July 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RUBEN MEJIAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0558.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 12, 2008
Before Judges Cuff, Lihotz and Simonelli.
Passaic County Indictment No. 05-05-0558, charged defendant, Ruben Mejias, and co-defendant, Wilfredo Toribio, with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); and second-degree robbery, N.J.S.A. 2C:15-1(a)(1) or (2) and N.J.S.A. 2C:2-6 (count two). Additionally, the indictment charged defendant with fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count three); and fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1(a) (count four). Counts one and four were dismissed prior to defendant's trial.
The jury returned a guilty verdict on both charges. After granting the State's motion for an extended term, defendant was sentenced to eighteen years incarceration, subject to an eighty-five-percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2 (NERA) for robbery, and one and one-half years incarceration for resisting arrest, to run concurrent to the sentence imposed for robbery. Applicable fines and penalties were also ordered.
Defendant appeals his conviction and sentence arguing:
POINT I. FAILURE TO INSTRUCT THE JURY SPECIFICALLY AS TO THE INAPPLICABILITY OF "AFTERTHOUGHT ROBBERY" VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL MANDATING REVERSAL AND REMAND. (PARTIALLY RAISED BELOW).
POINT II. THE TRIAL COURT FAILED TO GRANT [DEFENDANT'S] APPLICATION FOR A MISTRIAL BASED UPON THE COMPLAINANT'S INAPPROPRIATE AND IMPERMISSIBLE TESTIMONY ABOUT AN ALLEGED PRIOR ATTEMPTED ROBBERY ATTRIBUTED TO [DEFENDANT] IN NEW YORK.
POINT III. REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DURING SUMMATION DENIED [DEFENDANT] HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL FREE FROM TAINT AND INFLAMED PASSIONS OF THE JURY DEPRIVING THE DEFENDANT OF A FAIR TRIAL. U.S. Const. Amends. V, VI, XIV; N.J. Const. Art. I, ¶¶ 1, 10. (NOT RAISED BELOW).
POINT IV. A REMAND FOR FURTHER PROCEEDINGS PURSUANT TO STATE V. PIERCE IS REQUIRED IN THIS MATTER. (NOT RAISED BELOW).
POINT V. THE TRIAL COURT'S IMPOSITION OF EIGHTEEN YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED. ADDITIONALLY, THE COURT IMPOSED AN ILLEGALLY LONG PERIOD OF PAROLE SUPERVISION. (NOT RAISED BELOW).
The following facts are taken from the trial testimony of the State's witnesses. On January 3, 2005, Mr. Mauricio Thiebaud, a 63 year-old employee of World Wide Wholesale Trading, Inc. (World Wide), traveled from Bronx, New York to a tobacco wholesaler known as Pine Lesser & Company (PL&C) in Clifton. Because World Wide agreed to purchase tobacco products in cash, Thiebaud frequently carried large sums of money when he made purchases from PL&C. On this date, Thiebaud was carrying $22,000.
Thiebaud arrived at PL&C and pulled into the driveway. He looked around and saw defendant, who was wearing a gray sweatshirt and jeans, pacing back and forth on Lakeview Avenue beyond the PL&C entrance. Thiebaud waited two minutes then exited his van. Without saying a word, defendant approached Thiebaud and punched him in the face. Defendant continued hitting Thiebaud about the head and ribs. When Thiebaud dropped the money bag he was carrying, defendant grabbed the money, ran toward the street and was picked-up by an approaching gray four-door vehicle with Pennsylvania license plates. Thiebaud ran toward the car and scratched it with a box cutter. Thiebaud saw another man waiting across the street by a green van, who he believed saw the entire incident, but did not come to his aid.
Benjamin Ocampo also witnessed the incident, as he sat in his van across the street from PL&C. Ocampo alerted the police and followed the gray car as it drove away. Initially, a green van with Pennsylvania plates impeded Ocampo's pathway. Ocampo drove around the green vehicle and looked for the gray car. He drove around the block and saw the car had stopped. Ocampo watched the two male occupants exit the car and begin walking. The driver of the gray car, later identified as Toribio, was apprehended by police. Defendant kept walking. When defendant was approached by Officer Napoleone, he took off on foot.
Thereafter, defendant was cornered and arrested. The search of defendant's person, incident to arrest, revealed a plastic bag of money stuffed into his waistband.
