September 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID MINOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. No. 02-05-1845.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 5, 2007
Before Judges A. A. Rodríguez and Collester.
In the first of these back-to-back appeals, A-6501-05T4, defendant David Minor was tried to a jury and found guilty of first degree robbery, contrary to N.J.S.A. 2C:15-1, third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b), and second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). Defendant was sentenced to concurrent sentences aggregating twenty years with a parole ineligibility period of eighty-five percent pursuant to the No Early Release Act (NERA).
The facts as testified to at defendant's trial were as follows. At about 8 p.m. on January 11, 2002, Lidwyn Cummings was the victim of an armed robbery after he left a drugstore at the corner of Stuyvesant Avenue and 18th Avenue in Newark. As he walked from the drugstore to his pickup truck, Cummings noticed a man walking across the street heading in the same direction. After Cummings put his key into the truck door, the man pressed a chrome handgun to his side and demanded money. When Cummings replied that he had no money, and the man then threatened him saying, "Give me your fucking money or else I'm going to pop you one." Cummings then turned over $20 in cash and the pack of cigarettes he had just purchased. The robber then demanded that Cummings give him his wallet and the keys to the truck. The perpetrator took money from the wallet and threw the keys in a lot across the street. He then headed on foot down Valley Street.
Cummings retrieved his keys and drove to a Newark police substation to report the incident. A formal typed statement was later taken from Cummings by Detective Michael Chirico. Cummings described the man at about five feet, eight inches tall, weighing about 150 pounds, between twenty-three and twenty-five years old, and wearing a black hooded sweater, grey pants and a cap. Cummings later testified that the lighting conditions were good when he made his observations because of three streetlights in the immediate area. Cummings told Detective Chirico that he would be able to identify the individual who robbed him.
Two days later Cummings returned to the police station and reviewed photographs in six large mug books but did not recognize anyone as the person who robbed him. On January 16, 2002, Cummings returned and viewed a six-photo array, which included defendant and persons looking similar to defendant. Cummings selected a photograph of defendant David Minor and said that he was "really sure" he was the perpetrator who robbed him.
At trial the assistant prosecutor asked Cummings whether he could make an in-court identification, and the following colloquy took place:
Q: I'm going to ask you to look around the courtroom at anyone in here. And I'm going to ask you if you can recognize anyone here or recognize the person who did this to you? Look around the whole courtroom.
A: I'd say that gentleman over there.
Q: Okay. You're pointing to the man sitting here. What is he wearing, sir?
A: White suit.
Q: Alright. How positive are you, sir, that he is the person who robbed you?
A: This happened over a year ago... So the memory-but from remembering back, I would say about 80 percent.
A: I'm not going to say I am 100 percent certain now because this happened a way back.
Q: Well, how positive are you today that the person sitting in court is the person who did this?
A: I'd say about 80 percent.
Q: Alright. How about when you picked the picture out?
A: I was-then it was much fresher.
Q: Now you said that when you picked this picture out the image of the person who did this to you was fresh in your mind?
Q: How positive were you when you picked this picture out?
A: About 95-100 percent.
The defendant did not testify, and no witnesses were presented by the defense. While the jury was deliberating, defendant left the courtroom and failed to return. A bench warrant was issued for his arrest. The jury returned a guilty verdict on all three counts of the indictment.
On appeal defendant makes the following arguments:
POINT I-THE TRIAL COURT'S FAILURE TO CONDUCT A GILMORE HEARING DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 5, 9 & 10.
POINT II-THE PROSECUTOR MISSTATED THE LAW AND HER BURDEN OF PROOF AND HER IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9 & 10. (Not Raised Below.)
POINT III-THE POLICE FAILED TO FOLLOW ESTABLISHED ATTORNEY GENERAL PROTOCOL IN CONDUCTING THE PHOTO ARRAY. (Not Raised Below.)
A. FAILURE TO CONDUCT A WADE HEARING WAS NOT HARMLESS.
B. BRANCH AND BANKSTON WERE NOT FOLLOWED AND THE RESULTANT HEARSAY DEPRIVED THE DEFENDANT OF A RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. (Not Raised Below.)
