November 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES E. JAMES, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-03-0433.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Sapp-Peterson and Alvarez.
Defendant James E. James, Jr. appeals his second-degree robbery conviction, following jury trial, and the twenty-year mandatory extended-term sentence imposed. He raises for our consideration the following points:
BECAUSE THE POLICE WERE NOT JUSTIFIED IN STOPPING THE CAR WHICH THE DEFENDANT WAS DRIVING THE EVIDENCE DISCOVERED THEREBY SHOULD HAVE BEEN SUPPRESSED. (U.S. CONST., Amends. IV and XIV; N.J. CONST. , Article I, [§] 7). (Not Raised Below).
THE "SHOWUP" PROCEDURE USED BY THE POLICE IN THIS CASE VIOLATED THE ATTORNEY GENERAL'S GUIDELINES AND WAS IMPERMISSIBLY AND UNNECESSARILY SUGGESTIVE; THEREFORE, THE TRIAL COURT SHOULD HAVE EXCLUDED THE IDENTIFICATIONS.
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below).
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR ASSERTED "FACTS" NOT IN THE RECORD AND VOUCHED FOR THE CREDIBILITY OF THE STATE[']S WITNESSES IN HER SUMMATION. (Partially Raised Below).
A. The Prosecutor Misrepresented the Record.
B. The Prosecutor Vouched for the State's Witnesses.
THE DEFENDANT'S MANDATORY EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:43-[7.1(b)], OF A TWENTY[-]YEAR BASE TERM, WITH AN EIGHTY-FIVE PERCENT PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND MUST BE REMANDED UNDER STATE [v]. THOMAS[, 195 N.J. 431 (2008)]. (Not Raised Below).
A. The Defendant's Twenty-Year Extended Term Is Manifestly Excessive.
B. The Defendant Is Entitled To A Remand Pursuant To State v. Thomas.
We have carefully considered these arguments in light of the record and the applicable law, and find the arguments to be without sufficient merit to warrant reversal of defendant's conviction or the sentence imposed. Accordingly, we affirm.
We glean the following facts from the trial record. On November 24, 2004, around 7:50 p.m., James entered a Mandee department store located on Route 72 in Manahawkin. At some point he approached the register being operated by Angela Peffley, who was on the telephone at the time. Defendant was carrying a velour jumpsuit. Another employee, Eliesia Fairhurst, was near the register and offered to ring up defendant's item, but defendant indicated that he wanted Peffley to do so. Peffley later described defendant to police as having a mustache and strawberry blonde hair, wearing a hat and a Guess sweat shirt and denim jeans. When Peffley turned her attention to defendant, he announced to her and Fairhurst that it was a robbery and instructed them to give him the money and go to the back room. Defendant had one hand in his sweat shirt. Both Fairhurst and Peffley believed that defendant was concealing a gun in his sweat shirt, although they never saw one.
Fairhurst informed defendant that neither she nor Peffley could open the register without a manager's key. She then explained to him that she could call the manager over the loudspeaker and defendant instructed her to do so. Peffley called store manager Cynthia Rafferty over the loudspeaker to report to the register. Approximately three minutes later, Rafferty arrived. Defendant told her it was a "stick-up" and instructed her "to take the money out of the registers, to put it in the Mandee's bag that was on the table with a velour outfit, and not to make a scene[.]"
Rafferty opened all three cash registers in the back of the store and placed all of the cash, a total of $744, in the bag containing the velour outfit. Defendant's one hand remained inside his sweat shirt. The three employees then proceeded to the back room, as defendant had instructed them to do. Rafferty went into the store office and called 9-1-1, and Fairhurst and Peffley waited for about a minute and then looked out of the room. Defendant was gone at that point. Rafferty exited the room to lock the front door. She later described defendant as wearing "denim jeans, black sweat shirt that had writing, and a Miami Dolphins baseball cap."
Patrolman Robert Conforti of the Stafford Township Police Department arrived shortly thereafter. He interviewed the employees and obtained a description of the defendant which he broadcast to surrounding police units. Specifically, he described the suspect as a white male in his forties, about five feet six inches tall, weighing 150-159 pounds, unshaven, mustached, and wearing a black sweat shirt and a green and white Miami Dolphins hat.
While the investigation was unfolding at the Mandee's store, Ryan DelVecchio, who worked for a nearby auto dealership also located on Route 72, had just left work and was proceeding westbound on Route 72 in the fast lane. He observed a dark-colored Taurus exiting the strip mall where Mandee is located. The Taurus crossed the median into his lane of travel, nearly striking his vehicle. Although he tried, DelVecchio was unable to get the Taurus' license plate number before it turned to enter the Garden State Parkway going south. He immediately reported his encounter to the police. Based upon this information that Conforti received about the vehicle, he broadcast to units the following information: "a black or dark-colored Ford vehicle, heading southbound on the Parkway with a white male, between 45 to 50 years of age, wearing a Miami Dolphins hat, Guess sweat top and a pair of jeans."
State Trooper Mach Jackson was working that evening patrolling the Garden State Parkway between mileposts 44 and 50.
