January 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COREY MORRIS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. CONST. (1947), ART. I, PARAS. 1, 13).
POINT III: DEFENDANT'S SENTENCE IS BOTH ILLEGAL AND EXCESSIVE.
B. The Extended Term On The Eluding Count Should Be Vacated.
C. The Sentence On The Eluding Charge Must Be Vacated In Light Of State v. Pierce, 188 N.J. 155 (2006).
D. The Sentence On The Robbery Counts Was Tainted By Impermissible Factors And Must Be Vacated.
In supplemental pro se briefs, defendant also raises these arguments:
POINT I: THE DEFENDANT/APPELLANT'S JUNE 9, 2003 STATEMENT MADE AT 5:22 PM DURING CUSTODIAL INTERROGATION SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT AFTER THE PROPHYLACTIC SAFEGUARDS OF MIRANDA V. ARIZONA, 384 U.S. 436 (1966), WERE VIOLATED AT THE TRENTON POLICE DEPARTMENT AT 3:04 P.M. BY REPEATED EFFORTS OF DETECTIVE ROLANDO RAMOS WHEN HE INTERROGATED APPELLANT AFTER APPELLANT INVOKED HIS RIGHT TO CUT OFF THE INTERROGATION BY REPEATED DENIALS TO THE ROBBERIES AND REFUSALS TO SPEAK VIOLATED THE FIFTH AMENDMENT NOT TO BE A WITNESS AGAINST HIMSELF AND FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS TO BE FREE FROM COERCIVE INTERROGATION. (U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PARAS. 1 § 8).
POINT II: THE DEFENDANT/APPELLANT'S MIRANDA WAIVER AND JUNE 9, 2003, STATEMENT OBTAINED DURING CUSTODIAL INTERROGATION BY DETECTIVE ROLANDO [RAMOS] RESULTED FROM A COERCIVE ATMOSPHERE AND SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT UNDER THE TOTALITY OF THE CIRCUMSTANCES AFTER APPELLANT SUFFERED HEAD TRAUMA IN A CAR ACCIDENT DUE TO THE FACT THAT APPELLANT WAS SLEEP DEPRIVED, DEPRIVED OF FOOD, DEPRIVED OF HIS CIVILIAN CLOTHING TO WEAR AND APPELLANT WAS DETAINED IN A CELL BY HIS JAILERS IN UNFIT CONDITIONS DEPRIVED APPELLANT OF HIS DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARA. 1).
POINT III: THE TRIAL COURT JUDGE SHOULD HAVE GRANTED DEFENDANT/APPELLANT'S MOTION TO RECUSE HIMSELF BECAUSE OF THE TRIAL COURT'S APPEARANCE OF PRIOR BIAS AGAINST APPELLANT LEAD TO FURTHER [UNETHICAL] AND ILLEGAL JUDICIAL CONDUCT VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1974) ART. I, PARAS. 1, 10).
POINT IV: THE TRIAL COURT'S DENIAL OF DEFENDANT/APPELLANT'S MOTION WITHOUT HOLDING A FARETTA V. CALIFORNIA, 95 S.CT. 2525 (1975) HEARING FOR WAIVER OF COUNSEL TO PROCEED PRO SE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION. (U.S. CONST. AMENDS. XI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 10).
POINT V: THE TRIAL COURT'S DECISION TO SHACKLE DEFENDANT/APPELLANT IN FRONT OF HIS JURY WAS ARBITRARY AND CAPRICIOUS AND IT EMASCULATED THE PRESUMPTION OF INNOCENCE, THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST. AMENDS.
V, VI § XIV; N.J. CONST. (1947) ART. I, PARA. 1, 8, 10).
POINT VI: THE STATE VIOLATED THE UNITED STATES CONSTITUTION WHEN IT FAILED TO CHARGE THE DEFENDANT/APPELLANT'S FACT OF HIS PRIOR CONVICTIONS UNDER THE PERSISTENT OFFENDER STATUTE, N.J.S.A. 2C:44-3(a), WITHIN HIS INDICTMENT ON COUNT THIRTEEN ELUDING POLICE/OR SEPARATELY IN AN INFORMATION THEN PROVE THE ELEMENTS TO A JURY BEYOND A REASONABLE DOUBT, THUS, RENDERS THE EXTENDED TERM SENTENCE ILLEGAL, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS (U.S. CONST. AMENDS. V, VI, § XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 8, 10).