C. CONCLUSION: THE TAINTED PHOTO ARRAY VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT IV-THE DEFENDANT'S SENTENCE OF TWENTY YEARS WITH N.E.R.A. PAROLE INELIGIBILITY, VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY.
U.S. CONST. AMENDS. VI AND XIV. (Not Raised Below.)
After jury selection concluded, defense counsel challenged the assistant prosecutor's exercise of five challenges, all women and all but one African-American and argued that the State impermissibly exercised its preemptory challenges in violation of State v. Gilmore, 103 N.J. 508 (1986) an Article I of the New Jersey Constitution. In Gilmore the Supreme Court held that the prosecution's use of preemptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of presumed group bias violated a defendant's right to a trial by an impartial jury drawn "from a representative cross-section of the community." Gilmore, supra, 103 N.J. at 508, 526-27. See also State v. Johnson, 325 N.J. Super. 78 (App. Div. 1999); Georgia v. McCollum, 502 U.S. 1056, 112 S.Ct. 931, 117 L.Ed. 2d 103 (1992).
In State v. Fuller, 182 N.J. 174 (2004) our Supreme Court detailed the meaning of "cognizable groups," stating:
Indeed, in Gilmore we were quite clear as to the "floor" for that protection: Article I, paragraphs 5 and 1, define the core cognizable groups for purposes of impartial jury analysis under the representative cross-section rule, but are not necessarily definitive of those groups.
That is, at a minimum, cognizable groups include those defined as the basis of religious principles, race, color, ancestry, national origin and sex (all of which are suspect or semi-suspect classifications triggering strict or intermediate scrutiny under federal equal protection analysis). [Id. at 195-96, quoting State v. Gilmore, 103 N.J. 508, 526-27 fn. 3 (1986).]
In Fuller the Supreme Court also delineated the standard to be followed by the trial judge in evaluating a Gilmore challenge. First, the Court stated there was a rebuttable presumption that the prosecution exercised its preemptory challenges on constitutionally permissible grounds. To rebut that presumption the defendant had to establish that potential jurors were members of a cognizable group that were disproportionately excluded by preemptory challenge. Next, the defendant was obliged to show that there was a "substantial likelihood" that the preemptory challenges made by the prosecution were based on assumptions about group bias as opposed to situation-specific bias. Fuller, supra, 182 N.J. at 196-97. If the defense made the requisite showing, the burden then shifted to the prosecution to show that the preemptory challenges were justified on the basis of situation-specific bias by articulating "clear and reasonably specific" explanations of legitimate reasons for exercise of the preemptory challenges. Ibid. At that point the trial judge must determine whether the defendant met the burden of proof by a preponderance of the evidence that the prosecutor exercised preemptory challenges on the impermissible grounds of presumed group bias. Gilmore, supra, 103 N.J. at 539.
In Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed. 2d 129 (2005), the United States Supreme Court rejected the argument that a defendant was required to show that the prosecution's use of preemptory challenges "was more likely than not the product of purposeful discrimination" to establish a prima facie case and held that a defendant is only required to produce evidence "sufficient to permit the trial judge to draw an inference that discrimination has occurred." 545 U.S. at 170, 125 S.Ct. at 2417, 162 L.Ed. 2d at 139. We recently considered the applicability of Johnson v. California to the "substantial likelihood" test to establish a prima facie case as stated in Gilmore, supra, 103 N.J. at 536. In State v. Osorio, A-2067-06T4 (App. Div. August 4, 2008), we reached the following conclusion:
The requirement that a defendant show a "substantial likelihood" of the discriminatory use of preemptory challenge to establish a prima facie case, which our Supreme Court adopted in Gilmore, is quite similar to the "more likely than not" standard for establishing a prima facie case, which the Supreme Court of the United States rejected in Johnson. In fact, the court in Johnson appeared to equate the "strong or substantial likelihood" and the "more likely than not" test for establishing a prima facie case. [Citation omitted.]
