August 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAYSON P. THOMPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-06-0766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2008
Before Judges Skillman and LeWinn.
On July 8, 2004, defendant Jayson P. Thompson was indicted along with co-defendant Ryne Usher-Swift on the following charges: first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (counts one and ten); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1) (counts two and eleven); third-degree theft, N.J.S.A. 2C:20-3 (counts three and twelve); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts four and thirteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and fourteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts six and fifteen); second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)(count seven); first-degree carjacking, N.J.S.A. 2C:15-2(a)(2) (count eight); first-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-2(a)(2) (count nine); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count sixteen).
Defendant and Usher-Swift were tried separately.*fn1 Defendant was tried to a jury on May 17, 18, and 19, 2005. At the end of the State's case, the trial judge granted the prosecutor's motion to dismiss counts six, fifteen and sixteen. The jury acquitted defendant on counts four and five, convicted him of second-degree robbery on count one and on all remaining counts as charged.
On June 24, 2005, the trial judge imposed the following sentence: on count eight, seventeen years imprisonment with an eighty-five percent parole disqualifier and a five-year period of parole supervision; on count one, six years imprisonment with an eighty-five percent parole disqualifier and a three-year period of parole supervision, consecutive to count eight; and on counts ten and fourteen, six years imprisonment with an eighty-five percent parole disqualifier, both concurrent to count eight. Sentences on these counts were imposed pursuant to NERA. Counts two and three merged for sentencing purposes into count one. Counts seven, nine and thirteen merged into count eight. Counts eleven and twelve merged into count ten. Defendant's aggregate sentence was twenty-three years, with an eighty-five percent parole ineligibility period, and eight years of parole supervision upon release.
Defendant now appeals, raising the following issues for our consideration:
THE DEFENDANT IS UNDER NO OBLIGATION TO VOLUNTEER TO THE AUTHORITIES AT THE FIRST OPPORTUNITY THE DURESS HE LATER CLAIMS AT HIS TRIAL AND CANNOT BE PENALIZED DIRECTLY OR INDIRECTLY IF HE DOES NOT. THE PROSECUTOR'S IMPROPER COMMENTS ON HIS SILENCE AND THE FAILURE OF THE TRIAL JUDGE TO GIVE A LIMITING INSTRUCTION REQUIRES A NEW TRIAL (Not Raised Below).
POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD MERGE INTO THE ROBBERY CONVICTION PURSUANT TO STATE V. DIAZ.
AGGRAVATING FACTOR 13 WAS IMPROPERLY FOUND THEREFORE THE MATTER SHOULD BE REMANDED FOR RESENTENCING (Not Raised Below).
THE IMPOSITION OF CONSECUTIVE PERIODS OF PAROLE SUPERVISION VIOLATES N.J.S.A. 2C:43-7.2C (Not Raised Below).
DEFENDANT'S OVERALL SENTENCE IS EXCESSIVE AND VIOLATIVE OF FUNDAMENTAL FAIRNESS UNDER STATE V. MILLER (Partially Raised Below).
DEFENDANT'S SENTENCE SHOULD BE REMANDED PURSUANT TO STATE V. NATALE (Not Raised Below).
For the reasons that follow, we affirm defendant's convictions, merge certain counts, and remand for re-sentencing.
On August 20, 2003, at approximately 11:00 p.m., Sheldon Levy exited the Pit Stop Pub in Roxbury Township. As Levy approached his van parked in a nearby lot, he observed two men run towards his vehicle. Levy described the men as black or tanned with broken accents; one was wearing a bandana. When Levy opened the door to his van, one of the men pointed a handgun at him and informed him it was a "stick up." Levy tossed his wallet, keys and cell phone out the window. The assailants picked up his belongings and fled. Levy then contacted the police.
Approximately three hours after Levy was robbed, Katherine Thomas left her boyfriend's house in the Flanders section of Roxbury Township. As she drove toward an intersection, she observed two men standing on a nearby island. One of them jumped in front of her vehicle, causing her to come to a stop. Thomas then heard one of the individuals tapping on her window and saw a gun pointed at her. The assailant holding the gun opened the door, entered the vehicle and sat next to Thomas. The other man, whom Thomas identified as co-defendant Usher-Swift, entered the vehicle and sat behind her. Thomas testified that the man sitting beside her was wearing a bandana to cover his face. She also testified that the men referred to one another as "Jit and Juve or Juva" and spoke "some sort of Creole language."
