July 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROGER MAURICIO GAVARRETTE-PEREZ A/K/A ROGER GAVARRETTE, RODGER M. GAVARRETE, RODGER M. GAVARETEPEREZ, RODGER M. GAVARRETEPEREZ, RODGER M. GAVARRETTE-PEREZ, RODGER M. GAVARRETTE PEREZ, ROGER PEREZ, ROGER G. PEREZ, RODGER PEREZ AND RODGER M. PEREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0840 and 05-11-1236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 2, 2008
Before Judges Lihotz and Simonelli.
A jury convicted defendant Roger Gavarette-Perez of first degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third degree possession of a weapon (nail file) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count two); fourth degree unlawful possession of a weapon (nail file), contrary to N.J.S.A. 2C:39-5d (count three); and fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a (count four). Following the trial, defendant pled guilty under a separate indictment to fourth degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. In exchange for the plea, the State agreed to recommend a nine-month term of imprisonment to run concurrent to the sentence imposed on the conviction.
At sentencing, the judge merged counts two and three into count one and imposed a ten-year term of imprisonment with an eighty-five percent parole ineligibility period.*fn1 The judge also imposed a concurrent nine-month term of imprisonment on count four, a concurrent nine-month term of imprisonment on the separate charge, and the appropriate assessments and penalties.
On appeal, defendant raises the following contentions:
POINT I: THE JUDGE'S WOEFULLY INSUFFICIENT CHARGE ON ACCOMPLICE LIABILITY, WHICH WAS NOT TAILORED TO FACTS OF THE CASE, WHICH FAILED TO CHARGE LESSER-INCLUDED OFFENSES, AND WHICH FAILED TO SPECIFY THE ELEMENTS OF ACCOMPLICE LIABILITY, DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
POINT II: THE COURT ERRED WHEN IT FAILED TO CHARGE THE JURORS, PURSUANT TO STATE V. HARMON [104 N.J. 189 (1986)], THAT IF [DEFENDANT ] ARMED HIMSELF WITH A NAIL FILE AS A PRECAUTION AGAINST AN ATTACK BY ANOTHER, THIS CONSTITUTED A DEFENSE TO THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below)
POINT III: THE PROSECUTOR COMMITTED MISCONDUCT BY DISCREDITING DEFENDANT'S TESTIMONY BASED ON HIS STATUS AS A CRIMINAL DEFENDANT AND BASED ON EXTRA-RECORD INFORMATION, AND BY VOUCHING FOR THE STATE'S WITNESSES' CREDIBILITY BECAUSE IF THEY WERE LYING, THEY WOULD HAVE TOLD A "BETTER STORY." (Partially Raised Below)
POINT IV: THE JUDGE'S INSTRUCTIONS REGARDING DEFENDANT'S STATEMENTS TO THE POLICE WERE INADEQUATE, AS HE: ONLY DISCUSSED THE STATE'S VERSION OF THE FACTS, FAILED TO INSTRUCT JURORS TO DISREGARD THE STATEMENTS IF THEY DEEMED THEM INCREDIBLE, AND FAILED TO DISCUSS THE LANGUAGE BARRIER. (Not Raised Below)
POINT V: DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS COUNSEL FAILED TO RAISE THE ISSUES ADDRESSED IN POINTS I THROUGH IV.
We reject these contentions and affirm.
On May 12, 2007, Ermes Rodriquez (Rodriquez) went to a nightclub in Elizabeth. At approximately 11:30 p.m. he left the club and went to a nearby restaurant. Upon leaving the restaurant, Rodriquez noticed two unknown men approaching him from behind. Rodriguez began walking faster because he saw one of the men holding what he thought was a knife. The two men followed Rodriguez, with one saying in English "to wait and give [me] the money." Rodriguez ran to the club, opened the front door, and told a security guard what was happening.
