July 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL LOWMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2008
Before Judges Yannotti and LeWinn.
Defendant Michael Lowman was tried to a jury, which found him guilty of first-degree robbery, contrary to N.J.S.A. 2C:15-1. On May 5, 2006, the court sentenced defendant to a fifteen- year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals, challenging his conviction and sentence. We affirm.
Defendant was charged under Essex County Indictment No. 05-11-2629 with conspiracy to commit robbery, second degree, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count one); robbery, first degree, N.J.S.A. 2C:15-1 (count two); making terroristic threats, third degree, N.J.S.A. 2C:12-3a (counts three and four); and hindering his own apprehension, fourth degree, N.J.S.A. 2C:29-3b(4) (count five). Prior to trial, the court granted the State's motion to dismiss counts one, three, and four. In addition, the court granted defendant's motion to dismiss count five. Defendant was tried to a jury on count two.
At trial, Al-Tariq Purdie testified that on the evening of April 4, 2005, he was in "the chicken shack" at Halstead and Central Avenues in the City of East Orange. Purdie heard a lady screaming and looked out the window. Purdie said that a man tried to "snatch" a pocketbook from a woman. Purdie identified the man as defendant. He observed defendant dragging the woman by her purse.
Purdie jumped up, ran out, and started to chase defendant, who dragged the woman from the bus stop "halfway to the corner." The woman let go of her purse. Purdie chased defendant. Defendant threw the pocketbook at Purdie and continued running. Purdie caught up with defendant and started punching him. According to Purdie, defendant told him, "[b]ack up before I shoot you."
Purdie testified that defendant put his hand under his shirt and pointed at him. Purdie said that defendant acted "like he had a gun." Defendant started to run backwards when the police arrived and apprehended him.
Officer Richard McGowan of the East Orange Police Department (EOPD) testified that, at approximately 8:15 p.m. on April 4, 2005, he was in a marked patrol vehicle at an accident scene on Central Avenue and Evergreen Place. Officers R. Correia and Marcos Rodriguez were with McGowan. McGowan said that he observed a group of males running on Central Avenue. He directed Correia and Rodriguez to go in the direction from which the persons were running. McGowan and another officer went "after the people [who] were running."
McGowan caught up with the individuals in a parking lot. Another officer "put out on the radio that there was a female [who had been] robbed of her pocketbook on Central Avenue."
McGowan said that the woman had given the officer a description of the person who took her purse. According to McGowan, one of the individuals he had detained in the parking lot fit the description "to a T."
McGowan identified defendant as that person. He said that the other persons detained had identified defendant as the perpetrator of the robbery. In addition, the victim was brought to the parking lot and she identified defendant as the person who took her pocketbook.
Olubola Akinkunle testified that, on April 4, 2005, at around 8:00 or 8:30 p.m., she was on Central Avenue in East Orange waiting at a bus stop. She explained that she had taken bus #94 from Irvington, where she worked, and got off of that bus on Central Avenue to catch bus #24 to go to Orange where she lived. Akinkunle said that, when she got off of "the 94," she noticed "this gentleman" standing behind her. Akinkunle identified defendant as the person who was standing near her at the bus stop. Akinkunle said that she was "minding" her own business. After waiting about five minutes, Akinkunle asked defendant whether he had seen the #24 bus go by. Defendant replied that the bus had just passed but another bus would be there "very soon."
Akinkunle testified that she recognized defendant because she used to see him "around there" begging for change. She stated that, previously, she had never had a problem with defendant. Akinkunle went into a liquor store and purchased some candy. Akinkunle came out and returned to the bus stop to wait for the bus. Defendant was still there. Akinkunle saw the #24 bus approaching. She took her bus card out of her pocketbook. Defendant was standing very close to her.
The bus pulled up to the curb. Akinkunle started to get onto the bus when defendant began to grab her pocketbook. Akinkunle held onto her purse. She fell to the ground and defendant dragged her. She stated that defendant "kept dragging the purse, dragging the purse, dragging the purse." Akinkunle was shocked. She said that initially she could not scream; however, when defendant got away with her purse, she screamed.
