July 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DASHON LEE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges Parker and Gilroy.
Defendant Dashon Lee appeals from a judgment of conviction entered on July 28, 2006 after a jury found him guilty of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1 (Count One); and first degree robbery, N.J.S.A. 2C:15-1 (Count Two). After Count One was merged into Count Two, defendant was sentenced to a term of seven years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
The charges against defendant arose out of an incident on November 1, 2005, when Edun Obaze and his cousin Emanuel Inekhomo were walking along the sidewalk on South 16th Avenue in Newark. As Inekhomo realized that they were being followed, someone grabbed Obaze from behind and pulled him backwards. Inekhomo ran and Obaze faced a group of four or five young men, three of whom were armed with handguns. The young men crowded around Obaze and began punching him and pointing the handguns at his neck, chest and abdomen. The young men demanded that Obaze turn over his belongings to them.
Obaze did not want to give up his wallet, which was in his back pocket, because he had his green card and social security card in it. He gave the young men his cell phone from his front pocket, hoping they would be satisfied with it. Nevertheless, the group knocked him to the ground, kicking and dragging him along the ground.
Fortuitously, Newark Police Officers Hussein Sara and Raul Oliveras were patrolling South 16th Avenue at the time Obaze was being attacked. Sara spotted the group of young men he thought were wrestling. The officers observed several of the young men with weapons but could not determine who was the victim.
When Obaze ran from the crowd to the police car shouting: "They robbing me," the young men ran in all directions. Notwithstanding the police presence, defendant attempted to grab Obaze's wallet from his back pocket and was the last to run away. Sara got out of the police car, saw that defendant was holding a silver handgun, and chased him on foot. As they were running, Sara saw defendant throw the weapon over some high bushes.
Meanwhile, Oliveras circled the block in the police car and cut off defendant. The two officers then placed defendant in handcuffs. Sara searched the area behind the high bushes and found the silver handgun, only then realizing that it was a replica.
The officers drove defendant back to the scene of the robbery, where Obaze was waiting with other officers who had arrived at the scene. Approximately three to five minutes after defendant had run from the scene, Obaze identified him as one of the robbers. When the officers searched defendant, they found two cell phones, one of which Obaze identified as his.
At trial, defendant testified that at the time of the incident he was walking on South 16th Avenue when he saw Obaze as he "ran into the group of guys that was out there, and what I seen [sic] was one of the guys grabbed him, grabbed him onto the car, put him on the car . . . . [F]rom what I was seeing, he [Obaze] just threw his hands up in the air, put his hands up in the air." Defendant testified that, "[W]hen I visualized the group of guys at -- over there by the car, that's when I immediately ran down there . . . . [t]o see what was going on." Defendant maintained that he "immediately broke it -- broke the guy up that was robbing the victim." Defendant said that Obaze was screaming and yelling that he didn't have anything and pulled out his cell phone and "gave it to the guy that was robbing him." Defendant claimed that he took the cell phone from the robber and was trying to give it back to Obaze, and that when the robber attempted to run away, defendant grabbed him "so he wouldn't do anything else to [Obaze]."
Defendant testified that when the police arrived, everyone ran away and it was just he and the victim. Defendant claimed: "I went to the police car with the phone in my hand stating to them that I was trying to give the phone back to them. It took them like [fifteen] minutes just for them to get out of the car and realize what was going on." Defendant said he ran away because Oliveras told him to get away from the police car "before I shoot you." That was when defendant "walked off fast." When he walked away, the officer followed him and arrested him. Defendant denied having a gun in his hand when he left the scene or throwing it over bushes as he was being pursued by Sara.