Ocampo identified defendant as the man who attacked Thiebaud. Also, Thiebaud identified: (1) Toribio as "one of the guys" involved in the incident; (2) the car defendant entered as he left PL&C; (3) the money found on defendant as World Wide's funds; and (4) defendant as his attacker.
When apprehended, defendant was wearing a dark pullover with the word "Brooklyn" across the front. This shirt and a gray hooded sweatshirt were included in the police property inventory when defendant was jailed. Additionally, included among defendant's possessions was a single key.
Defendant testified on his own behalf. He stated he approached Thiebaud to speak to him regarding repayment of a debt owed to Toribio. Toribio offered to pay defendant $1,500 for his assistance. Also, Toribio gave defendant a key to Thiebaud's truck, and told him to "use this if he locks himself in the truck." Defendant explained he often aided others in this way "to help them with their problems."
As defendant "approached [Thiebaud] to speak to him," he stated Thiebaud pulled a "knife" from his back pocket. Defendant admitted he punched Thiebaud in the head "a few times." Defendant testified he struck Thiebaud in self-defense and continued hitting him until he was "no longer a threat." It was then that defendant noticed two clear bags of money had fallen from the plastic bag Thiebaud held. Defendant grabbed the larger of the two bundles and ran to Toribio's car. When defendant looked back, he saw Thiebaud coming at him with the "knife" in his hand. Defendant saw Thiebaud scratch Toribio's car with the weapon.
Defendant stated he had no intention of using force to obtain payment of Toribio's debt, and he had no idea Thiebaud was carrying tens of thousands of dollars. Defendant admitted he ran from the police "because they all had their guns out and they were like 'freeze.'" Defendant also stated he put the money in the pocket of his hooded sweatshirt, which he threw to the ground as he fled.
Defendant's first argument on appeal seeks to overturn his conviction for robbery because the jury was not properly instructed. Defendant states if he did not formulate the intent to steal until after the conclusion of the physical altercation, as a matter of law, he could not be guilty of robbery. Defendant asserts the blows to Thiebaud were justified to prevent him from being harmed. When Thiebaud stopped his attack, defendant caught sight of the bundle of money, which he took. He argues the "centerpiece of [his] defense" based upon the "unique facts of this case[,]" present an "'afterthought' robbery -- the situation in which a defendant does not formulate the intent to steal until after force is used[,]" which does not satisfy the requisites of N.J.S.A. 2C:15-1(a). See State v. Lopez, 187 N.J. 91, 93 (2006).
Erroneous jury instructions on material issues are usually presumed to be reversible error, State v. Crisantos, 102 N.J. 265, 273 (1986), as "[e]rroneous instructions are poor candidates for rehabilitation as harmless [error]." State v. Afanador, 151 N.J. 41, 54 (1997). When evaluating the propriety of a jury charge, however, we do "not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole." State v. Freeman, 64 N.J. 66, 69 (1973).
In Lopez, supra, the Supreme Court instructed that N.J.S.A. 2C:15-1(a) does not encompass afterthought robbery. 187 N.J. at 93. The Court cited to the commentary to the Model Penal Code (MPC) upon which our statute is bottomed, stating:
The commentary states that "the core of the robbery offense is the combination of theft and the fact or threat of immediate injury," and that robbery "is committed if the required special circumstances [the threat of or actual injury] exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission." Model Penal Code & Commentaries, Part II § 222.1 at 98-99 (emphasis added). That language evidences an objective on the part of the MPC drafters to punish those who use force at any time after forming the intent to commit a theft. See 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(e) (2d ed. 2003) (suggesting MPC and statutes based on MPC would not recognize afterthought robbery). [Lopez, supra, 187 N.J. at 98-99.]
We note this matter was tried approximately six months prior to the Supreme Court's decision in Lopez. Nevertheless, the trial judge would have had the benefit of our opinion reversing Lopez's robbery conviction. This court held the jury instructions used by the trial court improperly allowed the jury to conclude that an afterthought robbery was encompassed within N.J.S.A. 2C:15-1(a). See State v. Lopez, 378 N.J. Super. 521, 532 (App. Div. 2005), aff'd, 187 N.J. 91 (2006).
The jury charge used by the trial judge in Lopez was as follows:
If you find that the circumstances of the alleged robbery reveal that the defendant intended to permanently deprive the owner of his property and the taking was--was accomplished in part by the prior knowing use of force by the defendant, then it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the intent to steal and the use or threat of force can be found as constituting a single transaction.