Officer Michael Niewinski (Niewinski) and Detective David DeRosa (DeRosa) of the City of Elizabeth Police Department were working an "extra duty assignment" at the club and were in full uniform, sitting in an unmarked police car outside the club. At approximately midnight, the officers observed two men running down the street. One of the men, later identified as defendant, appeared to be chasing the other, later identified as Rodriguez. While watching the men, DeRosa saw a silver object in defendant's hand that he thought was a knife. When Rodriguez reached the door of the club, defendant stopped, turned around, and quickly walked away. The officers left their vehicle to see what was going on. Rodriguez said to DeRosa, "that guy just tried robbing me," and pointed in defendant's direction. Defendant then ran from the club.
The officers returned to their vehicle and located defendant on Elizabeth Avenue. DeRosa pulled the vehicle across a driveway, striking defendant and blocking his path. The officers exited the vehicle and ordered defendant to stop, but defendant ran. The officers returned to the vehicle and followed defendant until he ran down an alleyway, where a foot chase ensued. DeRosa saw defendant attempting to jump a fence with what appeared to be a knife in his right hand. DeRosa drew his weapon and ordered defendant to freeze and drop the object. Defendant climbed down from the fence and ran towards Niewinski. DeRosa yelled to Niewinski that defendant was heading toward him and that defendant had a knife.
Niewinski drew his weapon and, in English, ordered defendant to "show me your hands or I'll shoot you[.]" Defendant placed his empty hands in the air. After tackling defendant to the ground and handcuffing him, Niewinski checked the area with a flashlight and found a four to five inch silver nail file approximately five feet from where defendant lay. Two back-up officers brought Rodriguez to the scene, where he identified defendant as the person who tried to rob him.
Defendant was arrested. At police headquarters, all of the booking procedures were conducted in English, and all of defendant's statements were in English. During the booking procedure, defendant told DeRosa that he was homeless and "That's the reason why I rob because I'm hungry and I'm homeless." Defendant denied this at trial.
According to defendant, he was the victim of a robbery two days prior to the incident, which he reported to the police. He claimed that at gunpoint, a group of men took his resident card, his social security card, and his bike. Defendant testified*fn2
that on the night of the incident, he and a friend ran after Rodriguez because he thought Rodriguez was one of the men who robbed him, and because he wanted to recover his paperwork. When defendant saw Rodriguez enter the nightclub, he ran because he thought Rodriguez was getting his friends. When defendant reached Third Street, he saw a blue car, which he did not know was a police car because "[t]hey never started the siren and they never said that they were police." Defendant kept on running because he thought the men in the car were Rodriguez's friends.
Defendant denied he had a knife or nail file in his possession, or that he threatened or demanded anything from Rodriguez. He testified that he had "[a]bsolutely nothing" in his hand, and only said to Rodriguez, "please come and talk to me. . . ." In her summation, defense counsel emphasized that defendant "never had any object in his hand[,]" he was merely trying to talk to Rodriguez, and there was no confrontation between the two men.
Defendant raises several challenges to the jury instructions. First, defendant contends that the trial judge failed to tailor the accomplice liability charge to the facts of the case because the charge did not adequately convey to the jurors that he must be acquitted unless they found that his "conscious object" was to steal from Rodriguez; failed to charge the jury to consider whether his intent was the same as that of his unnamed accomplice; and failed to specify the elements of accomplice liability.
Defense counsel did not object to any of the jury instructions. 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) (citing State v. Cotto, 182 N.J. 316, 326-27 (2005)).
"When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability." State v. Savage, 172 N.J. 374, 388 (2002) (citing State v. Weeks, 107 N.J. 396, 410 (1987)). "[A] jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Ibid. (quoting State v. Fair, 45 N.J. 77, 95 (1965)). Also, the accomplice liability charge must be tailored to the facts of the case. Id. at 389; see also State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996) (holding that the judge must provide the jury with a "detailed explanation of accomplice liability theory tied to the facts[.]").
The judge gave the following charge on accomplice liability:
Now if you find that the defendant did not commit any of these crimes, he may still be found guilty if you find beyond a reasonable doubt that he assisted someone else in committing the crime in question. This is known as accomplice liability. One can be an accomplice to a robbery, to unlawful possession of a weapon, and I'll explain possession to you in a second, possession of a weapon for an unlawful purpose and for resisting arrest.
