October 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN A. HRYHOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 04-04-0094.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Reisner and Alvarez.
A Sussex County grand jury returned a multi-count indictment against defendant, John A. Hryhor, and two co-defendants, Erich Fetterman and Casey Pullis, related to a gas station robbery. Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1(a)(1); conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) and N.J.S.A. 2C:2-6; possession of a weapon, a hammer, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree attempted theft, N.J.S.A. 2C:20-3(a), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6. Following a jury trial, defendant was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1(a)(1); and third-degree attempted theft, N.J.S.A. 2C:20-3(a), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6.
Defendant was sentenced on the robbery count to a seven-year term with 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a concurrent seven-year sentence on the conspiracy count, and a five-year concurrent sentence on the theft count.*fn1 Appropriate fees and penalties were imposed. We affirm the convictions, but remand for merger of the conspiracy and attempted theft convictions into the robbery conviction.
The following facts were developed at trial. During the late evening hours of May 22, 2003, a passerby noticed two men wearing hooded jackets running out of a gas station in different directions; one of them was holding something metal. The witness, Brenda Snyder, asked her husband to turn the car around, and they drove back to the Gas-A-Rama located in Sandyston. Upon entering the building, she saw the gas station attendant bleeding from the head and noticed that paramedics and police were arriving.
Trooper Christopher Kay arrived at the Gas-A-Rama within minutes of being dispatched there at 10:51 p.m. He found the attendant, Nasib Singh, sitting by the gas pumps, bleeding profusely from the head. Although Singh spoke English, he was difficult to understand and appeared "agitated." Singh told Kay that he had been counting the day's receipts at the end of his shift when two masked men entered the office, hit him on the head with a hammer, and demanded money. Singh estimated that the men took about $1000. After they left, Singh called his roommate for help.
Singh was treated at the scene by Francine Konecke, an emergency medical technician. Konecke described Singh as "highly excited . . . speaking in his native language." He explained that he had been robbed while working and hit with a hammer-like object. When she inquired further, Singh told Konecke that he had been hit by a hammer. The language barrier made communication difficult, and Konecke had to repeat questions three or four times in order to receive responses. Singh was taken to a local hospital for treatment.
Edward Vikhrov, the manager of the gas station, testified that more than $700 was missing from that day's receipts. He also said that Singh and his roommate stopped working at the station shortly after the robbery, and that their whereabouts were unknown.
Because defendant had been observed in a parking lot of a nearby tavern prior to the robbery, he was immediately identified as a possible suspect and interviewed by police. When interviewed, he said that on the night of the robbery he drove his co-defendants to a sports shop so that Pullis could buy a fishing license. The sports shop is located next to the parking lot where defendant had been seen.
Fetterman, who was eighteen, gave police a detailed, recorded confession in which he explained that he and nineteen-year-old Pullis had spent time fishing with defendant, who was then thirty-four years old, on the day of the crime. The men hatched the plot in the late afternoon and intended to use the proceeds to buy cocaine. Fetterman supplied two masks to be used as a disguise. He claimed that it was Pullis who suggested that a weapon be used during the robbery and that defendant retrieved a hammer from the tool box in the trunk of his car to be used for that purpose. Fetterman described the hammer as a "claw hammer" with a metal handle and a black grip made out of "composite rubber." Fetterman and Pullis were to actually enter the station, while defendant would be the driver. Fetterman said that it was Pullis who hit the attendant with a hammer at least twice, while Fetterman only hit the attendant with his hands when the attendant grabbed at his mask. Fetterman claimed that he ran back to the car without taking any money and that Pullis followed shortly afterwards. Defendant drove Fetterman and Pullis to Fetterman's house first and then to Pullis's house. They burned Pullis and Fetterman's blood-stained clothing, as well as the masks, in a fire pit in a nearby field. After the robbery, Fetterman returned the hammer to defendant. The men agreed that, if questioned, they would explain their presence in the vicinity that night as attributable to Pullis's intent to obtain a fishing license from the sports shop located near the gas station.
At trial, Fetterman admitted to spending a "couple hundred dollars" a week on cocaine and marijuana during the time in which the robbery was committed. Fetterman, who pled guilty to robbery and aggravated assault and received a six-year term subject to NERA, acknowledged that his agreement to testify against his co-defendants was a term of the plea. Fetterman mistakenly testified that he could have risked life in prison if he had gone to trial on the indictment, as opposed to the actual maximum sentence he could have received of up to twenty years. His statement to police was consistent with his trial testimony.