Akinkunle stated that defendant ran away and several persons ran after him. Later, she was approached by a police officer and she gave the officer a description of the person who had taken her purse. She explained that the officer brought her to a place on Halstead Street, where she identified defendant as the perpetrator.
Akinkunle was taken to the police station where she gave the police a statement. At the police station, Akinkunle was shown a photograph. Akinkunle identified the person in the photo as defendant. She said that he was the person who stole her pocketbook and dragged her in the street.
Officer Rodriguez testified that he was on routine patrol on the evening of April 4, 2005. At around 8:15 p.m., Rodriguez observed several individuals running westbound from the intersection of Halstead and Central Avenues in East Orange. Rodriguez went to the corner and he was flagged down "by a young lady." She told him that she had been waiting for a bus with another person and she was getting ready to board the bus when someone "yanked her purse and tried to yank it from her."
Rodriguez said that the lady told him that the strap of her purse got stuck and the individual who was trying to take the purse started to drag her on the ground. The lady provided him with a description, which he immediately "placed over the air[.]" McGowan informed him that the police had detained certain suspects. Rodriguez "grabbed the victim," and drove her in his patrol car to the place where McGowan had detained the suspects. The victim identified defendant as the perpetrator.
Defendant elected not to testify at trial. He did not call any witnesses on his behalf. As stated previously, the jury found defendant guilty of first-degree robbery.
In this appeal, defendant challenges his conviction and sentence. His counsel raises the following contentions for our consideration:
POINT I: THE JURY INSTRUCTION ON ARMED ROBBERY OMITTED THE MENTAL STATE OF "KNOWINGLY" WITH RESPECT TO THE ELEMENT OF SIMULATION OF A WEAPON BY WORDS AND GESTURES -- A CRITICAL ERROR WHERE THE JURY COULD HAVE DOUBTED WHETHER THEY HAD TO FIND THAT THE DEFENDANT KNOWINGLY OR PURPOSELY SIMULATED THE POSSESSION OF A WEAPON (Not raised below).
POINT II: THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.
In addition, defendant has filed a pro se supplemental brief in which he raises the following arguments:
POINT I: THE TRIAL COURT ERRONEOUSLY CONVICTED APPELLANT-DEFENDANT OF FIRST DEGREE ROBBERY BASED ON THE SUBJECTIVE REACTION OF A CLAIMANT AFTER THE FACT -- NOT THE VICTIM -- WHICH IS CONTRARY TO LAW.
POINT II: THE TRIAL COURT ERRED IN THE VERDICT SHEET AND JURY INSTRUCTION WHEN CONFLATING ISSUES OF FLIGHT, ROBBERY, WITNESS [AND] VICTIM, TO PERMIT THE ELEVATION OF THE DEGREE OF [THE] OFFENSE, WITHOUT SPECIFICITY BY THE JURY, AND AGAINST THE STRICT WORDING OF THE STATUTE.
POINT III: THE RE-INSTRUCTION GIVEN TO THE JURY AFTER THEIR START OF DELIBERATIONS REGARDING "UNANIMITY", WHICH WAS REQUIRED FOR THE [INTERROGATORY] "1A" ON THE VERDICT SHEET, WAS INSUFFICIENT AND DEFECTIVE, REQUIRING REVERSAL OF THE CONVICTION.
POINT IV: THE STATE'S CHANGING OF THE THEORY OF [ITS] CASE, BY WAY OF DISMISSAL OF OTHER SEPARATE OFFENSES/COUNTS IN ORDER TO ELEVATE THE "THEFT" CONSTITUTED A VIOLATION OF LAW AND DUE PROCESS.
