January 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY D. WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-08-0341-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Coburn and Grall.
Defendant Troy Williams appeals from a final judgment of conviction that was entered after a judge of the Family Part waived that court's jurisdiction over a delinquency complaint. The jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1, and he was sentenced to a five-year term of incarceration.*fn1 Pursuant to the No Early Release Act, defendant must serve eighty-five percent of that term without possibility of parole and a subsequent two-year term of parole supervision. N.J.S.A. 2C:43-7.2. The judge also required defendant to pay restitution in the amount of $240.90 and imposed a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. For the reasons set forth below, we affirm.
Brian Caffarelli, the victim of the crime, described the robbery at trial. On the night of February 5, 2004, Caffarelli, an employee of a pizzeria, was dispatched to make a delivery to a residence in "the projects" in Phillipsburg. Because he was not certain about the exact location of the residence, he parked in the circle at the end of the street. He noticed three men standing next to a car parked nearby. Two of them, defendant and an older man, approached him. To Caffarelli, the older man appeared intoxicated. He had a bottle in his hand and Caffarelli could smell liquor on his breath. Commenting on Caffarelli's race, the intoxicated man asked Caffarelli what he was doing in his area. Defendant intervened and told his companion that he knew Caffarelli from school. Caffarelli recognized defendant, whom he had known since middle school. He concluded that defendant was "sticking up" for him.
Caffarelli also testified to the following. Defendant asked Caffarelli if he needed help and offered to lead him to the right address. Caffarelli followed defendant, and the intoxicated man followed behind. When they reached the last dwelling, near the train tracks and woods, Caffarelli realized that the street addresses were not right. At that point, he and defendant were walking next to one another. The intoxicated man closed in from behind. The pizzas were taken, Caffarelli's money was taken and his hat was removed. After the pizza and money were stolen, the intoxicated man grabbed Caffarelli's arm. They slipped on the snow, and Caffarelli fell to the ground. He did not know whether the intoxicated man fell. He got up on his hands and knees, lifted his face and saw a fist. "It was just like bam right in the face." It was a "hard hit," and he saw "stars." That punch was the only blow delivered. Defendant was the one who hit him. Caffarelli managed to get to his car and return to the pizzeria. He was short $300 in cash, and there was a welt on his head.
The police were called to the pizzeria. Caffarelli gave the officers defendant's first name and told them that he knew defendant and would be able to find him in the yearbook from their middle school. He described defendant as "clean-shaven" and subsequently identified defendant's photograph.
Caffarelli's testimony at trial was not entirely consistent with information he gave to investigating officers. He told the officers he had "no idea" who threw the punch. When questioned in front of his boss and co-workers, he said that he was overcome by three men. At the police station, however, Caffarelli admitted that only two men were involved. At trial, Caffarelli explained that he embellished the account that he gave when questioned in the presence of his boss and co-workers because he was embarrassed to admit that he trusted and was fooled by defendant.
On the basis of the foregoing evidence, the jury found defendant guilty of second-degree robbery.