If you find that after the incident involving the alleged use of force between Luis Rendon and the defendant Jose Lopez had ended, and you find the defendant then formed the intent to permanently deprive Luis Rendon of his property and remove property from the person of Luis Rendon, then you should consider whether the defendant is guilty of the lesser included offense of theft, which I shall hereafter explain. [Lopez, supra, 187 N.J. at 94-95.]
Defendant argues the trial court similarly issued a flawed jury instruction in this matter and the error produced an unjust result, warranting reversal. State v. Parsons, 270 N.J. Super. 213, 224-25 (App. Div. 1994). During the charge conference, the following colloquy occurred with respect to the proper charge related to count two of the indictment:
[THE COURT]: Before I leave [r]obbery, is there any request for a lesser included on robbery?
[DEFENSE COUNSEL]: Yes, Judge, I do.
[THE COURT]: What's that?
[DEFENSE COUNSEL]: I was going to ask Your Honor to charge the model jury charge. The one I got off the computer says revised 4/14/03 and it talks about a person is guilty of theft if they unlawfully take or exercise unlawful control over the movable property of another with the purpose to deprive that person of that property.
[THE COURT]: Right. What's the State's position about the lesser included?
[PROSECUTOR]: Well, Judge, on this factual background . . . particularly the defendant's own testimony, he made it clear he beat the man; I used force on him, then I stole the money. I don't know how we get to the lesser included.
[THE COURT]: But he's saying that he beat the man because he had to defend himself; the man was coming at him with a knife and that's what prompted the beating. And then he admits to stealing the money.
Frankly, it seems to me that the approach of the defendant is that I'm guilty of theft and not robbery . . . that's just my own characterization. I may be wrong on that. But you could very much, seems to me, look at the defendant's testimony and say that's what this is about, theft.
There's no question about the amount; he says there were thousands of dollars there. We know it's less than seventy-five thousand dollars. So we're not dealing with . . . degree. So it seems to me that . . . that you're going to ask for self-defense.
[DEFENSE COUNSEL]: Yes.
[THE COURT]: So the defense is going to say where the force was used, that was justifiably used and what we're left with is theft, if that.
[DEFENSE COUNSEL]: That's correct.
When charging the jury, the trial judge recited the model charges for second-degree robbery and theft of moveable property. See Model Jury Charge (Criminal), "Robbery in the Second Degree" (2005) and "Theft of Moveable Property" (2003).
He clearly stated the State must prove that the use of force must occur in the course of committing a theft. Additionally, the court stated the model charge for justification. See Model Jury Charge (Criminal), "Justification-Self Defense In Self Protection" (2000).
Here, defense counsel did not object to the charge as given. Thus, our review is guided by the plain error standard. State v. Torres, 183 N.J. 554, 564 (2005). In the context of an unchallenged jury charge, "plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Further, any alleged error must be evaluated in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
In this matter, the charge given by the court was the charge specifically sought by the defense. Accordingly, in order for us to reverse on this point, we would not only have to find plain error, but would have to reverse in the face of invited error. "Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 296 (App. Div. 1993). "[U]nder the invited error doctrine the particular mistake belatedly recognized on appeal must 'cut mortally into the substantive rights' of the appellant to warrant a reversal." Ibid. (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).
Based on our review, we agree with the State that the theory of "afterthought robbery" was not presented at trial. The trial strategy employed was self-defense, which was charged as sought, not afterthought robbery, which was neither charged nor suggested.
Nevertheless, an examination of the jury charge reveals the jury charge appropriately and adequately balanced the facts presented by the State and the defense with instructions regarding robbery, theft and self-defense. Defendant admitted the theft. The issue for determination was whether the assault upon Thiebaud occurred to effectuate the theft, as proffered by the State, or was the assault a result of defendant's need to protect himself from harm, as he testified. The charge made clear defendant's theory that the two events were separate. Unlike the charge used in Lopez, there was no suggestion that the use of force could occur before or following intent to commit the theft. Lopez, supra, 187 N.J. at 94-95. Reading this charge as a whole, State v. Marshall, 123 N.J. 1, 135-36 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993), we conclude the jury could not have been confused by the instructions given.
