September 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TOBY E. HUDSON A/K/A ELLISON T. HUDSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2008
Before Judges A.A. Rodríguez and Lihotz.
Tried to a jury, defendant Toby Hudson was found guilty as an accomplice pursuant to N.J.S.A. 2C:2-6 of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a)(3) (count two); third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four). The trial court merged count four with count three, and then merged counts three and two with count one. Defendant was sentenced to eleven and one-half years imprisonment on the first-degree robbery conviction, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court ordered applicable penalties and assessments.
Defendant seeks reversal of his conviction or a modification of the imposed sentence, arguing:
DEFENDANT IS ENTITLED TO A JUDGMENT OF ACQUITTAL OF FIRST DEGREE ROBBERY BECAUSE THE STATE DID NOT PRODUCE ANY EVIDENCE THAT THE PAINT BALL MARKERS OR "GUNS" WERE CAPABLE OF CAUSING SERIOUS BODILY INJURY, AND WERE THUS "DEADLY WEAPONS" WITHIN N.J.S.A. 2C:11-1(c). (Not Raised Below). POINT II
THE TRIAL COURT'S INSTRUCTIONS REGARDING THE USE OF THE PLEADING CO-DEFENDANT'S TESTIMONY WERE ERRONEOUS AND HIGHLY PREJUDICIAL AS THEY DID NOT MAKE IT CLEAR THAT THE CO-DEFENDANT'S GUILTY PLEA WAS NOT TO BE USED AS A SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILTY: THUS, THIS COURT SHOULD REMAND THE CASE FOR A NEW TRIAL ON THE LESSER-INCLUDED OFFENSE OF SECOND DEGREE ROBBERY. (Not Raised Below).
THE PROSECUTOR'S ARGUMENT THAT DEFENDANT DID NOT CALL HIS MOTHER AS A WITNESS BECAUSE HER TESTIMONY WOULD HAVE BEEN UNFAVORABLE TO HIM CONSTITUTED REVERSIBLE MISCONDUCT, AND REQUIRES REMAND FOR A NEW TRIAL ON THE LESSER-INCLUDED OFFENSE OF SECOND DEGREE ROBBERY.
THE INTERESTS OF JUSTICE DEMAND THAT DEFENDANT BE SENTENCED TO A TERM WITHIN THE SECOND DEGREE RANGE[.] IN ADDITION, A PROPER BALANCING OF AGGRAVATING AND MITIGATING FACTORS SHOULD HAVE RESULTED IN A SENTENCE TOWARD THE LOWER END OF THAT RANGE. (Not Raised Below).
The facts are taken from the trial testimony of the State's witnesses. In the early morning of October 23, 2003, while walking to work, Rigoberto Gomez Carranza (Gomez) was attacked and robbed. Before the attack, Gomez was surrounded by three individuals: co-defendant Michael Turner who approached Gomez from the front, co-defendant Raysean Sykes who approached from the side, and defendant who approached from behind. The three were armed with paintball guns. Sykes wore a mask and defendant obscured his face with the hood of his sweatshirt. Turner demanded Gomez's money. The victim, who does not speak English, did not respond to the demand. Defendant punched Gomez in the back, Gomez reacted and Turner kicked him in the leg. Then, using the paintball gun, Turner shot Gomez on the right side of his face. Gomez dropped his bag and ran off. All three assailants shot their paintball guns at Gomez as he fled.
When he arrived at work, Gomez reported the robbery. He provided police with a description of his assailants and their clothing. The next day, Gomez chose defendant from a photographic array as one of his attackers. That same day, Trenton police Sergeant Anthony Pasqua stopped a Black Ford Escort driven by Turner, in which defendant and Sykes were passengers. The officer saw two paintball guns in the vehicle. Pasqua arrested defendant on two open warrants and, after they provided aliases, escorted Turner and Sykes to police headquarters for questioning. A third paintball gun was found in the vehicle's trunk.
After being advised of his Miranda*fn1 rights, defendant executed a formal written statement admitting his involvement in robbing Gomez. At trial, defendant testified his custodial statement was false and he had not been with Turner and Sykes on October 23, 2003. Defendant asserted he signed the statement because the police stated Turner and Sykes implicated him and because he was afraid of the consequences of not cooperating with police officers. Defendant insisted he did not see Turner or Sykes until October 24, 2003, when the three were shooting paintball guns at a building shortly before police stopped their vehicle.
On appeal, defendant first argues that a paintball marker does not qualify as a "deadly weapon" capable of causing "serious bodily injury" as required for a first degree robbery conviction. The argument refers to the statute's grading provision, which states:
Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor 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:15-1(b).]
The term "deadly weapon" is defined as: any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is 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:11-1(c).]
"Serious bodily injury" means "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(b).