In this appeal, defendant argues:
THIS COURT SHOULD REMAND THE ROBBERY AND CONSPIRACY TO ROB CHARGES FOR RETRIAL BEFORE A JURY PROPERLY INSTRUCTED ON THE LESSER-INCLUDED THEFT OFFENSES
THE ADMISSION OF THE IN-COURT AND OUT-OF-COURT IDENTIFICATIONS OF DEFENDANT DENIED HIM A FAIR TRIAL (Not Raised Below)
Initially, defendant contends that the matter should be remanded for retrial because the court denied his request to charge the jury on lesser-included offenses. The trial court declined to do so, stating:
Clearly this is a theft with force, no matter how you look at it. So I cannot, after the victim testified that three guns were put on him, he was beaten and kicked -- it's either a robbery that this defendant was involved in or he was not involved in it, as his testimony was, but I will not charge theft from the person or receiving stolen property.
Defendant nevertheless maintains that "[w]here the evidence is ambiguous or conflicting enough that it supports alternative theories of liability," the alternative theories should be charged "to allow the jury to choose among them."
Defendant testified that he did not participate in the robbery at all. Thus, the choice for the jurors was whether to believe defendant or the State's witnesses who testified that he did participate in the robbery and had what appeared to be a handgun in his possession. Nothing in the evidence supported defendant's request that the jury be charged on theft or receipt of stolen property.
Defendant relies on State v. Cassady, 396 N.J. Super. 392 (App. Div. 2007), (Fuentes, J.A.D., dissenting), certif. granted, 193 N.J. 587 (2008), in arguing that the lesser-included offenses should have been charged. There, the defendant did not deny that he handed the bank teller a withdrawal slip in the amount of $5,000, told the teller he did not have an account and, when she said she could not give him the money, said, "Please hurry up. I know how to get it." When the teller hesitated, the defendant raised his voice and repeated: "Hurry up. I know how to get it." "He then jumped over a bullet-proof glass barrier and onto the counter on the opposite side." The teller ran to an adjacent room and locked the door. Id. at 395- 96. The defendant "took approximately $2,500 and left the bank." Id. at 396.
The defendant then took a waiting cab to a car dealership where he took a key from the desk of a salesman who was on the telephone. The defendant found the car that matched the key and was attempting to drive it away when the salesman intervened and, after a struggle, retrieved the key. The defendant grabbed the salesman by the shirt and tie but the salesman pulled away. Defendant followed him, demanding the key. They continued to struggle and, by the time the police arrived, the salesman had restrained the defendant. Ibid. The defendant was charged with two counts of second degree robbery.
The salesman, cab driver and several bank tellers identified the defendant at trial. When defense counsel requested a jury charge on lesser-included offenses, the court denied the request. The defendant was convicted as charged.
On appeal, the defendant argued, among other things, that the trial court erred in failing to charge the jury on the lesser-included offenses. The majority of the appellate panel found that although the bank teller testified "that she was afraid that [defendant] would harm her," the "evidence provided a rational basis for the jurors to conclude that defendant's purpose was consistent with his statement and conduct -- to inform the teller that if she did not give him the money he would take it but not to compel her to turn the money over out of fear of immediate bodily injury." Id. at 399. The majority of the panel held that the trial court erred in failing to charge the jury on the lesser-included offenses.
Judge Jose Fuentes dissented, however, noting the applicable standard of review: "A lesser-included offense must be submitted to the jury when there is a 'rational basis' for a conviction of that crime. N.J.S.A. 2C:1-8e; See State v. Mauricio, 117 N.J. 402, 418 (1990). This is a low threshold." Id. at 402. In our view, Judge Fuentes correctly pointed out that "[t]he focus of the analysis is not on the victim, but on the actions and purpose of the defendant. Thus, whether the bank teller felt afraid after defendant's words and actions is not the question . . . . The focus of the robbery is on the conduct of the accused, rather than on the characteristics of the victim." Id. at 403-04. Judge Fuentes emphasized that when fear is the basis of the robbery, "[n]o special words or conduct are required to constitute a threat or to purposely put someone in fear of immediate bodily injury."
State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). Immediate assaultive conduct during the commission or attempted commission of a theft is sufficient to elevate a third-degree theft to a second-degree robbery. State v. Lopez, 187 N.J. 91, 98-99 (2006).