A person is an accomplice of another person in the commission of a crime when with the purpose of committing or facilitating the commission of that crime that you're considering aids, agrees, attempts to aid such other person in planning or committing them.
He acts purposely. It means that he must act with a purpose to commit the crime that you are considering. Note when he acts as an accomplice he must act with the same purpose of promoting, facilitating the commission of the same offense that you are considering.
Mere presence at or near the scene of a crime 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. It is, however, a circumstance to be considered with other evidence to determine whether he's present as an accomplice.
Presence is not itself conclusive evidence of the fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime committed.
While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the commission of the crime without disproving or opposing it is evidence from which, in connection with the other circumstances, it is possible for you to infer that he assented thereto, lent to it his countenance and approval, therefore aided and abetted in the commission of the crime.
We conclude the charge appropriately and adequately balanced the facts presented by the State and the defense. Under the State's version, both defendant and his accomplice intended to rob Rodriguez; while under defendant's version, he and his accomplice intended only to speak to Rodriguez. Thus, because the facts did not support differing states of minds for defendant and his accomplice, there was no need to discuss the effect of different states of mind between the two men.
Also, the charge also adequately explained each of the elements of accomplice liability. Those elements are that the underlying crime was actually committed; that defendant's purpose was to promote or facilitate the commission of the offense; that defendant solicited the other actor to commit the offense and/or did aid or agree or attempt to aid him in planning or committing the offense; and that defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act. N.J.S.A. 2C:2-6c; State v. Lassiter, 348 N.J. Super. 152, 162-63 (App. Div. 2002).
Second, defendant contends the judge failed to sua sponte charge the lesser-included offenses of aggravated and simple assault. Defense counsel did not dispute the judge's view that this was not a lesser-included offense case. Thus, the plain error standard of review applies to our review of this contention.
To sua sponte charge a jury on aggravated and simple assault, the trial judge had to determine whether the evidence "'clearly indicate[s]'" such offenses. State v. Perry, 124 N.J. 128, 193 (1991) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge "has an independent obligation to instruct [the jury] on lesser-included charges" when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004)). However, the trial judge should "carefully refrain" from sua sponte charging the jury if a charge is directly contrary to the defendant's position at trial, could have prejudiced his chances of being acquitted of the charges in the indictment, and would have forced counsel to have forsaken or altered his chosen strategy. Perry, supra, 124 N.J. at 162; see also State v. Vasquez, 265 N.J. Super. 528, 549 (App. Div.), certif. denied, 134 N.J. 480 (1993).
Defendant was charged with first degree armed robbery. A person is guilty of robbery if, in the course of a theft, he "[t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1a(2). A robbery becomes a first degree offense when the defendant "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. A person is guilty of simple assault if he "[a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a(3). A person is guilty of aggravated assault if he "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon[.]" N.J.S.A. 2C:12-1b(2). Aggravated and simple assault are lesser-included offenses of robbery. State v. Smith, 136 N.J. 245, 249-50 (1994); State v. Carlos, 187 N.J. Super. 406, 417 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).
Our review of the record reveals no facts supporting the lesser-included offenses. More importantly, we are convinced aggravated and simple assault charges were directly contrary to defendant's position at trial that he did not possess a weapon and never threatened or demanded anything from Rodriguez. Thus, the lesser-included offense charges were completely contrary to defendant's position at trial and would have seriously prejudiced defense counsel's strategy.
Third, defendant contends the judge failed to charge the jury, pursuant to State v. Harmon, 104 N.J. 189 (1986), that if defendant armed himself with a nail file as a precautionary or protective measure, this constituted a defense to the charge of possession of a weapon for an unlawful purpose. We disagree.