Having reviewed the entire record, we conclude that with the exception of defendant's challenge to the extended sentence, all of his appellate arguments are without merit. Except to the extent discussed below, his contentions do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
We begin with defendant's argument that his confession should have been suppressed. The Miranda hearing presented a classic credibility contest between defendant and numerous police witnesses. According to the police, they were entirely solicitous of defendant's Miranda rights, avoided questioning him until they were certain that he was rested and alert, provided him with food and bathroom breaks, and otherwise treated him humanely. They testified that they arranged for defendant to be questioned by an officer whom he knew well and with whom he was comfortable, and that defendant never asked for an attorney. Rather, defendant voluntarily waived his Miranda rights and confessed, expressing remorse for committing the robberies and indicating that he knew he needed drug treatment.
On the other hand, defendant testified that he was brought to the police station from the hospital, where he was treated after the car accident, wearing only a hospital gown. According to defendant, at the police station he was confined in a cold, filthy holding cell furnished only with a steel cot with no blanket or mattress, deprived of food, kept handcuffed, threatened and choked by the police, denied an attorney when he requested one, and intimidated into signing a false confession. He also claimed that the signature on the Miranda waiver was not his.
While the police did not deny that defendant was wearing a hospital gown at the police station, they denied his claims of abuse and mistreatment. To rebut the claims of forgery, the State also produced Miranda forms and plea agreements signed by defendant in connection with prior charges, to show that the signatures on the forms in this case were the same as those on the documents defendant previously signed.
In a lengthy and comprehensive written opinion, the trial judge concluded that the police witnesses were credible in their testimony, and that defendant was not credible. On this appeal, defendant contends that the judge's credibility findings were erroneous, and that we should reverse the judge's determination based on defendant's version of the facts as presented in his testimony. We decline this invitation.
Our review of the trial judge's determination is limited.
We review a trial court's findings as to the admissibility of a defendant's confession under the "sufficient credible evidence" standard. We will only reverse these findings if they are not supported by substantial credible evidence. Under this standard of review, it is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Our review is restricted to assessing "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" [State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div.), cert. denied, 187 N.J. 492 (2006) (citations omitted).]
We "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999); see also State v. Knight, 183 N.J. 449, 468 (2005).
After reading the transcript of the Miranda hearing, as well as the trial transcript, we find no basis on which to disturb the trial court's credibility determinations and other factual findings concerning the circumstances of defendant's confession. The short answer to defendant's contentions is that, according to the trial judge's findings, the events at the police station simply did not transpire the way defendant claimed they did. Even if he was wearing a hospital gown and did not have a mattress or a blanket in the holding cell, this alone would not suffice to prove that his confession was not voluntary. See State v. Knight, supra, 183 N.J. at 467-71. Defendant was provided with food and water, the opportunity to sleep, and appeared alert and well-rested at the time of his interrogation. He was not threatened or physically abused and was questioned by an officer with whom he felt comfortable.
Moreover, in his written signed statement he acknowledged that the police had treated him fairly. In summary, we find no grounds to suppress defendant's confession.
We turn next to defendant's contention that his conviction should be overturned because the judge ordered that he wear shackles during the trial and did not give the jury an appropriate instruction that it was not to consider the shackling in assessing defendant's guilt or innocence. Since defendant did not request such a jury instruction, we review the latter argument under the plain error rule. R. 1:7-2; R. 2:10-2.
We review a trial judge's decision to shackle a defendant during trial under the abuse of discretion standard. See State v. Smith, 346 N.J. Super. 233, 240 (App. Div. 2002); State v. Mance, 300 N.J. Super. 37, 50-51 (App. Div. 1997). However, the trial judge must place on the record specific justification for the decision. Id. at 51.
"Our Federal and State Constitutions both guarantee defendant the right to a fair trial before an impartial jury and to a determination of guilt or innocence based solely on the evidence introduced at trial, 'and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.'" State v. Russell, 384 N.J. Super. 586, 592 (App. Div. 2006)(quoting State v. Artwell, 177 N.J. 526, 533-34 (2003)). As such, in Artwell, our Supreme Court held that:
[c]onsistent with the right to a fair trial, a trial court may not require a defendant to appear before the jury in restraints absent compelling reasons. We disfavor placing physical restraints on a defendant at trial because the jury is likely to consider such a defendant "'as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.'" [Id. at 534 (citations omitted).]
The determination of whether a defendant should be shackled "must be made by balancing the need for courtroom security against the potential prejudice of the restraints." Smith, supra, 346 N.J. Super. at 240 (cited with approval in Artwell, supra, 177 N.J. at 536).
Before ordering a defendant to be shackled in front of a jury, a trial judge must hold a hearing and document on the record the need to shackle a defendant:
The judge must hold a hearing, however informal, and state on the record out of the jury's presence his or her reasons for shackling the defendant, whether they are based on evidence from trial, information obtained from criminal records, or statements made by law enforcement officers. Additionally, "[i]n any case where the trial judge, in the exercise of sound discretion determines that the defendant must be handcuffed or shackled, it is of the essence that he instruct the jury in the clearest and most emphatic terms that it give such restraint no consideration whatever in assessing the proofs and determining guilt." [State v. Damon, 286 N.J. Super. 492, 499 (App. Div. 1996)(citations omitted).]