The men demanded that Thomas drive them to East Orange. During the ride, the men ordered Thomas to stop and withdraw twenty dollars from an ATM; they also took her cell phone and $100 from her wallet. The two men finally exited Thomas's car at a gas station, threatened to kill her if she informed the police and walked away. Thomas then drove home, woke her parents and contacted the police.
On September 17, 2003, approximately one month after the crimes, based upon information received from Usher-Swift, the police found Levy's wallet and keys near the Roxbury train station. Latent fingerprints found on Levy's van were confirmed to be defendant's. On September 18, 2003, the police executed a search warrant at defendant's residence and found a blue bandana in defendant's bedroom.
Defendant testified at trial. He stated that Usher-Swift is his cousin. On the night of August 20, 2003, the two men went to Roxbury to meet a young lady. While defendant was trying to make telephone contact with her, he observed Usher-Swift approach an individual in a van, holding a handgun which defendant saw then for the first time. Defendant saw the individual hand his keys to Usher-Swift. Defendant tried to leave the scene; however, Usher-Swift stopped him and told him: "[I]f you ever try and leave or run,. . . you're going to get it too."
Defendant testified that he tried to run away from Usher-Swift into the bushes at the train station; however, Usher-Swift came up right behind him. Defendant stated that he made no further efforts to run because, "at that point, . . . I felt like I didn't have a choice, . . . because after all he . . . pointed the gun at me . . . so I'm like . . . feel like I had no choice. I was threatened at that point, felt like I was threatened at that point."
While they were hiding in the bushes, a police car drove into the parking lot. Usher-Swift told defendant to "just stay quiet[.]" Defendant knew Usher-Swift had a gun, and complied.
After the police car left the parking lot, defendant and Usher-Swift left the area and walked along a roadway. Thomas's car approached, slowing at the traffic light. Usher-Swift went in front of the car. Defendant made no effort to run away because he did not know what Usher-Swift was planning to do.
When Usher-Swift entered Thomas's car, he motioned for defendant to do the same. Defendant entered the front passenger seat. He observed that Thomas was "scared" and told her he would not let Usher-Swift hurt her. Defendant testified that he entered Thomas's car because he felt "forced to get in" by Usher-Swift. Defendant testified that he felt threatened by Usher-Swift "from the very beginning" when Usher-Swift pointed his gun at defendant.
On cross examination, the following colloquy occurred between defendant and the prosecutor, which forms the basis of defendant's first appellate issue:
Q: Well, you just . . . testified on direct that you didn't really hang out with your cousin much and that he didn't come over a whole lot, you said between April and August maybe five times, right?
A: Maybe five times.
Q: Now, all of a sudden, he's hanging out with you all the time?
A: In case I had to -- I had to -- I was staying at my auntie's house.
Q: How about in September?
A: In September? September -- oh, in September, yeah, one time, one time. That's when I got off, you know, work and then I had got paid that same day, you know, and I went to the gas station. I had the day off.
Q: Well, you continued to hang out with your cousin Ryne?
A: I did not continue hanging out with Ryne.
Q: You weren't with Ryne in September?
A: I was with Ryne but, you know, I did not like hang out with him, like go anywhere with him.
Q: So, from August through, you never told anyone about what happened that night in Roxbury?
A: I feel like you know, I was already threatened already and my arm -- and he hit me, you know, after you didn't make me finish what I was --
Q: I'm sorry?
A: I said you didn't make me finish when I was, you know, telling you about what my auntie asked about that day and afterwards, nothing happened of it but Ryne, you know, approached me like what you tell auntie, you know. I didn't tell her nothing, you know, and I don't know if my auntie brought the medical report but, you know, we got into, you know, a conflict, you know, and then he moved the bed, you know, and he was like, you know, next time, you know, you going to know -- you'll know better, you know.
Q: You never went to the police?
A: No, because I felt threatened, you know. He told me not to go and, you know, I don't know what kind of ties he got now.
Q: But even though you felt threatened by him, don't you think if you told your auntie, hey, Ryne's out of control, he's doing these crimes, he's threatening me, we have to do something?