In Harmon, the Court held that "[i]f an individual's possession of a [weapon] is motivated honestly by a self-protective purpose, then his conscious object and design may remain not to do an unlawful act, and a material element of a [N.J.S.A. 2C:39-4] violation has not been met." Harmon, supra, 104 N.J. at 207. Here, defendant said he did not have a weapon, and the record lacks any evidence that defendant armed himself with a weapon for self-protection.
Fourth, defendant contends that the judge's instructions regarding his statements to the police were inadequate because the judge only discussed the State's version of the facts, and failed to instruct the jurors to disregard the statements if they deemed them incredible. A criminal defendant is entitled to an instruction that jurors must use caution in evaluating testimony concerning out-of-court statements. State v. Kociolek, 23 N.J. 400, 421 (1957) (citation omitted). Further, when the prosecution seeks to introduce a criminal defendant's statement, the trial judge, after determining the admissibility of the statement, must instruct the jury to disregard the statement if it does not find it credible. State v. Hampton, 61 N.J. 250, 271-72 (1972). However, the failure to give a Hampton charge is not reversible error per se. Jordan, supra, 147 N.J. at 425. "It is reversible error only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2.) This same standard applies to the omission of a Kociolek charge. Id. at 428.
The judge charged the jury as follows:
There is for your consideration in this case an oral statement allegedly made by the defendant. It is your function to determine whether or not that statement was actually made and if made whether [such] statement or any portion of it is credible. In considering whether an oral statement was actually made by the defendant and whether it is credible, you should receive, weigh and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer or the ability of the hearer to recall accurately the words used by the defendant. The specific words and the ability to remember them are important to the correct understanding of any oral communication because the presence or absence or change of a single word may substantially change the true meaning of even the shortest sentence. You should, therefore, weigh, consider this type of evidence with caution.
[The] statement here [sic] is a statement allegedly made the night of the arrest at police headquarters that he was homeless and that he robbed people because he had to eat and get food. That was allegedly given in response to not a question by the officer but in response to -- well it was a question but it wasn't interrogation; a pedigree question about where do you live.
In considering whether or not the statement is credible, you should take into consideration the circumstances and the facts as to how a statement was made as well as the other evidence in the case relating to this issue. If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.
Our review of the charge as a whole satisfies us it adequately informed the jury regarding defendant's statement. The judge instructed the jury that it first had to determine whether the statement was actually made, and only then consider the circumstances and facts related to how it was made.
The charge also closely followed the model jury charge. Although the judge omitted a sentence of the model charge, which would have instructed the jury that if they found that defendant did not make the statement, they must disregard it completely, this omission was not "clearly capable of producing an unjust result." The judge's statement to the jury that "you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible" adequately addressed this issue. Also, there was evidence, other than defendant's statement, supporting the guilty verdict.
Finally, with respect to the jury charge, defendant contends that the judge failed to discuss the language barrier in the jury instructions. Defendant fails to cite any authority supporting this contention. Nevertheless, we conclude the charge sufficiently addressed this issue. The judge instructed the jury to consider "the generally recognized risk of misunderstanding by the hearer or the ability of the hearer to recall accurately the words used by the defendant"; to weigh defendant's statements with caution because of the importance of each word and the ability of the hearer to remember what was said; and to consider all of the facts and circumstances surrounding the statements to determine whether they were credible.
Defendant also asserts prosecutorial misconduct during summation. Defense counsel did not object to any of the prosecutor's closing remarks. Defendant now contends that the prosecutor relied on extra-record evidence by stating that defendant clearly understands English because, "This is a man [who] also lived in Alaska before living in New Jersey. I [have] never been to Alaska, but I'm sure there's not a lot of Spanish[-]speaking people in Alaska."
Defendant also contends that the prosecutor discredited his testimony based on his status as a criminal defendant when the prosecutor said:
His story, and I submit to you it is a story, it's totally unbelievable. I think I even wrote down, I took a note. I asked him about if you wanted to go to jail or prison.
Of course he said no because who would. And he said I'll do anything possible not to go to jail. And I submit to you that's exactly what he did that night. He ran from the police. They couldn't catch him. He comes in here and he tells this completely incredible story because he doesn't want to go to jail.
