On appeal from the Superior Court of New, Law Division, Mercer County, Indictment No. 03-11-1069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2007
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Corey Morris appeals from his conviction for second-degree eluding, N.J.S.A. 2C:29-2b, and from the extended sentence imposed for that conviction. He also appeals from the sentence resulting from his subsequent guilty plea to three counts of first-degree robbery. We affirm the eluding conviction and the sentence for the robbery convictions, but we reverse the imposition of the extended sentence for eluding. We remand for resentencing on the eluding conviction.
Defendant was initially arrested for leading the police on a high-speed chase after they attempted to stop him while he was driving a stolen vehicle. After defendant crashed the vehicle into a fence, he was finally apprehended. At the scene, the police observed defendant taking something off his head, and found a costume mask bearing the likeness of former President Richard Nixon. Police then questioned defendant about a series of convenience store hold-ups that had been committed by an individual wearing a Richard Nixon mask. Defendant confessed to committing those robberies.
Defendant was indicted on the following charges: three counts of robbery (first degree), N.J.S.A. 2C:15-1; (2) four counts of possession of a weapon for an unlawful purpose (second degree), N.J.S.A. 2C:39-4a; (3) aggravated assault (second degree), N.J.S.A. 2C:12-1b(1); (4) aggravated arson (second degree), N.J.S.A. 2C:17-1a; (5) possession of a destructive device (third degree), N.J.S.A. 2C:39-3a; (6) theft by unlawful taking (third degree), N.J.S.A. 2C:20-3; (7) criminal mischief (third degree), N.J.S.A. 2C:17-3a; (8) eluding (second degree), N.J.S.A. 2C:29-2b; (9) unlawful possession of a weapon (fourth degree), N.J.S.A. 2C:39-5d; (10) resisting arrest (third degree), N.J.S.A. 2C:29-2; and (11) hindering (fourth degree), N.J.S.A. 2C:29-3b.
Prior to defendant's trial on these charges, the trial judge ruled that defendant would be shackled during the trial.*fn1
The judge based this ruling on defendant's disruptive conduct at previous proceedings, including a sentencing hearing during which defendant spat on the judge and court staff, threw books at the judge, and attempted to charge the bench despite being shackled. The judge also declined to recuse himself from the upcoming trial. He reasoned that, despite defendant's opprobrious behavior, the judge was still able to fairly conduct the trial and that recusing himself would reward defendant for his bad behavior and encourage other defendants to misbehave in order to disqualify any judge they disliked. The judge denied defendant's request to represent himself at the trial given his inability to control his behavior in the courtroom.
Following a Miranda*fn2 hearing, the judge issued a twelve-page written opinion dated May 4, 2005, denying defendant's application to suppress evidence of his confession. The judge credited police testimony that defendant was read his Miranda rights and voluntarily agreed to waive his right to remain silent. The judge did not find credible defendant's testimony that he requested an attorney but that the police refused his request, physically abused him, and coerced him into confessing to the robberies.
During the pre-trial hearings, defendant repeatedly interrupted the proceedings with statements and remarks, including insults directed at the judge. At one point, defendant expressed the hope that the judge would have a heart attack. The judge dealt with this conduct firmly and with exemplary patience.
The trial lasted several days. Like the pre-trial hearings, the trial was marked by repeated instances in which defendant interrupted the proceedings. The State presented evidence of the Nixon mask robberies, during which the robber threatened the victims with an ignited Molotov cocktail as well as a gun. The State also presented evidence concerning defendant's theft of a white Jeep and the subsequent police chase. Testifying on his own behalf, defendant candidly admitted taking the vehicle and eluding the police. However, he claimed that he only took the Jeep after someone else (presumably the robber) jumped out of the vehicle and left the motor running. In fact, in summation, defense counsel also told the jury that defendant was guilty of eluding. On May 18, 2005, the jury deadlocked on all but one of the charges, only convicting defendant of eluding.
Immediately prior to commencement of the re-trial in September 2005, defendant agreed to plead guilty to three counts of first-degree robbery, on the understanding that he would receive a maximum twenty-year sentence on each conviction, to be concurrent to each other and to the sentence on the eluding conviction. On the record at the plea hearing, the judge recited that "the state waives any extended term with respect to Counts 13 [eluding] and Five [robbery] only." This was inconsistent with the written plea agreement, in which the state waived an extended term only with respect to the three robbery counts, but the prosecutor did not object to the judge's statement.
Shortly before defendant was to be sentenced on November 18, 2005, the State filed a motion for an extended term on the eluding conviction. Although the motion was more than five months out of time, see R. 3:21-4(e), the judge granted it and sentenced defendant to a twenty-year extended term on the eluding charge. The eluding sentence was to run concurrent to three concurrent twenty-year terms for the robbery convictions. Defendant's aggregate sentence was twenty years subject to the No Early Release Act.
On this appeal, defendant raises the following contentions:
POINT I: THE TRIAL COURT'S DECISION TO SHACKLE DEFENDANT IN FRONT OF THE JURY ERODED THE PRESUMPTION OF INNOCENCE, DEPRIVING HIM OF A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMENDS. V, VI & XIV; N.J. CONST. (1947), ART. I, PARA. 13.
POINT II: THE TRIAL COURT SHOULD HAVE SUPPRESSED DEFENDANT'S STATEMENT MADE DURING CUSTODIAL INTERROGATION. (U.S. CONST. AMENDS. V, XIV; N.J. ...