POINT V: THE TRIAL COURT'S FAILURE TO CHARGE AND INSTRUCT THE LESSER OFFENSE OF SIMPLE "THEFT -- [N.J.S.A.] 2C:20-2" WAS ERROR AND VIOLATED APPELLANT'S RIGHTS.
POINT VI: DUE TO THE APPELLANT'S OBVIOUS COGNITIVE DEFICIT, A PSYCHOLOGICAL DEFENSE SHOULD HAVE BEEN INTERPOSED AND VIGOROUSLY PURSUED -- ALSO, THE APPELLANT'S MENTAL STATE AT THE TIME DEPRIVED HIM OF THE ABILITY TO KNOWINGLY [AND INTELLIGENTLY] REJECT A PLEA BARGAIN AND ASSIST IN HIS DEFENSE IN TOTO; IT SHOULD HAVE ALSO BEEN USED AS A MITIGATING FACTOR.
POINT VIII: THE CUMULATIVE EFFECT OF ERRORS IN THIS CASE REQUIRES THAT THE COURT REVERSE THE CONVICTION AND [REMAND THE MATTER] FOR [A NEW] TRIAL.
We turn first to defendant's contention that the trial judge erred when instructing the jury on the elements of first-degree robbery. The Code of Criminal Justice provides that a person is guilty of robbery when, during the course of committing a theft, the person "[i]nflicts bodily injury or uses force upon another; or 2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1a. An act is considered to have been "in the course of committing a theft" if "it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Ibid.
A person is guilty of robbery in the first-degree if, when committing the theft, the person "attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. The Code defines "deadly weapon" to mean,
[a]ny firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.] [N.J.S.A. 2C:11-1c.]
The victim "need not see a tangible concealed object[.]" State v. Chapman, 187 N.J. 275, 290 (2006). "[T]he combination of words and a defendant's gesture can establish the reasonable impression that the defendant possesses a deadly weapon." Ibid.
In this case, the judge charged the jury that, in order for it to find defendant guilty of robbery, the State must prove, beyond a reasonable doubt, all of the following:
[o]ne, that the defendant was in the course of committing a theft; and two, that while in the course of committing that theft, the defendant knowingly inflicted bodily injury or used force upon another.
Now, as I've said, the State must prove beyond a reasonable doubt that defendant was in the course of committing a theft. In this connection, you are advised that an act is considered to be "in the course of committing a theft" if it occurs in an attempt to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission.
"Theft" is defined as the unlawful taking or exercise of unlawful control over property of another with a purpose to deprive, in this case[,] her, of that property.
The judge then instructed the jury regarding the meaning of the terms "with purpose" and "purposely." The judge stated:
Now, I've used the phrase "with purpose[.]" You may hear me use that phrase or the word[.] "purposely" again. Let me explain to you what that means.
A person acts purposely with respect to the nature of his conduct or as a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.
A person acts purposely with respect to attendant circumstances if he's aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose[,]", "designed[,]", "with design" or equivalent terms have the same meaning.
Ladies and Gentlemen, purpose is a state of mind that cannot be seen and can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary that the State produce witnesses to testify that a defendant said that he purposely did something. His purpose may be gathered from his acts and conduct, from all he said and did at the particular time and place and from all the surrounding circumstances reflected in the testimony and adduced at trial.
The judge additionally explained to the jury the difference between robbery in the second degree and robbery in the first degree:
Ladies and Gentlemen, a section of our statute provides that a robbery is a crime of the second degree, except that it is a crime of the first degree if the robber is armed with or uses or threatens the immediate use of a deadly weapon. In this case, it is alleged that defendant did not actually possess a deadly weapon, but instead threatened the immediate use of such a weapon and engaged in conduct or gestures . . . which would lead a reasonable person to believe defendant possessed such a weapon.
First, let me explain to you what a "deadly weapon" is. A "deadly weapon" is any firearm or other weapon, device, instrument, material or substance which, in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury, or which, in the manner it is fashioned, would [lead] the victim reasonably to believe it to be capable of producing death or serious bodily injury.