Defendant presents the following issues on appeal:
I. DEFENSE COUNSEL DEPRIVED [DEFENDANT] OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE REFERRAL HEARING BY HIS FAILURE TO OBTAIN A PSYCHIATRIC EVALUATION. FURTHERMORE, THE WAIVER COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ORDER A PSYCHIATRIC EVALUATION UNDER R. 5:3-3. (Not Raised Below)
II. [DEFENDANT] WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S MISCONDUCT DURING SUMMATION. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1, ¶ 10). (Partially Raised Below)
III. THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE AN INSTRUCTION PURSUANT TO STATE V. BIELKIEWICZ, WHICH DEPRIVED THE JURY OF THE OPPORTUNITY TO PROPERLY CONSIDER THE LESSER-INCLUDED OFFENSE OF THEFT. (Not Raised Below)
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE JURORS TO TAKE NOTES DURING [DEFENDANT'S] TRIAL. (Not Raised Below)
V. [DEFENDANT'S] SENTENCE IS MANIFESTLY EXCESSIVE. (Not Raised Below)
There is no ground to grant relief based on defendant's objections to the waiver hearing. He does not claim any error related to the State's obligation to establish "'that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interests of the public require waiver.'" State v. R.G.D., 108 N.J. 1, 14-15 (1987); see N.J.S.A. 2A:4A-26a(2)(d). Rather, his claims relate to his obligation to show "the probability of rehabilitation[, through procedures, services and facilities available for juvenile offenders,] prior to [his] reaching age nineteen and that such probability substantially outweigh[ed] the reasons for waiver." See R.G.D., supra, 108 N.J. at 15; N.J.S.A. 2A:4A-26e. The judge found that the probability of defendant's rehabilitation within the juvenile justice system before reaching his nineteenth birthday did not outweigh the reasons for waiver. N.J.S.A. 2A:4A-26e.
Defendant was seventeen years and three months old when this robbery was committed and was eighteen years and four months old at the time of the waiver hearing. He had been adjudicated delinquent on multiple occasions based on conduct that occurred on fourteen separate dates between April 12, 2000, and November 20, 2001. As a consequence of his prior adjudications, he had been placed on probation, required to pay fines and sent to Jamesburg. He had violated probation. He had been offered an opportunity to attend an in-patient rehabilitation program, which he declined because he would be required to remain in the program for eighteen months. He had been admitted to but had not completed outpatient programs.
Defendant's attorney presented evidence to establish that his client was making progress in addressing problems that contributed to his conduct. Defendant's mother testified about abuse defendant had suffered as a child. Defendant and the mother of his infant son gave testimony to establish that his child gave him a reason to reform his behavior. During the period of confinement between defendant's arrest and the waiver hearing, he had completed a relapse prevention and addiction program and was attending another drug and alcohol program and a self-help group once a week.
Defendant's attorney did not provide any psychological evaluations other than those prepared in connection with prior hearings on the appropriate disposition of juvenile charges. On the State's objection to the relevance of those aged evaluations, the judge declined to consider the outdated materials.
Defendant's claim of ineffective assistance is based solely upon the attorney's failure to produce an expert opinion on the probability of rehabilitation. Nothing in this record indicates that favorable expert testimony was or would have been available to defendant. Expert testimony on amenability to rehabilitation is often met with other expert testimony that cancels it out, making emphasis on "practical and factual indicia of rehabilitation" essential. State v. Ferguson, 255 N.J. Super. 530, 540-42 (App. Div. 1992), certif. denied, 138 N.J. 265 (1994). To obtain relief on the basis of ineffective assistance of counsel at the waiver hearing, defendant "must show that expert or otherwise qualified testimony was available to establish a specific plan of rehabilitation such that there was 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.'" State v. Jack, 144 N.J. 240, 254 (1996). Defendant's claim has no apparent merit, but because such claims "are best left to post-conviction review," we do not resolve the question. State v. Lewis, 389 N.J. Super. 409, 416 (App. Div. 2007); see State v. Preciose, 129 N.J. 451, 460 (1992).
Defendant's claim that the judge abused the discretion afforded by Rule 5:3-3(a) lacks sufficient merit to warrant more than brief comment. R. 2:11-3(e)(2). This claim is based on the judge's failure to obtain an expert opinion on defendant's amenability to rehabilitation. "In determining whether to exercise that power, the court should 'balance competing interests -- the expense the public would bear compared to the value of the testimony of the witness.'" R.G.D., supra, 108 N.J. at 18 (quoting State v. Cantalupo, 187 N.J. Super. 113, 120 (App. Div. 1982), certif. denied, 93 N.J. 274 (1983)). Given defendant's age and the numerous unsuccessful attempts to rehabilitate him within the juvenile justice system, we cannot conclude that the judge was clearly mistaken in failing to balance these factors and appoint an expert. See id. at 15 (discussing standard of review in waiver hearings).