Q: Wouldn't you go to your aunts or your uncles, somebody to help protect you?
A: I could have always went to my aunts and uncles but look what happened. He thought I -- he thought I told my auntie something.
Q: You could have went to the police.
A: I could have went to the police but then all the police would have did was, you know, question --
Q: Arrest him?
THE COURT: I'm sorry, Mr. Connell, [for] interrupting. May I see you here at sidebar, please?
THE COURT: If you continue to ask him about not going to the police you're going to start to get into issues regarding his ability to go and if you continue with articulating this particular answer, you get into a lot of problems.
MR. O'CONNELL: All right, I'm going to wrap it up in a moment.
In his summation, the prosecutor made the following comments regarding defendant's conduct immediately after the Levy robbery:
They sat there, they waited until the police left. He could have yelled out if he was under duress, there was a dog there. These police officers were all armed. They're right there. He sees them. Hey, help me, you won't believe what's going on. Why didn't he? Because he was an active participant, ladies and gentlemen.
Defendant raised no objection to these remarks.
Defendant contends that the prosecutor's cross-examination and summation comments constituted impermissible commentary on his right to remain silent. He further criticizes the trial judge's failure to give the jury a limiting instruction regarding this cross-examination.
We conclude, however, that the prosecutor's questions and summation were addressed to the credibility of the duress defense that defendant proffered at trial. Neither the prosecutor's cross-examination nor his summation comments were directed to defendant's silence "at or near the time of his arrest[.]" State v. Deatore, 70 N.J. 100, 108 (1976). Such questions and comments would be improper. Ibid. As our Supreme Court has noted:
[E]vidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination. . . .
We now hold that pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved. In determining admissibility, the probative worth of pre-arrest silence as bearing on credibility must be assessed in light of all the surrounding circumstances.
If it can be inferred by the fact-finder that a reasonable person situated as the defendant, prior to arrest, would naturally have come forward and mentioned his or her involvement in the criminal episode, particularly when this is assessed against the defendant's apparent exculpatory testimony, then the failure to have done so has sufficient probative worth bearing on defendant's credibility for purposes of impeachment. [State v. Brown, 118 N.J. 595, 613-14 (1990)(emphasis added).]
The Supreme Court recently reaffirmed this holding in State v. Taffaro, 195 N.J. 442 (2008).
Defendant's reliance upon State v. Elkwisni, 190 N.J. 169, 180 (2007), is misplaced. In that case, the Supreme Court expressed "some reservation . . . concerning the prosecutor's cross-examination of defendant with regard to his silence at the time the police arrived and placed him under arrest." (Emphasis added). In Elkwisni, the police arrived at the scene of the crime and "immediately grabbed defendant, placed him in handcuffs, and removed him to a police car." Id. at 174.
By contrast, when the police arrived in the parking lot where defendant was hiding, no arrest occurred. Defendant was not arrested until one month later, during which time he made no effort to advise either the police or anyone else that he had participated in these offenses only under duress. It was this one-month period of silence that was the subject of the prosecutor's cross-examination and summation comments. Those questions and comments "focused on defendant's actions [a month] before his arrest and did not involve police interrogation or any governmental compulsion." Taffaro, supra, 195 N.J. at 455.
"[I]n circumstances not involving official interrogation or a custodial setting, silence significantly preceding arrest is admissible if 'it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's apparent exculpatory testimony.'" State v. Muhammad, 182 N.J. 551, 572 (2005) (quoting Brown, supra, 118 N.J. at 615).
Defendant has raised this point as plain error. As such, defendant must convince us that this error "is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. As the challenged questions and comments were addressed to the credibility of defendant's duress defense, and not to defendant's silence "at or near" the time of his arrest, we conclude that defendant has failed to demonstrate any error, let alone plain error.
We concur with defendant's argument that count fourteen of the indictment charging him with possession of a weapon for an unlawful purpose should merge with his convictions for the substantive offenses against Thomas. Defendant was not charged with, and the record contains no evidence of, any unlawful purpose in his possession of the gun other than to commit those offenses.