"To simulate" means to assume the outward qualities or appearance of, often with the intent to deceive. It is a feigned, intended act usually to mislead or deceive.
Now, the State does not have to prove that defendant actually possessed a real deadly weapon. Rather, the State must prove beyond a reasonable doubt that the defendant led Mr. Purdie to reasonably believe, by words and conduct or gestures, that the defendant possessed such a deadly weapon.
Defense counsel did not object to the judge's instructions. However, on appeal, defendant argues that the judge erred by failing to instruct the jury that defendant "knowingly or purposely" simulated the possession of a weapon.
In State v. Nero, N.J. (2008), the defendant raised essentially the same argument that defendant raises in this appeal. Nero was charged with the robberies of Rakema Nelson and Travell Zimmerman in a convenience store and restaurant in Paterson. Id. at (slip op. at 3). Nelson was waiting on line. Nelson had a small purse around her arm. Ibid.
Nero entered the restaurant and asked Nelson what she had in her purse. Ibid. Nelson tried to ignore Nero but he put his hand on the strap of the purse and said that he was going to "'take [her] shit.'" Ibid. According to Nelson, Nero would not let go of her purse. Ibid. Nelson testified that Nero motioned to his waistband and asked if she knew what he had. Id. at ___ (slip op. at 3-4).
Zimmerman intervened and told Nero to leave. Id. at ____ (slip op. at 4). Nero said that he would also take Zimmerman's purse. Ibid. They started to fight. Ibid. The fight escalated and Nelson joined in. Ibid. Nero punched Zimmerman twice. Nelson and Zimmerman fled the restaurant and called the police from their car, which was parked in the restaurant's parking lot. Ibid.
Defendant was charged with the first-degree robbery of Nelson, contrary to N.J.S.A. 2C:15-1a and 1b, and the second-degree robbery of Zimmerman, contrary to N.J.S.A. 2C:15-1a. Id. at (slip op. at 5). Defendant was tried to a jury. The trial judge instructed the jury that the State had to prove all of the elements of the offense beyond a reasonable doubt. Id. at ___ (slip op. at 6). The judge told the jury that the State had to prove that the defendant acted purposely. Ibid.
The judge also charged the jury with the additional elements of first-degree robbery. Id. at (slip op. at 8). The judge commented that the State had alleged that
"the defendant did not actually possess a deadly weapon, but instead threatened the immediate use of such weapon, and engaged in conduct or gestures which simulated possession of a deadly weapon, and which would leave a reasonable person to believe that the defendant possessed such a weapon." [Ibid.]
The judge instructed the jury on the meaning of the phrase "deadly weapon." Ibid. He further instructed the jury on the meaning of the term "simulate." Ibid.
In addition, the judge told the jury that:
"The State does not have to prove that the defendant actually possessed a real deadly weapon, rather the State must prove beyond a reasonable doubt that the defendant led Rakema Nelson to reasonably believe, by words and conduct or gestures, that the defendant possessed such a deadly weapon. It is not sufficient that the defendant only made a threat or a reference to a weapon alone. In other words, the State must prove beyond a reasonable doubt that the defendant not only threatened the . . . immediate use of a deadly weapon, but it must also prove beyond a reasonable doubt that the defendant engaged in conduct or gestures which would lead a reasonable person to believe that the defendant did possess an object, which would constitute a deadly weapon, as I just described it to you.
In this case, the State alleges that the defendant told Rakema Nelson 'give me your shit, while holding his hand in his waist, and stating do you know what I got here?' You must determine whether the State has proven beyond a reasonable doubt that the combination of words and conduct, or words and gestures created a reasonable belief in the victim [that] . . . defendant possessed a deadly weapon capable of causing death or serious bodily injury." [Id. at (slip op. at 8-9).]
Nero did not object to these instructions. He was found guilty on both charges. He appealed and argued that the jury charge was flawed because the judge had not instructed the jury on the mental state required for simulated possession of a weapon. Nero asserted that the error required reversal of his conviction because it constituted plain error. Id. at (slip op. at 9).