Further, assessing the evidence, the State not only presented the victim's testimony, but also the testimony of an independent eyewitness, Ocampo, who saw defendant attack Thiebaud. The jury apparently credited the testimony of the State's witnesses rather than that offered by defendant. We conclude no basis for reversal is presented.
Next, defendant asserts his motion for mistrial was improperly denied. In his initial police statement, Thiebaud stated defendant "looked like a man who had attempted to rob me six weeks ago in Bronx, New York. I . . . dismissed my suspicions because there are a lot of people who look alike." The statement further contained Thiebaud's comment, "When he robbed me, he was wearing a light gray sweatshirt. It was at this point that I realized that my earlier suspicion about the party trying to rob me six weeks ago was confirmed." Prior to trial, the court ruled Thiebaud could not reference his belief that defendant was involved in the Bronx robbery attempt.
During cross-examination, Eduardo Mayor, the son of World Wide's owner, was asked about prior robberies while Thiebaud made deliveries for World Wide. The inquiry challenged Mayor's testimony that Thiebaud was "a trusted employee." Defendant sought to raise a question as to why the robberies occurred when Thiebaud made purchases and suggested his involvement in the thefts. However, defendant continued to object to any mention of Thiebaud's identification of defendant as the perpetrator of the Bronx robbery. Outside the presence of the jury, the trial judge conducted an extensive examination of defense counsel and defendant regarding this strategic line of questioning, in light of his prior ruling to exclude all evidence of past robberies.
With the aid of an interpreter, the court instructed Thiebaud not to state he recognized defendant from the Bronx incident when he saw him in front of the PL&C. At trial, Thiebaud was asked about the prior robbery attempts while working for World Wide. He then discussed the instant robbery outside PL&C. Next, the State sought Thiebaud's identification of the clothing worn by defendant. This colloquy followed:
Q: Okay. The man who robbed you, do you remember what type or color of shirt he was wearing.
A: Yes. He was wearing jeans and a light gray pullover.
Q: I'd like to show you something; and tell me Mr. Thiebaud, if this looks familiar to you. What I'm showing you is the exhibit that we've marked S-16. Do you recognize it?
A: That's the same pullover, yes. I recognize it twice, once in New York and once in Pine Lesser.
[DEFENSE COUNSEL]: Objection, your Honor. Objection, your Honor. I ask to be heard.
THE COURT: You want to ask your next question?
A: That's the same one - -
Q: Outside of Pine Lesser?
A: Yes, yes, when I was attacked outside of Pine Lesser.
After the exchange, defendant moved for a mistrial arguing the State impermissibly introduced other crimes evidence. The judge stated:
Well, what the jury has heard, if they make the connection -- and I think they could reasonably make this connection -- is that Mr. Thiebaud is suggesting that that's the same sweat shirt that was worn or it was the one like it that was worn weeks earlier when there was an attempt to rob him in New York on Webster Avenue. It seems to me that the jury might come to this conclusion.
Of course they don't know yet if [Thiebaud] identified the defendant . . . as the person who was involved in that earlier incident . . . .
[I]'m sure I indicated for the record that . . . the State didn't need this other crimes evidence in the case. Frankly, if this were a case where the evidence were not so overwhelming . . . on the merits I would have allowed the State [to use the evidence], because I think it clearly qualifies as other crimes evidence.
I'm not inclined to grant a mistrial in the case for obvious reasons. These prior [robbery] incidents wouldn't be in the case if the defense didn't want them to come in in a very dicey kind of way for a State to manage its evidence.
We're dealing with a witness who's not speaking in his first language and who is a victim of a very traumatic event and who we know believes -- he thinks that this person who attacked him on this occasion is the same person that tried to get him . . . some weeks before over on Webster Avenue.
So it is problematic to expect the State would be able to pull this off. The State did everything it could -- even had the [witness] instructed right here on the record in open court . . . . But it is not grounds for a mistrial at this posture of the case . . . .
The defense rejected any suggestion for a curative instruction, as it would draw more attention to the comment. The trial judge obliged.
We concur with Judge Marmo's analysis and agree that when viewing the evidence presented by the State and examining the witness's isolated, inadvertent statement, manifest injustice would not result from continuation of the trial. State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). We reject the argument that Thiebaud's statement was sufficient to lead the jury to a result it otherwise might not have reached. Macon, supra, 57 N.J. at 336.