The portions of the prosecutor's closing argument to which defendant objects did not deprive defendant of a fair trial. Prosecutors "are expected to make vigorous and forceful closing arguments," and, where the arguments are based on the evidence and reasonable inferences from that evidence, related "comment[s], denunciation[s] or appeal[s]" do not afford "ground for reversal." State v. Smith, 167 N.J. 158, 177-78 (2001) (internal quotations and citation omitted). Prosecutors may not vouch for the credibility of the State's witnesses, "cast unjustified aspersions" on the defense or disparage defense counsel "for simply doing his or her job." State v. Frost, 158 N.J. 76, 83-86 (1999). When argument is presented without objection, the silence of defense counsel indicates that the attorney did not view the argument as prejudicial. Id. at 83-84.
Without objection, the prosecutor presented the following arguments in response to defense counsel's summation. Noting that defense counsel focused on differences in Caffarelli's various descriptions of the incident, the prosecutor asserted that the defense was likely thankful that Caffarelli was too embarrassed to give an accurate description of the incident in the presence of his boss and co-workers. Referencing Caffarelli's explanation for the inconsistency, the prosecutor commented: "I'm sure if he has some intelligence, Mr. Caffarelli, which he obviously does, he knows it ain't going to help his case, but he told you the truth." The prosecutor asked the jurors to recall whether defense counsel probed the inconsistencies, line-by-line as would an experienced attorney, and said defense counsel had not done that. The prosecutor suggested that defense counsel would have had a better argument if he were representing a different participant in this crime and was not "stuck with having to prove to you - strike that. With wanting you to believe that Troy Williams is not guilty."
With the exception of the prosecutor's obvious misstatement about the burden of persuasion, which he promptly corrected, the arguments invited jurors to draw inferences based upon the evidence, their opportunity to see and hear the witnesses and the defense presented. Viewed in context, the prosecutor's reference to Caffarelli's truthfulness does not suggest the prosecutor's personal view of veracity based on facts not in evidence; it is argument based on Caffarelli's testimony. Like defendant's trial counsel, who explained that he did not object to the foregoing comments because he understood the wide latitude afforded in summation, we see no argument that exceeds the boundaries of permissible advocacy.
At trial, defense counsel objected to only one argument made by the prosecutor. Caffarelli had described defendant as clean-shaven. When defendant was arrested, fourteen days after the robbery, he was not clean-shaven. The prosecutor argued: "And low and behold, [defense counsel] sees an arrest report and sees beard on there. Oh, let's try that one." In responding to defense counsel's objection, the judge explained that defense counsel was doing what he was supposed to do and told the prosecutor to continue with his argument. The prosecutor, accepting the judge's ruling and presenting argument based on the delay between the crime and the arrest, told the jurors that if defense counsel was doing what he was supposed to do, they were not required to believe it. He then made proper arguments grounded in the evidence. Under the circumstances, we are convinced that this portion of the closing argument, while improper, did not "create a real danger of prejudice." Smith, supra, 167 N.J. at 178.
Defendant contends that his conviction must be reversed because the judge did not direct the jurors that they could acquit defendant of robbery if they found that his companion, but not he, intended to use force or knowingly inflicted bodily injury. See State v. Bielkewicz, 267 N.J. Super. 520 (App. Div. 1993). We conclude that the omission of the instruction from the initial charge to the jury was harmless error and that defense counsel invited any error in a supplemental charge given in response to a question submitted by the jurors during their deliberations.
Prior to summations, the judge discussed the jury instructions at length with the attorneys. The conference was conducted on the record. Neither the State nor defendant requested a jury instruction on accomplice liability. Defendant was not tried with a co-defendant. Although the grand jurors included a charge of conspiracy in the indictment, the State did not present evidence to support a conviction for conspiracy. For that reason, the charge was dismissed, on defendant's motion, at the close of the State's case.