Pullis also confessed when interviewed by police. In contrast to Fetterman, Pullis claimed that it was defendant who suggested the men commit a robbery, and that it was defendant who pressured Pullis and Fetterman into participating, although it was Pullis who picked closing time as the hour for the robbery. At trial, Pullis corroborated Fetterman's testimony about the use of masks, but described the gloves they used as only grey work gloves, not leather as Fetterman had testified.
Pullis told police that a hammer was used as a weapon, but at trial, he stated that defendant removed a hatchet from his truck. Pullis described the hatchet as having a metal handle with a black rubber grip. On cross-examination, Pullis explained that when he told police the weapon was a carpenter's hammer with a blue handle marked by black letters and a yellow triangle, he had not understood the difference between a hammer and a hatchet. Pullis agreed that the description of the hammer that he gave in his statement was a lie and explained that he just went along with the police when they told him that a hammer was used during the robbery. Pullis said that he lied in his earlier statement when he alleged that Fetterman struck the victim. He also claimed that he was under the influence of narcotics when he confessed.
Pullis testified that when he and Fetterman entered the gas station, he told the attendant to give him the money. When the attendant started running at them, Pullis hit him once with the blunt end of the hatchet. He too denied that any money was taken. He also denied having gotten blood on his clothing, but admitted that the men burned the gloves, masks, and clothing in a nearby field. When police inspected the fire pit on the Pullis property, they found only ashes.
Additionally, Pullis testified that, if he had been convicted at trial, he would have been sentenced to between ten and twenty years. He also testified that he was sentenced to five years subject to NERA in exchange for his testimony.
A search of defendant's car produced a hammer that did not match the description given by either Fetterman or Pullis.
There were no stains on the hammer head, and it was not submitted to the State Police Laboratory for testing. Police found no evidence of blood stains in defendant's car.
At trial, Konecke's narrative of her conversation with the attendant was admitted, after a N.J.R.E. 104 hearing, as a statement made for purposes of medical diagnosis or treatment pursuant to N.J.R.E. 803(c)(4). Kay's testimony as to his conversation with the attendant was admitted without any preliminary hearing because, during opening statements, defense counsel referred to it at length. As a result, the trial judge considered objections to its admission to be waived.
On appeal, defendant raises the following points:
THE RESPONDING OFFICER'S HEARSAY TESTIMONY, IN WHICH HE REPEATED WHAT THE VICTIM TOLD HIM ABOUT THE INCIDENT, AND THE PARAMEDIC'S HEARSAY TESTIMONY THAT THE VICTIM SAID THAT HE HAD BEEN ROBBED, DENIED DEFENDANT HIS SIXTH AMENDMENT AND CORRESPONDING STATE CONSTITUTIONAL RIGHTS TO CONFRONT AND CROSS-EXAMINE HIS ACCUSER.
THE JUDGE'S FAILURE TO GIVE ANY INSTRUCTIONS ON PRIOR INCONSISTENT STATEMENTS BY WITNESSES WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
UNDER THE CIRCUMSTANCES OF THIS CASE, PARTICULARLY DEFENDANT'S LIMITED ROLE IN THE CRIMES, DEFENDANT'S SEVEN-YEAR SENTENCE IS MANIFESTLY EXCESSIVE.
THE CONVICTION AND SENTENCE ON COUNT ONE FOR CONSPIRACY AND COUNT SIX FOR ATTEMPTED THEFT MUST BE VACATED BECAUSE THEY MERGE WITH THE ROBBERY CONVICTION.
We first address defendant's assertion that statements made by Kay and Konecke contained inadmissible hearsay in violation of the Sixth Amendment. "Because this is a criminal trial, we . . . must determine whether hearsay statements otherwise admissible under the Rules of Evidence should nonetheless be barred from use in a criminal trial as violative of the Confrontation Clause." State v. Buda, 195 N.J. 278, 298 (2008).*fn2
This inquiry will require that "we determine whether those statements were testimonial in nature." Ibid. Two recent New Jersey Supreme Court cases, Buda, supra, 195 N.J. at 299-302, and State ex rel. J.A., 195 N.J. 324 (2008), are instructive on this point.
The Sixth Amendment provides that a criminal defendant has the right "to be confronted with the witnesses against him."
U.S. Const. amend. VI. "[T]he Confrontation Clause expresses a preference for the in-court testimony of a witness, whose veracity can be tested by the rigors of cross-examination."
J.A. supra, 195 N.J. at 342. "In the constitutional sense, testimony is when '[a]n accuser . . . makes a formal statement to government officers.'" Ibid. (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed. 2d 177, 192 (2004)). "'Testimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.'" Buda, supra, 195 N.J. at 300 (quoting Crawford, supra, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed. 2d at 197). In contrast, non-testimonial statements of non-testifying witnesses are permissible at trial. Buda, supra, 195 N.J. at 298.