Therefore, we conclude that the part of Gilmore dealing with the proof required to establish a prima facie case has been superseded by Johnson. [Id. at ll.]
In Osorio we applied the Johnson v. California test whereby defendant is only required to produce evidence "sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id. at 10, quoting from Johnson v. California, supra, 545 U.S. at 170, 125 S.Ct. at 2417, 162 L.Ed. 2d at 139. While the Osorio test for determination of a prima facie case is less stringent than in Gilmore, in this case we find that the defendant has not produced "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Osorio, supra, at p.10.
In State v. Watkins, 114 N.J. 259, 266 (1989), our Supreme Court delineated factors to be considered on the issue of whether the prosecutor impermissibly exercised preemptory challenges. The factors include the following:
(1) That the prosecutor struck most or all of the members of the identified group from the venire;
(2) That the prosecutor used a disproportionate number of his or her preemptories against the group;
(3) That the prosecutor failed to ask or propose questions to the challenged jurors;
(4) That other than their race, the challenged jurors are as heterogeneous as the community as a whole; and
(5) That the challenged jurors unlike the victims, are the same race as defendant. [Id. at 266.]
In the instant case the prosecutor exercised all of the State's permissible preemptory challenges. Five preemptory challenges were made to women, and four of the five were African-American women. The challenged jurors were:
(1) Joanna Diakos: a single attorney working for a law firm in New York City which represented defendants in white collar crime cases;
(2) Calaza Hunter: a single college student;
(3) Theresa Braswell: no detailed answer provided;
(4) Lillian Cobb: a legal secretary working for the State of New Jersey, Division of Law, Bureau of Securities. She stated that she had a defendant arrested for "sitting in a stolen vehicle" in Newark five months earlier and thought that the matter had not been handled fairly although she denied bias for either side based on this incident. She also witnessed a shooting on a bus and knew the area where the crime took place.
(5) Jacqueline Bass: a widow working as a paralegal for the State in non-criminal work. One of her sons worked for the Youth Consultation Services, and the others were unemployed.
In responding to the defense challenge under Gilmore, the assistant prosecutor gave the following argument:
I would submit respectfully that with regard to the fact that they were African-American, the victim in this case is African-American.
The state is-its clear from the answers that the jurors gave that are African-American that I have excluded form the basis of my decision and not because they are simply African-American.
And as far as the fact that they were female-and I also want to make sure its noted-I have only exercised five challenges, one of the five was a white female.
The trial judge denied the defense motion for failure to make a prima facie case. In reviewing this determination we must extend substantial deference to the trial court's judgment as to whether the defendant has made the requisite prima facie showing that the prosecutor had a discriminatory intent in the use of the State's preemptory challenges. See Snyder v. Louisiana, U.S.,, 128 S.Ct. 1203, 1207-08, 170 L.Ed. 2d 175, 181 (2008); Gilmore, supra, 103 N.J. at 541 fn.12, 545; Osorio, supra, at 16; State v. Clark, 324 N.J. Super. 558, 571 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). This deference is in large part attributable to the fact that the trial judge is able to make first-hand observations of the demeanor of the attorney exercising the challenge and the juror in question. Snyder, supra, U.S. at, 128 S.Ct. at 1208, 170 L.Ed. 2d at 181; Osorio, supra, at 16.
Significantly, during the course of the voir dire of the respective jurors, the State made three Gilmore challenges to the claimed use of preemptory challenges by the defense to exclude white males from serving on the jury. The trial judge denied the State's application for a new jury panel finding that the defendant had genuine and reasonable grounds for believing potential jurors might have situation-specific bias. A similar ruling was made on the defendant's Gilmore motion at the conclusion of jury selection.
There was no proof by the defense of an unfair or unreasonable under-representation of African-Americans or women. Indeed, the record discloses that the majority of jurors who heard the case were African-Americans. We have stated that "the ultimate composition of the jury  is relevant to the determination of whether the prosecutor's intent was discriminatory." Clark, supra, 324 N.J. Super. at 570. As we recently noted in Osorio, the presence on the jury of a substantial number of the group alleged to have been discriminatorily excluded may support a finding that a questionable proffered reason for challenging a member of that group was not reflective of a discriminatory intent." Osorio, supra, at 21-22; Clark, supra, 324 N.J. Super. at 575. In this instance, the defense did not make a prima facie showing that the jury was not drawn from a representative cross-section of the community. Accordingly, we reject defendant's argument.