In this case, the trial judge gave a very detailed account on the record of the basis for his decision to shackle defendant. We agree with the judge that there were compelling reasons to shackle defendant during the trial. During the course of previous proceedings before this trial judge, defendant repeatedly interrupted the court, spat on the judge, striking him and the team leader in the face, threw books and papers at the judge, and even attempted to charge the bench before being subdued by a sheriff's officer. Based on defendant's violent and disruptive conduct, the need for courtroom security outweighed the potential prejudice of the restraints.
While the judge did not give the jury the specific limiting instruction mandated in State v. Damon, supra, he questioned the jurors during jury selection to ensure that they could fairly decide the case even though defendant would be shackled at the trial. In a similar case, we concluded that the trial judge's failure to give the requisite jury charge was not plain error based in part on the fact that "the jurors selected had all agreed that the shackling would not influence their decisions." State v. Mance, supra, 300 N.J. Super. at 52. In Mance, we also inferred that the shackling did not prejudice the jury against the defendants because the jury acquitted them on several counts. Ibid. In this case, defendant was only convicted on the one count as to which he admitted his guilt before the jury. Hence, we find no basis on which to conclude that the absence of a jury charge, which defendant did not request, had "a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
We likewise find no merit in defendant's contention that the judge should have recused himself. Under Rule 1:12-1(f), a judge "shall be disqualified on the court's own motion and shall not sit in any matter . . . when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." We review a judge's decision on a recusal motion for abuse of discretion. State v. Marshall, 148 N.J. 89, 275-76, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). We find none here. The fact that the same judge presided over prior trials involving this defendant did not justify recusal. See State v. Walker, 33 N.J. 580, 591 (1960). We also agree with the trial judge that defendant should not be able to manipulate the judicial system by using vile misbehavior during one court proceeding as a reason to disqualify the trial judge in the next proceeding.
The trial judge assured the defendant that he could conduct a fair trial:
If this Court thought for one second that it could not guarantee to Mr. Morris a fair trial, it would assign the matter else where. That is not the case. The Court can guarantee Mr. Morris a fair trial.
Our review of the record convinces us that the judge indeed conducted defendant's trial with scrupulous fairness, as well as admirable patience in the face of defendant's repeated outbursts and interruptions.
We also conclude that defendant's abominable misconduct in the prior proceedings, as well as his conduct during pretrial proceedings in this case, amply justified the judge's decision to deny defendant's motion to represent himself. As we recognized in State v. Gallagher, 274 N.J. Super. 285, 297 (App. Div. 1994),
[a] defendant who forgoes his right to counsel must be "able and willing to abide by [the] rules of procedure and courtroom protocol." "The right of self-representation cannot be insisted upon in a manner that will obstruct the orderly disposition of criminal cases." It is not a "license to abuse the dignity of the courtroom" or to refuse to "comply with relevant rules of procedural and substantive law." A trial judge may "terminate self-representation by a defendant who deliberately engages in serious and obstructionist [behavior]."
We affirm the trial judge's determination to deny defendant's motion for self-representation, for the reasons stated in the judge's cogent written opinion dated April 13, 2005.
Finally, we address defendant's challenge to his sentence. In light of defendant's lengthy criminal record, we find no abuse of discretion or other error in the judge's decision to sentence defendant, consistent with the plea agreement, to three concurrent twenty-year sentences for the robbery convictions. See State v. Ghertler, 114 N.J. 383, 388 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). However, we are constrained to reverse the imposition of an extended sentence on the eluding charge.*fn3
The State was required to give notice of its intent to seek an extended sentence within fourteen days after the May 18, 2005 jury verdict on the eluding charge. R. 3:21-4(e). Instead, the State did not file its motion until November 2005, by which time defendant had agreed to plead guilty to the robbery charges.
While we do not presume that the State delayed as a tactical maneuver, to ensure that the filing of its motion would not dissuade defendant from accepting a plea bargain on the robbery charges, we cannot discount the potential for manipulation inherent in this scenario. And in any event, while Rule 3:21-4(e) permits the court to extend the State's time to file an extended sentence motion "for good cause shown," in this case, the State made no showing of good cause for the delay. We therefore conclude that it was a mistaken exercise of discretion to permit the State to file the motion out of time. Accordingly, we reverse the imposition of the extended sentence on the eluding conviction and we remand for the limited purpose of re-sentencing defendant to an ordinary term for this conviction.
To summarize, we affirm defendant's conviction for eluding and affirm the sentences imposed as a result of defendant's guilty pleas on the three robbery charges. We reverse the extended sentence for eluding and remand for re-sentencing on that conviction.