On cross examination, defense counsel sought to elicit testimony that before Lowery gave his statement to the police, an officer threatened that Lowery would do "lots of time" for possession of the weapon. The assistant prosecutor objected to the question on the ground that it sought to elicit hearsay.
At sidebar, the judge discussed the State's objection to the question. Defense counsel asserted that the testimony would not be hearsay because it was not being offered to establish the truth of the facts asserted by the officer but rather to establish defendant's state of mind at the time he gave the statement. The judge sustained the State's objection, noting that "relevance is one evidentiary hurdle, [and] it has to be competent evidence that this witness is testifying to."
Defendant argues that the judge erred because the evidence as to what the officer said to Lowery before he provided his statement was not hearsay. In response, the State maintains that the judge properly sustained the objection because Lowery's testimony on that issue was not relevant. The State notes that, at a pre-trial hearing, Lowery had testified that he was not threatened by the police and no promises were made to him to induce him to provide his statement.
Decisions regarding the admission of evidence are committed to the sound discretion of the trial judge and we will not reverse such a determination unless "there has been a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989). In our view, it is unnecessary to decide whether the judge erred by sustaining the State's objection to defense counsel's question because, even if the judge mistakenly exercised his discretion, defendant was not prejudiced by the limitation of his cross examination of the witness.
As stated previously, Lowery had testified at a pre-trial hearing that he had never been threatened by the police. We must assume that Lowery would have given the same testimony at trial if he had been permitted to answer the question posed by defense counsel. Furthermore, Lowery made clear in his testimony that the written statement he gave to the police had been altered and he never identified defendant as "G-Man." It is unlikely that Lowery would have stated that he had been threatened to identify defendant when he insisted that he never made such an identification.
We turn to defendant's contention that he was denied the right to a fair trial because the judge failed to determine whether he waived his right to wear civilian clothing during jury selection.
The Supreme Court of the United States has held that a defendant may not be compelled to stand trial in prison garb but a waiver of that right may be implied from a defendant's failure to object. Estelle v. Williams, 425 U.S. 501, 512-13, 96 S.Ct. 1691, 1697, 48 L.Ed. 2d 126, 135 (1976). In State v. Carrion-Collazo, 221 N.J. Super. 103 (App. Div.), certif. denied, 110 N.J. 171 (1988), we stated:
[E]ven in the absence of a constitutional requirement, future criminal defendants appearing for a jury trial in prison garb should be personally questioned by the trial judge concerning their desire to relinquish the right to appear in civilian clothing and that this right should be given up only by means of a knowing, intelligent and voluntary waiver on the record before the trial judge. [Id. at 112.]
A trial judge must be assured that the defendant has not been forced to choose between civilian clothing and prison garb that could prejudice him before a jury. State v. Herrera, 385 N.J. Super. 486, 498-99 (App. Div. 2006).
In this case, defendant appeared for jury selection in what is described as "prison green pants." Defendant's counsel did not object and the judge did not question defendant on whether he waived his right to appear in civilian clothing during jury selection. The issue was raised by defendant's counsel outside of the presence of the jury before opening statements.
Defense counsel informed the judge that the evening before, defendant's sister had gone to the jail with "some pants for her brother" but the corrections officers refused to take them. Counsel asserted that "a couple of days ago[,] the same thing happened." Counsel stated, "He's got on his prison greens, county greens, [and] he had them on during jury selection. He's got on a pink shirt with green pants. Although he's a preppie today[,] I have some issue with that."
The judge stated that he had been under the impression that the family had been "circumventing" jail security. Defendant's counsel replied that this was not his understanding. The judge ordered the sheriff's officer to screen defendant's clothing and defendant was given an opportunity to change his pants before the jury was brought in. It is undisputed that defendant was attired in civilian clothing throughout the remainder of the trial.
We are satisfied that the judge's failure to question defendant concerning his clothing during jury selection was not an error clearly capable of producing an unjust result. R. 2:10-2. The record does not disclose whether it would have been immediately apparent to prospective jurors that the green pants that defendant was wearing during jury selection were "prison garb." Indeed, when defense counsel raised this issue with the judge before opening statements, counsel explained that defendant's pink shirt and green pants gave him the appearance of a "preppie."
In these circumstances, we are satisfied that defendant's right to a fair trial was not abridged and the judge's failure to follow the procedures mandated by Carrion-Collazo does not warrant a new trial in this matter.
Defendant contends that the judge erred by denying his motion for a judgment of acquittal on the conspiracy charge. Defendant asserts that there was insufficient evidence to show that defendant and an unidentified man agreed or planned to commit the robbery. On a motion for a judgment of acquittal, the court must determine whether based upon all of the evidence presented by the State, and the favorable inferences that might legitimately be drawn from that evidence, a jury could rationally find defendant guilty beyond a reasonable doubt. State v. Josephs, 174 N.J. 44, 80 (2002) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). Here, the State presented sufficient evidence to support a finding by the jury that defendant was guilty of conspiracy to commit robbery.
Defendant additionally argues that the verdicts on the robbery and conspiracy counts were against the weight of the evidence. We note that defendant never moved in the trial court for a new trial on this basis. Because that motion was not made, the issue is not cognizable on appeal. R. 2:10-1.
However, in the interests of justice we have elected to consider the contention. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1993). We are satisfied that, based on the evidence presented at trial, the jury could rationally find beyond a reasonable doubt that defendant committed the charged offenses, and the verdict was not a miscarriage of justice under the law. R. 2:10-1.
Defendant next argues that the judge erred by imposing a sentence on the conspiracy conviction. Defendant maintains that the conspiracy conviction merges with the conviction for robbery. The State concedes that conspiracy to commit robbery merged with the robbery itself. We agree and therefore remand to the trial court for entry of an amended judgment of conviction merging the conspiracy conviction with the conviction for robbery.
Affirmed and remanded for entry an amended judgment of conviction in conformance with this opinion.