In State v. Diaz, 144 N.J. 628, 639 (1996), the Supreme Court adopted the following test for merger of the offense of possession of a weapon for an unlawful purpose as set forth in State v. Williams, 213 N.J. Super. 30, 36 (App. Div. 1986), certif. denied, 107 N.J. 104 (1987):
To avoid merger of possession of a weapon for an unlawful purpose, four factors must be present: (1) the defendant must have been charged in the indictment with possession of the weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense, (2) the evidence must support a finding that the defendant had a broader unlawful purpose, (3) the judge must have instructed the jury of the difference between possession with the specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose and (4) the verdict must express the jury's conclusion that the defendant had a broader unlawful purpose.
There may be cases where merger is necessary despite the presence of these four factors.
Count fourteen of the indictment charged defendant with possession of a firearm with the intent to use it "against the person or property of Katherine Thomas[.]" The judge charged the jury that the State must prove that:
. . . defendant had the purpose to use the firearm in a manner prohibited by law . . . This element means you have to find the State proves beyond a reasonable doubt that the defendant possessed a firearm with the conscious objective[,] design or intent to use it against a person or property in an unlawful manner, as charged here, which the State contends was to get a car. . . . You have to decide whether the State proved that . . . unlawful purpose[.]"
We conclude that none of the four factors identified in Williams, supra, has been met here. Count fourteen charged defendant with possession of a weapon for the specific purpose of using it against Thomas; the evidence did not "support a finding that the defendant had a broader purpose[.]" 213 N.J. Super. at 36. The trial judge instructed the jury that the "unlawful purpose" element of the offense related to "get[ting] a car or to threaten Mr. Levy or to rob him." Thus, the verdict expressed the jury's conclusion that defendant had possessed the gun with no "broader unlawful purpose," ibid., than to commit the offenses against Thomas.
"Under those circumstances, the use of the firearm to commit the substantive offense . . . provides the factual underpinning for drawing an inference that the firearm was possessed for an unlawful purpose." Diaz, supra, 144 N.J. at 636. Therefore, merger of these counts of the indictment is appropriate.
We next address defendant's sentencing arguments. The State concedes that the trial court's application of aggravating factor thirteen was improper.*fn2 N.J.S.A. 2C:44-1(a)(13).
The State also agrees with defendant's argument that he is entitled to a remand for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), because his sentence was imposed before the Supreme Court's decision in that case. In Natale, the Supreme Court eliminated the presumptive terms as set forth in N.J.S.A. 2C:44-1(f) and required judges to weigh aggravating and mitigating factors within the context of the entire sentencing range available for the degree of offense charged, pursuant to N.J.S.A. 2C:43-6(a). Id. at 487. Defendants who had received sentences "higher than the presumptive term based on judicial findings other than a prior criminal conviction," id. at 489-90, were held entitled to a "new sentencing hearing" at which the trial court was to "determine whether the absence of a presumptive term in the weighing process require[d] the imposition of a different sentence." Id. at 495-96.
Defendant's six-year sentences on the robbery convictions in counts one and ten of the indictment are below the presumptive term for those offenses. N.J.S.A. 2C:44-1(f)(1)(c). Therefore, no Natale remand is necessary regarding those sentences.
With respect to defendant's seventeen-year sentence on first-degree carjacking (count eight), we have recently held that Natale does not apply to such a sentence because "[u]nder the Code, . . . there is no presumptive term for . . . carjacking." State v. Drury, 382 N.J. Super. 469, 486-87 (App. Div. 2006), aff'd in relevant part, rev'd in part, 190 N.J. 197 (2007). Therefore, defendant's sentence for that crime does not "require resentencing under Natale." Id. at 487.
In the absence of a presumptive sentence, "trial courts must look to the alternative elements of carjacking to guide their sentencing discretion, in conjunction with the aggravating and mitigating factors applicable to all sentencing decisions." State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996). Those elements include:
(1) inflict[ing] bodily injury or us[ing] force upon an occupant or person in possession or control of a motor vehicle;
(2) threaten[ing] an occupant or person in control with, or purposely or knowing put[ting] an occupant or person in control of the motor vehicle in fear of, immediate bodily injury;
(3) commit[ting] or threaten[ing] immediately to commit any crime of the first or second degree; or
(4) operat[ing] or caus[ing] said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.