The State's theory of this case was that defendant, who knew the victim, was the mastermind of the crime and the person who punched defendant. Defendant contended that he was not involved and was mistakenly identified.
This court has cautioned trial courts to exercise care in delivering a charge on accomplice liability when it is not consistent with either the State's or the defendant's theory of the case. State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd 162 N.J. 580 (2000). In Oliver, we held that omission of the charge required by Bielkiewicz is not plain error if there is no evidence that the participants acted with different goals or awareness of the likelihood of causing harm. Id. at 596-97. We reach the same conclusion here.
The issue of accomplice liability was raised by the jurors, after they commenced their deliberations on the crimes submitted for their consideration -- second-degree robbery and the lesser-included offenses of theft and theft from the person.*fn2 They inquired: "Does the defendant have to be the one who actually hit the victim to be considered guilty of second degree robbery, or just be present."
The judge consulted with counsel. Defense counsel suggested an instruction directing the jurors that "mere presence" was not a sufficient basis for liability. Advising the court that he had made one argument in his summation that suggested concerted action, the prosecutor contended that the judge should instruct the jurors on accomplice liability. Defendant's attorney objected on the ground that accomplice liability had not been part of the case.
After conducting extensive discussions with the attorneys and affording them an opportunity to submit proposed charges, the judge presented them with a draft charge, which he then revised to incorporate all changes requested by defendant's attorney. The prosecutor renewed his request for a complete charge on accomplice liability. Defense counsel again objected on the ground that summations had been given. The judge, expressly noting his agreement with defense counsel's view, gave the charge that he had prepared and revised in accordance with defendant's suggestions.
The judge gave the following response to the jurors questions:
You have asked the court ["]does the defendant Mr. Williams have to be the one who actually hit the victim to be considered guilty of second-degree robbery?["] The answer to that question is no. N-O.
The second part of the question was, ["]or is just his presence sufficient?["] I have discussed that with counsel and I want you to listen to the following discussion. Always prefaced to beyond a reasonable doubt. It's a one-way communication.
The mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him a participant in the crime. The presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a purpose and an actual participation in the crime committed.
It depends upon the totality of the circumstances, as those circumstances appear from the evidence.
Defendant now argues that this instruction did not explain that two accomplices, in the course of committing a theft, could act with a different culpable state of mind relevant to use of force or infliction of bodily injury required for robbery. Bielkiewicz, supra, 267 N.J. Super. at 535 (noting that jury instructions on accomplice liability must include an instruction that one accomplice may be found guilty of an offense less serious than the other); see State v. Norman, 151 N.J. 5, 37 (1997) (discussing and approving Bielkiewicz). Because any deficiency in the supplemental instruction was induced by defendant, he may not seek relief on that basis.
"[A] 'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). Error is invited "only when a defendant in some way has led the court into error." Id. at 359. By repeatedly resisting an instruction on accomplice liability and crafting a charge he deemed most favorable to his client, defense counsel induced any error in the supplemental charge.
The arguments raised in Points IV and V of defendant's brief lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2). Defendant did not object to the jurors' note-taking and presents no argument as to how the procedures employed worked to his disadvantage or could have led to an unjust result. R. 2:10-2. Defendant received the minimum sentence for a crime of the second degree and a period of parole ineligibility mandated by statute. N.J.S.A. 2C:43-6a; N.J.S.A. 2C:43-7.2. The judge was not free to impose a shorter term of incarceration unless he was "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and [that] the interest of justice demand[ed]" a lower sentence. N.J.S.A. 2C:44-1f(2); see State v. Megargel, 143 N.J. 484, 505 (1996) (noting that the reasons must be "compelling"). In short, the judge did not misapply the sentencing law and there is nothing clearly unreasonable or shocking about this sentence. See State v. Roth, 95 N.J. 334, 364 (1984).