In Davis v. Washington, the Court distinguished between testimonial and non-testimonial statements as follows:
Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed. 2d 224, 237 (2006) (emphasis added).]
The Davis Court determined that a domestic violence victim's statements to a 911 operator were non-testimonial "[b]ecause the victim's 911 statements were not 'testimony' in the Sixth Amendment sense -- an account of a past event -- but rather a cry for help 'to enable police assistance to meet an ongoing emergency.'" J.A., supra, 195 N.J. at 346 (quoting Davis, supra, 547 U.S. at 828, 126 S.Ct. at 2277, 165 L.Ed. 2d at 240). The Davis Court considered the acts of the 911 operator to be acts of the police and made no finding on "whether and when statements made to someone other than law enforcement personnel are 'testimonial.'" Davis, supra, 547 U.S. at 823 n.2, 126 S.Ct. at 2274 n.2, 165 L.Ed. 2d at 238 n.2. Even if the statements made by Kay and Konecke are characterized as testimonial, and their admission was error, the error was harmless. It was not disputed that a robbery occurred, and that injury was inflicted upon the attendant.
Snyder, the co-defendants, and the gas station owner all independently established that a robbery was committed, during the course of which a weapon was wielded by one of the assailants. Nothing in the victim's statements identified defendant as a perpetrator; nor could they, as he remained in the car.
Furthermore, the hospital records were admitted for the limited purpose of establishing the victim's injury without objection, and they are not objected to on appeal. In regard to constitutional errors, "'[t]he harmless error standard . . . requires that there may be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. Ingram, 196 N.J. 23, 49 (2008) (quoting State v. R.B., 183 N.J. 308, 330 (2005) (internal quotations omitted)). Therefore, because the victim's statements to Kay and Konecke did not identify defendant in any fashion, and because the statements did no more than corroborate otherwise admissible statements made by others, the admission was harmless beyond a reasonable doubt. See Ingram, supra, 196 N.J. at 49.
We next address defendant's contention that the trial judge should have given Model Jury Charge (Criminal), Prior Contradictory Statements of Witnesses (Not Defendant) (1994). Defendant did not request this charge at trial. Accordingly, the omission must be considered applying a plain error standard:
[P]lain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The alleged error is viewed in the totality of the entire charge, not in isolation.
[State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006) (internal citations omitted).] Credibility is obviously crucial to this case, as only the co-defendants' testimony identified defendant as a conspirator in the robbery. Although the judge did not give the "Prior Contradictory Statements" instruction, he covered much of the same ground in the standard credibility instruction together with Model Jury Charge (Criminal), False in One-False in All (1991). After considering the charge as a whole, as we must consider it pursuant to State v. DiFrisco, 137 N.J. 434, 491 (1994), we cannot say it was error for the court to have failed to give the specific instruction.
Defendant also contends that his seven-year sentence was manifestly excessive. His argument lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add only a few comments.
In imposing defendant's sentence, the trial judge did not specify the aggravating and mitigating factors on which he relied in fashioning the sentence. He did, however, consider the substance of the factors in a manner that clearly identified them. Much was made during the sentence proceeding about the pre-sentence report writer's recommendation that defendant receive a five-year prison sentence. The trial judge rejected the recommendation based on his assessment of two factors.
Pursuant to N.J.S.A. 2C:44-1(a)(3), the trial judge found that there was a risk that defendant would commit other offenses because of his prior criminal history, which included two burglaries in 1986 and 1987, a conditional discharge, and two disorderly persons offenses. He took into account defendant's drug use, that the robbery was committed in order for the perpetrators to purchase drugs, and defendant's prior State prison sentence. The judge also focused on the need to deter this defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9), particularly in light of defendant's involvement in the crime with much younger accomplices. The judge awarded one mitigating factor, N.J.S.A. 2C:44-1(b)(11), that defendant's imprisonment would serve to work a hardship upon his mother, although he gave that factor slight weight. He found that no other mitigating factors were warranted. As a result of balancing the aggravating and mitigating factors, the judge imposed a sentence at the midpoint of the statutory range, or seven years. We see no reason to exercise our power of review over a trial court's sentencing decision when the justifications articulated on the record warrant the sentence imposed. See State v. Roth, 95 N.J. 334, 364-65 (1984).
The State and defendant agree that the matter should be remanded for sentencing so that the conspiracy and theft counts can be merged into the second-degree robbery count. We concur.
The conviction is affirmed and the matter is remanded for purposes of merger and correction of the JOC.