It is the existence of a deadly weapon, in whatever form it might take, that elevates the crime and enhances the degree of the offense. State v. Lopez, 276 N.J. Super. 296, 307 (App. Div.), certif. denied, 139 N.J. 289 (1994); State v. Butler, 89 N.J. 220, 231 (1982). Thus, in the course of a robbery, the use of any instrument or material that would be "capable of producing death or serious bodily injury," raises the offense to a crime of the first degree. N.J.S.A. 2C:11-1(c); State v. Orlando, 269 N.J. Super. 116, 127 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994); State v. Hickman, 204 N.J. Super. 409, 414-15 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986).
We reject defendant's argument that he could be charged only with a second degree offense since Gomez was not hurt when hit with a paintball. The standard is not a subjective one, but rather the standard is objective, requiring examination of whether the weapon used was "capable" of producing serious bodily injury. Further, we have determined "[a] paintball gun is capable of inflicting serious bodily injury, such as permanent eye injury and loss of vision." State ex. rel. G.C., 359 N.J. Super. 399, 406-07 (App. Div. 2003), rev'd on other grounds, 179 N.J. 475 (2004).
In this matter, the jury was presented with the evidence and instructed on the State's burden to prove each element of the offense beyond a reasonable doubt. This included the element of whether defendant possessed a deadly weapon. In this regard, we discern no error in the charge presented and accordingly, do not interfere with the jury's determination.
Defendant next challenges perceived error resulting from objections to the cross-examination of co-defendant Michael Turner. Turner, who testifying on behalf on the State, implicated defendant in the robbery. On cross-examination, Turner was asked the possible length of his sentence pursuant to the terms of a negotiated plea agreement. The prosecutor objected, stating: "Sentencing is within the purview of the judge."
Defendant argues the content of the objection was inaccurate and misled the jury. Further, he contends the trial court was required, sua sponte, to provide a curative instruction. Defendant argues the absence of a special instruction bolstered Turner's credibility. In a related challenge, defendant argues the jury charge neglected to inform the jury that Turner's guilty plea could not be used as substantive evidence of defendant's guilt.
Defense counsel did not object to the jury charge or request a curative instruction at trial. Thus, we review this argument under the plain error standard. R. 2:10-2. Plain error has been defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). Our review detects no legal error or abuse of discretion.
We determine that the prosecutor's statement was not misleading and no curative instruction was required. Moreover, the court denied the State's objection, because the question properly challenged Turner's motivation. Thereafter, defendant was permitted to attack Turner's credibility through continued cross-examination. We perceive no legal impropriety.
Regarding the jury charge, which we must read as a whole, State v. Marshall, 123 N.J. 1, 135-36 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694-95 (1993), we are satisfied the judge properly instructed the jury on the limited use of the plea information. State v. Adams, 194 N.J. 186, 208 (2008); State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005). Judge Bielamowicz clearly and precisely instructed the jury that the witness's guilty plea was admissible to affect his credibility as a witness. State v. Stefanelli, 78 N.J. 418, 433 (1979). We disagree with defendant's suggestion that the charge misled the jury regarding the use of Turner's plea.
Defendant's remaining objection concerns the State's comment when Turner was asked whether he was compelled to testify. Following the question, the assistant prosecutor stated the witness could have been "compelled to testify either way." The court allowed Turner's cross-examination to continue after remarking: "All right. Well, I think that clarifies your point." After reviewing the parties' written submissions and, in light of the applicable law, we are satisfied that defendant's argument asserting error lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3((e)(2).
Defendant next claims prosecutorial misconduct during the State's summation had an adverse impacted on the jury. The assistant prosecutor recounted that defendant telephoned his mother while in custody, prior to making his custodial statement, yet she did not appear as a witness to corroborate defendant's testimony that his custodial statement was coerced.
Defense counsel's objection was sustained and the jury was immediately instructed to disregard the prosecutor's comment.
We trust juries to follow the instructions given by the court. State v. Short, 131 N.J. 47, 65 (1993). In this matter, we conclude any error caused by the assistant prosecutor's statement was cured by the trial court's strongly stated limiting instruction. State v. Carter, 91 N.J. 86, 129 (1982).
We now examine defendant's sentence.
The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. 484, 493-94 (1996).]
Defendant urges that, under the circumstances presented, the harshness of NERA should have been mitigated by sentencing defendant as if he had been convicted of a second degree offense, pursuant to N.J.S.A. 2C:44-1(f)(2). That statute allows a sentencing court "to sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted," only "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." Ibid.
Judge Bielamowicz fully and fairly weighed each applicable aggravating and mitigating factor prior to sentencing defendant. The court concluded that the "mitigating factors only slightly outweigh[ed] the aggravating." The imposed eleven and one-half year term of incarceration falls at the lower end of the permissible first-degree range. We find no support for defendant's assertion that the judge was "clearly convinced that the mitigating factors substantially outweigh the aggravating factors." Ibid. The court properly exercised its permitted discretion. "Judges who exercise discretion and comply with the principles of sentencing remain free from the fear of 'second guessing.'" Megargel, supra, 143 N.J. at 494.