Defendant also contends that the prosecutor improperly vouched for the credibility of the State's witnesses when the prosecutor said:
Officer Niewinski. If a police officer is going to lie and make up a story, why not make up a better story? Officer Niewinski very easily could have come in and said oh yeah, I saw the knife in his hand. I saw the knife the whole time. But did he say that? No. I submit to you that goes to his credibility. If the police were going to make up a story why not make up a better story? Have every ["i"] dotted, every ["t"] crossed. They came in here honest with you. They were forthright about what they remembered and what they saw that night.
Think about who the stakeholders are in this case. Who has something to gain by their testimony and who doesn't. You saw Mr. Ermes Rodriguez. He doesn't know this man from any of us and he said he was positive that night that's the man who had a knife in his hand as he chased him. That's the man who chased [him] down the street.
If Mr. Rodriguez really wanted to pin a crime on him, why wouldn't he also say he's the person that said give me your money?
Stop, give me your money. Did he say that?
No. Mr. Rodriguez clearly said I'm not sure which one said it. I don't know [if] it was him or the taller guy. One of them said stop give me your money and I saw a knife in my hand -- knife in one of their hands. "'[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 deny defendant a fair trial[,]" 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. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). In determining whether a defendant's right to a fair trial has been denied, we consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 323 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42 (1953)).
Once a defendant has testified, a prosecutor may comment on the credibility of his testimony. See Morton supra, 155 N.J. at 457 (holding that the prosecutor's comment that the defendant's testimony was "a self-serving pack of lies" was not reversible error as it was based on reasonable inferences drawn from evidence presented at trial); State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997) (holding that a prosecutor has the right to "call the jury's attention to discrepancies in a defendant's testimony and then argue that the defendant was not truthful," so long as he or she does not express a personal opinion regarding the credibility of the defendant's testimony); State v. Darrien, 255 N.J. Super. 435, 458 (App. Div. 1992) (holding that it is not improper for the prosecutor to comment on the credibility of the defendant's testimony); and State v. Robinson, 157 N.J. Super. 118, 120 (App. Div.), certif. denied, 77 N.J. 484 (1978) (holding that "when a defendant waives his right to remain silent and takes the stand in his own defense, he thereby subjects himself to cross-examination as to the credibility of his story.").
Also, when reviewing comments made by a prosecutor in summation, the court "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" Engel, supra, 249 N.J. Super. at 379 (quoting United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991). Thus, the issue is "whether the prosecutor's invited response, taken in context, unfairly prejudiced" defendant. Ibid. (citing Young, supra, 470 U.S. at 12, 105 S.Ct. at 1044-45, 84 L.Ed. 2d at 10-11). If "the prosecutor's remarks did no more than respond substantially in order to 'right the scale[,]'" then the prosecutor's remarks will not be considered improper. Ibid. (quoting Young, supra, 470 U.S. at 13, 105 S.Ct. at 1045, 84 L.Ed. 2d at 11).
Based upon our review of the comments as a whole in the context of the record, we discern no improprieties that were "clearly capable of producing an unjust result." R. 2:10-2. Although the "Alaska" remark was inappropriate, as it concerned evidence outside the record, other evidence indicated that defendant spoke and understood English. Also, although defendant testified through an interpreter, he answered a question posed in English before the interpreter finished asking it in Spanish, causing the judge's instruction that "You have to wait for the question to be repeated in Spanish unless you want to testify in English."
We also conclude that the prosecutor did not improperly discredit defendant's testimony based on his status as a criminal defendant, or vouch for the credibility of the State's witnesses. Rather, the prosecutor properly commented on the credibility of defendant's testimony, and appropriately responded to defense counsel's attack on the credibility of the State's witnesses.
Finally, we reject defendant's contention that he was deprived of the effective assistance of counsel because counsel failed to address at trial the issues raised in this appeal. Defendant has shown no error. Thus, he cannot show "'that counsel's performance was deficient[,]'" and "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).