Judge Fuentes further noted that
Unlike a situation where defendant could obtain access to the money without removing its apparent guardian, (such as reaching into an open cash-drawer in a supermarket checkout), defendant here needed both: (1) to overcome the glass partition separating the public and private space in the bank; and (2) to chase away the teller who was standing between him and the bank's money. The conduct was thus unambiguously threatening and palpably egregious. This was a bank robbery: plain and simple. In my view, no rational jury could come to any other conclusion.
[Id. at 404-05.]
We agree with Judge Fuentes' analysis. Nevertheless, this case differs substantially from Cassady.
Here, defendant testified that he did not commit the robbery. He maintained that he came to the victim's assistance. Thus, the jury had only to determine whether they believed defendant or the victim. Under the circumstances, it was not necessary for the jury to determine whether defendant was guilty of a lesser-included crime. The question was whether he was guilty of any crime. The trial judge correctly determined that the evidence did not support charging the jury on the lesser-included offenses as he requested.
Defendant next argues that both the in- and out-of-court identifications deprived him of a fair trial. He claims that when the police took him back to the scene where the victim identified him, it was an improper one-on-one identification, which was compounded by the victim's and police officers' identification of him in the courtroom.
Defendant relies on two cases, which at the time his brief was filed were pending before the Supreme Court. On March 26, 2008, however, State v. Adams and State v. Comer were decided by the Supreme Court in a consolidated opinion. State v. Adams, 194 N.J. 186 (2008). Despite defendant's prediction that the Supreme Court would "outlaw all one-on-one identification procedures," the Court declined to do so.
In that case, the defendants, Adams and Comer, along with another co-defendant, Harrison, "stole a car and committed several armed robberies, one of which resulted in the shooting death of George Paul." Id. at 191. The trio was apprehended and searched, yielding evidence of the robberies. Ibid. The day after the robberies, a gas station attendant was shown "single Polaroid photographs of the three defendants" and immediately identified two of them. Id. at 192. A few days later, another witness was shown a less-than-adequate photo array and the witness identified all three co-defendants. Id. at 193. On that same day, the police showed another witness a single photo of each of the three suspects and the witness identified all three. Id. at 193-94.
The trial court denied defendants' motion to suppress and we affirmed. The Supreme Court rejected defendants' argument that the out-of-court identification procedures were impermissibly suggestive. Id. at 200. The Court then addressed each of the defendant's claims:
In our two-pronged approach to determine the admissibility of an out-of-court identification, the reviewing court must first "'ascertain whether the identification procedure was impermissibly suggestive.'" [State v. Romero, 191 N.J. 59, 76 (2007) (quoting [State v. Herrera, 187 N.J. 493, 503 (2006)]). "What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." [State v. Farrow, 61 N.J. 434, 451 (1972)]. "If the procedure is found to be impermissibly suggestive, the court must then decide 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" Romero, supra, 191 N.J. at 76. We have declared that "'[r]eliability is the linchpin in determining the admissibility of identification testimony.'"
State v. Madison, 109 N.J. 223, 232 (1998) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977). [Id. at 203-04.]
In Manson, the United States Supreme Court articulated the factors to be considered in determining reliability:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977).]
If the trial court finds the identification reliable, it may then be admitted into evidence, irrespective of the less-than-adequate identification procedure. Adams, supra, 194 N.J. at 204.
Here, defendant did not challenge the in- or out-of-court identifications during the trial. Consequently, his argument is subject to the plain error standard. Accordingly, we will only reverse if we find error "clearly capable of producing an unjust result." R. 2:10-2. We do not do so here.
Defendant was apprehended and returned to the scene less than five minutes after the robbery occurred, and the two police officers who had actually observed the robbery in progress saw defendant take flight and followed him. Officer Sara did not lose sight of defendant from the time he left the scene. Consequently, this was not a situation similar to the Adams photo identifications which took place days after the robberies.
Moreover, there was no identification issue because defendant acknowledged his presence at the scene. He testified that he did not participate in the robbery but was helping the victim when the police arrived on the scene. Obviously, the jury chose not to believe him.
We have carefully considered defendant's arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
© 1992-2008 VersusLaw Inc.