Defendant next argues that comments of the assistant prosecutor improperly misstated the law in her summation. Since there was no objection to the summation, our review is under the plain error standard wherein we will disregard an error unless "it is of such a nature to have been clearly capable of producing an unjust result." R. 2:10-2. See also State v. Macon, 57 N.J. 325, 336 (1971). The defense summation stressed that at the time of Cummings' photo identification he says he was ninety-five to 100 percent sure and at trial said that with the passage of time he was eighty percent sure in his in-court identification. The prosecutor responded:
An that, ladies and gentlemen, that was the certainty I was talking about in my opening. That was the certainty of the identification. That's the beyond a reasonable doubt that you need to find the defendant guilty in this case, you firm belief. The judge will describe to you the definition of beyond a reasonable doubt.
Are you firmly convinced that he is the perpetrator? And the victim was firmly convinced, if he was ninety-five to 100 percent sure within five days of looking at his face that he was the perpetrator, ladies and gentlemen, then you can feel confident that you would be making the right decision by finding the defendant the person who committed each and every count of the indictment, the robbery and the gun possession charges...
Is it understandable a year later-memories fade-that there might be only an eighty percent? But eighty percent is a very high percentage, ladies and gentlemen, that's beyond a reasonable doubt. Preponderance of the evidence in civil cases is a little more than fifty percent. Beyond a reasonable doubt is eighty percent, ninety percent, 100 percent. That's all we need. That's sufficient. And if the victim is certain of his identification five days later, then that is certainly more than enough for the guilt to be determined in this case.
The comments by the prosecutor were obviously an incorrect statement of the law. However, the trial court properly instructed the jury on the meaning of reasonable doubt, and further instructed the jury to follow the instructions of the court and to ignore any statements by the attorneys on the law. Accordingly, we conclude that the erroneous statements by the prosecutor did not deprive the defendant of a fair trial. State v. Ramseur, 106 N.J. 123, 332 (1987); State v. Williams, 113 N.J. 393, 452 (1988); State v. Powell, 294 N.J. Super. 557, 566 (App. Div. 1996).
Defendant's next argument is that the police failed to follow the established Attorney General's protocol in conducting the photo array. The guidelines are contained in the Supreme Court opinion of State v. Herrera, 187 N.J. 493, 501-04 (2006). However, a review of the record indicates that there was substantial compliance with the Attorney General guidelines, and, in any event, the guidelines were designed to provide uniformity and do not constitute a legally mandated procedure.
The defendant also asserts that the trial judge's denial of a pretrial Wade*fn1 hearing was erroneous and requires reversal for a new trial. Our case law is clear that there is no automatic right to a Wade hearing. State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985). There must first be a showing by the defendant of impermissible subjectiveness in the identification procedure. Here the trial judge determined that the photographic identification procedure was neither unfair nor unduly suggestive. His conclusion is buttressed by the fact that the defendant failed to prevent an adequate proffer of an impermissibly suggestive procedure.
The next argument presented by defendant is that the testimony from the detectives as to why defendant's picture was included in the array violated the standard established in State v. Branch, 182 N.J. 338 (2005) and State v. Bankston, 63 N.J. 263 (1973). Here the detectives testified that the defendant's photograph was included in the array shown to the victim based upon the victim's description of the perpetrator given to the police. Nothing in the testimony before the jury indicates that the police had some other source of information that led them to include defendant's photograph. Accordingly, there was no error under Banks/Bankston.
Finally, the defendant asserts that his sentence of a twenty-year term subject to NERA must be vacated and the matter remanded for re-sentencing in light of State v. Thomas, 188 N.J. 137 (2007). We agree.
Affirmed as to convictions. Remanded for re-sentencing.