We agreed with Nero, reversed his conviction, and remanded the matter for a new trial. State v. Nero, 393 N.J. Super. 316, 326 (App. Div. 2007). The Supreme Court granted the State's petition for certification. State v. Nero, 192 N.J. 296 (2007).
The Supreme Court held that the robbery statute requires a "purposeful" mental state. The Court stated that in respect of a robbery threatening the immediate use of a deadly weapon by simulation, the robbery statute, by its own terms and by the application of common logic, requires that the simulation of a deadly weapon be done "purposely." That is, that "[a] person acts purposely with respect to the nature of his conduct or as a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result[,]" that "[a] person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist[;]" and that "'[w]ith purpose,' 'designed,' 'with design' or equivalent terms have the same meaning." N.J.S.A. 2C:2-2(b)(1).
[Id. at (slip op. at 13-14).]
The Court determined, however, that the charge given to the jury did not constitute plain error because, "when viewed as a whole, the jury charge properly conveyed the notion that the jury had to find that defendant purposely threatened his victim with the immediate use of a deadly -- albeit simulated -- weapon[.]" Id. at (slip op. at 15). The Court considered the charge in light of the State's proofs. Id. at (slip op. at 16-17). The Court concluded that, in light of that evidence, the error in the charge was not plain error under Rule 2:10-2 because it did not have the "clear capacity to bring about an unjust result." Id. at (slip op. at 17).
The same conclusion applies here. The instructions given to the jury in this case are essentially the same as those given to the jury in Nero. Here, as in Nero, defendant did not object to the charge and, therefore, his argument must be addressed under the plain error standard. Thus, reversal is warranted only if the error is "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).
Like the Supreme Court in Nero, we are satisfied that the instructions, when viewed in their entirety, conveyed to the jury that it had to find that defendant "purposely threatened his victim with the immediate use of a deadly -- albeit simulated -- weapon[.]" Id. at (slip op. at 15).
Moreover, we have considered the error in light of "the backdrop of the proofs prsented[.]" Id. at (slip op. at 17). At trial, the State presented testimony by Al-Tariq Purdie, from which a rational jury could find that defendant had engaged in conduct or gestures that would lead a reasonable person to believe that defendant possessed a deadly weapon.
Therefore, we reject defendant's contention that the judge's charge to the jury requires reversal of his conviction.
We turn to defendant's argument that his sentence is excessive. In this case, the trial judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge noted that defendant had no juvenile record but this was his fifth indictable conviction. The judge sentenced defendant to a term of fifteen years, which is the midrange for a first-degree offense. N.J.S.A. 2C:44-1f(1)(b).*fn1
Defendant argues that the trial court abused its discretion and imposed an excessive sentence because the court "improperly triple-counted" his prior criminal record and imposed the maximum term of incarceration for a first-degree crime. We disagree. The evidence before the court fully supports the judge's findings of the three aggravating factors. Those findings do not represent the "triple-counting" of defendant's criminal record. Moreover, contrary to defendant's assertion, the sentence was not the maximum sentence that could be imposed for a first-degree offense.
Therefore, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
As stated previously, defendant raises additional arguments in his pro se supplemental brief.
We note that in Point VI of that brief, defendant argues that, because he suffers from an "obvious cognitive deficit," his trial counsel should have "vigorously" pursued a psychological defense. Defendant also asserts that, because of his "mental state at the time," he could not knowingly and intelligently reject a plea bargain and assist in his defense.
We decline to address these issues because it appears that defendant is asserting claims of ineffective assistance of counsel. The record before us on this appeal provides an insufficient basis to consider these claims. See State v. Preciose, 129 N.J. 451, 460 (1992). If defendant chooses, he may pursue these claims in a petition for post-conviction relief. R. 3:22-2.
We have considered the other contentions raised by defendant in his supplemental brief and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).