Defendant also asserts prosecutorial misconduct during summation. Citing instances identified as statements that inflamed the jury's emotions, referenced facts not in evidence, vouched for the State witnesses and used personal attacks against defendant, defendant argues the State employed improper means to obtain a conviction.
"[P]rosecuting attorneys, within reasonable limit[s], are afforded considerable leeway in making opening statements and summations." State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). In our review, we reverse only if a prosecutor's actions are "so egregious as to work as a deprivation of defendant's rights[,]" State v. Pennington, 119 N.J. 547, 566 (1990), after examining the alleged comments as a whole and in the context of the record. State v. Morton, 155 N.J. 383, 419-20 (1998); State v. Engle, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). We set forth each claimed impropriety.
First, when discussing the events coincident to the robbery, the prosecutor mentioned the man in the green van that did not help Thiebaud, and blocked the path of Ocampo's car. Describing the robbery as an "inside job" because defendant had the key to Thiebaud's car, the prosecutor stated: "The disgusting part is there was somebody at . . . World Wide who set this poor man up and that person is not going to be held accountable. That's the sad part. We can't control that. We can't do anything about it." Defendant maintains this statement "suggested a perpetrator would go unpunished[, which] was an impermissible attempt to enrage the jury's fundamental sense of justice . . . " In this regard, defendant also cites comments that the victim was a "poor man" and an "old man," which he argues had the "incendiary nature" of appealing to the jury's emotions.
The second area of alleged impermissible statements stems from a remark that since the robbery occurred at one o'clock in the afternoon, there "were probably half a dozen, a dozen people who saw this," but only Ocampo came forward. No evidence supported that other witnesses existed who declined to come forward. The comment inappropriately suggested others would have supported the State's case.
Third, comments vouching for the credibility of the State's witnesses and pejorative comments aimed at defendant are identified. Ocampo was called "the salt of the earth" and both he and Thiebaud were called "heroes." On the other hand, defendant was suggested to be "the only person . . . with a reason to lie."
Finally, defendant objects to statements focusing on defendant's incarceration. Reminding the jury that Thiebaud's van key was an item included "when you inventoried [defendant] when he came to the county jail." And, that everything was picked up "except, of course, for the clothing" implying defendant remained in jail. As stated, these references to defendant's incarceration purportedly telegraphed his guilt.
We find most of these comments innocuous. And although we agree the suggestion regarding other witnesses was unfounded and better left unsaid, allowing the remark was not plain error. After consideration of defendant's arguments, we conclude that no statement individually or the combination of these statements, when viewed in the context of the total summation, were so egregious as to deny defendant a fair trial and constitute plain error. Pennington, supra, 119 N.J. at 566; Macon, supra, 57 N.J. at 336.
The last challenge presented seeks a remand for resentencing. Defendant asserts his sentence, which included a discretionary extended term as a persistent offender, violated the pronouncements of State v. Pierce, 188 N.J. 155, 172-74 (2006), and also was excessive.
In light of the constitutional restrictions on judicial factfinding when imposing sentence, specifically enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), the New Jersey Supreme Court examined the scope of permissible judicial factfinding when imposing a discretionary extended sentence in Pierce, supra, 188 N.J. at 168. The Court explained the finding that there exists a "need for protection of the public," must only be made when weighing the aggravating and mitigating factors presented, following a determination that a defendant, in fact, meets the statutory criteria for an extended sentence. Ibid.
We find no fault with Judge Marmo's conclusion that defendant was statutorily eligible to be sentenced as a persistent offender defined by N.J.S.A. 2C:44-3(a). The court's further determination as to the length of the sentence was completed following a proper analysis of aggravating factors three, six, nine and twelve, and the nonexistent mitigating factors. Pierce, supra, 188 N.J. at 171. Contrary to the suggestion sought to be drawn by defendant, Judge Marmo did not incorporate a finding of "need to protect the public" as a basis for concluding defendant qualified as a persistent offender. His discretion was properly exercised.
The State does not oppose the modification of the period of parole supervision, reducing it from five years to three years, as provided by N.J.S.A. 2C:43-7.2(c). The degree of the crime, not the range of sentence, determines the length of the parole supervision term. State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). Other than this modification, the sentence in all other respects must be sustained.
Affirmed except for a remand to correct the Judgment of Conviction stating the period of parole supervision upon release.
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