[N.J.S.A. 2C:15-2(a)(1) to (4).]
In sentencing defendant, the court engaged in an extensive discussion of these elements as they related to Ms. Thomas. Defendant has not challenged that analysis, and we find no reason to remand for resentencing on this charge on this basis.
Since there must be a resentencing at which aggravating factor number thirteen will not be considered, we need not consider at this time defendant's argument that his sentence was excessive. However, as we noted in our opinion in co-defendant's appeal:
In resentencing defendant, the trial court should keep in mind that even in a case where consecutive sentences may be appropriate, "[t]he [sentencing court's] focus should be on the fairness of the overall sentence[.]" State v. Miller, 108 N.J. 112, 122 (1987). Therefore, the court should consider the aggregate term that will result from the imposition of consecutive sentences in determining the length of each component sentence.
[State v. Usher-Swift, supra, slip op. at 9.]
Finally, we address defendant's argument that the imposition of consecutive periods of parole supervision violates NERA. N.J.S.A. 2C:43-7.2(c) provides:
Notwithstanding any other provision of law to the contrary and in addition to any other sentence imposed, a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first-degree, or a three-year term of parole supervision if the defendant is being sentenced for a crime of the second degree. The term of parole supervision shall commence . . . immediately upon the defendant's release from incarceration. During the term of parole supervision the defendant shall remain in release status in the community in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole . . . .
The statute does not directly address the situation presented here, namely whether a defendant who receives two consecutive NERA terms, each of which carries a period of parole supervision, should be subject to consecutive parole supervision terms.
Defendant received a five-year period of parole supervision on the first-degree carjacking conviction in count eight; he received a consecutive three-year period of parole supervision on the second-degree robbery conviction under count one. The effect of these sentences is to extend his post-release parole supervision from five to eight years. During this period defendant would remain vulnerable to re-incarceration upon any violation of parole conditions.
In State v. Freudenberger, 358 N.J. Super. 162, 169-70 (App. Div. 2003), we noted that NERA's imposition of parole supervision beyond the term of the imposed sentence is itself a significant penal consequence. More significant is the possibility that upon a parole violation a defendant could be required to serve additional time after expiration of the specified sentence.
In State v. Johnson, 182 N.J. 232, 241 (2005), the Supreme Court expressly held that "being subject to NERA's mandatory period of parole supervision constitute[s] a direct, penal consequence of defendant's [conviction] . . . ."
It is axiomatic that "penal statutes must be strictly construed. . . . 'The rule . . . has at its heart the requirement of due process.'" State v. Valentin, 105 N.J. 14, 17 (1987)(citation omitted). Where, as here, "the language is ambiguous -- and the ambiguity is not manufactured by the defendant -- the construction must be drawn against the state." Id. at 18; see State v. Carbone, 38 N.J. 19, 23-24 (1962).
Applying these principles to the imposition of parole supervision periods under NERA, we conclude that, where a defendant is sentenced to consecutive NERA-based sentences, the periods of parole supervision must nonetheless run concurrent to each other. A defendant who is sentenced to twenty years on a first-degree offense, with an eighty-five percent parole ineligibility period, will serve seventeen years and, upon release, will face five years of parole supervision. Were that defendant to violate his post-release parole, he would be vulnerable to a return to prison for the remainder of his five-year supervision term. Such a defendant could, thus, serve a term in excess of the twenty-year maximum for the first-degree offense on which he was originally sentenced. By imposing consecutive parole supervision terms, a court exposes a defendant to a possible term of incarceration that even further exceeds the maximum terms for the offenses of which he was convicted.
Furthermore, we note that when co-defendant Usher-Swift was resentenced pursuant to the remand in our decision of March 21, 2006, the trial judge imposed concurrent terms of parole supervision, citing State v. Johnson, supra, and, opining further that the result is "supported frankly by the language of the statute[.]" Therefore, notwithstanding the consecutive NERA custodial terms imposed on co-defendant on counts one and eight, he received concurrent parole supervision terms on those counts.
We conclude that the same result should appertain in this case. Therefore, in sentencing defendant on remand, the trial judge shall impose concurrent parole supervision terms.
Accordingly, we affirm defendant's convictions but vacate his sentence and remand for resentencing in conformity with this opinion.