Shortly after receiving the broadcast alert for the Taurus, he spotted a dark-colored Taurus at milepost 44. He stopped the Taurus at milepost 42.8 in the southbound lane and approached the driver's side, where he asked the driver for his driving credentials. Mach spotted a Miami Dolphins cap and a brown women's sweat suit still bearing price tags on the back seat. He returned to his vehicle to confirm that the vehicle matched the description broadcasted and then returned to the Taurus to retrieve defendant's credentials. Defendant, however, had no identification, but said that his name was James E. James. Trooper Jackson searched the vehicle, but he did not remove any evidence from the vehicle. The vehicle was towed to the police station where it was inventoried and secured. Police recovered a Miami Dolphins "shark tooth" hat, a brown velour jogging suit with a Mandee's tag on it, and $744 in cash from the vehicle.
Following his arrest, police initially transported defendant to the Bass River Headquarters. He was subsequently turned over to Detective Frank Heim and Patrolman Kenneth Schiattarella of the Stafford Township Police Department. They placed defendant in an eight-by-eight foot interview room in the detective bureau. The three Mandee's employees who witnessed the robbery also came to the Stafford Township Police Department. They were separated from each other and placed in three different rooms while they provided written statements. They were also told that officers thought "they had the guy, and they wanted [them] to take a look at him to see if it was him or not." The three employees, each separately, were brought into a side room equipped with a one-way mirror and were asked to "take a look at a suspect to attempt to identify him." Both Fairhurst and Rafferty identified defendant as the man who committed the robbery. However, Peffley was unable to make a positive identification of defendant.
Defendant was indicted on a single charge of first-degree robbery, N.J.S.A. 2C:15-1. After the jury was impaneled but prior to any testimony being taken, the court conducted a hearing to determine whether the procedure utilized by police to identify defendant was so impermissibly suggestive as to render the identification of defendant by Fairhurst and Rafferty unreliable. N.J.R.E. 104. The court denied the motion to bar presentation of evidence related to the identification of defendant at the police station. After a two-day trial, the jury acquitted defendant of first-degree robbery but found him guilty of second-degree robbery.*fn1
Defendant was sentenced on January 27, 2006. The court granted the State's motion to impose a mandatory extended term, and sentenced defendant to twenty years imprisonment pursuant to N.J.S.A. 2C:43-7.1(b) (Three Strikes Law). The court also imposed an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On March 20, 2006, the court entered an amended judgment of conviction to reflect 423 days of credit for time defendant had already spent in custody prior to conviction and sentencing.
We initially observe that prior to trial, defendant did not move to suppress the evidence seized from the vehicle he was operating. "Rule 3:5-7 plainly requires a motion to suppress to be made before trial and in a timely manner. Failure to make a timely motion results in a waiver of a defendant's right to object to the evidence's admission at trial." State v. Martin, 87 N.J. 561, 566-67 (1981). Consequently, defendant is barred from challenging the legality of the search and seizure of items from his vehicle.
Defendant contends in Point II of his brief that the trial court should have excluded the identifications in this case because the showup procedure used by officers violated the Attorney General (AG)'s Guidelines and was impermissible and unnecessarily suggestive. He urges that pursuant to the AG's Guidelines, officers should have set up a live lineup containing a minimum of four non-suspects who resemble defendant as closely as possible.
The determination of whether a showup is constitutional under the Fourteenth Amendment is made "by evaluating the totality of the circumstances." State v. Herrera, 187 N.J. 493, 502 (2006) (citing Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1973, 18 L.Ed. 2d 1199, 1206 (1967)). In reviewing an eyewitness' identification, unnecessary suggestiveness alone does not require the exclusion of evidence. Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed. 2d 401, 412 (1972). Rather, the test is "whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive." Id. at 199, 93 S.Ct. at 382, 34 L.Ed. 2d at 411 (internal quotations omitted); Herrera, supra, 187 N.J. at 503 (2006). The court should weigh the 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. [Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 2245, 53 L.Ed. 2d 140, 154 (1977).]
Thus, the court must first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04.
In Herrera, supra, the Court stated, "[w]e start with the commonsense notion that one-on-one showups are inherently suggestive. Those showups by definition are suggestive because the victim can only choose from one person, and, generally, that person is in police custody." Thus, the one-on-one showup identification procedure to which defendant was subjected in the present matter was "inherently suggestive."
This fact, in our view, does not render the identification procedure per se improper and unconstitutional. See State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003). "Our case law recognizes . . . that standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Herrera, supra, 187 N.J. at 504 (citing State v. Wilkerson, 60 N.J. 452, 461 (1972)). Because defendant directly confronted Rafferty and Fairhurst with his demands and instructions while at Mandee's, both women had the opportunity to observe defendant while in the store for at least a few minutes. Both witnesses separately provided similar descriptions of defendant and had the opportunity to observe defendant again, albeit in police custody, within hours after the robbery. Under these circumstances, the identifications were reliable and we find no error in the court's conclusion that the showup was not impermissibly suggestive.
As to defendant's allegation in Point III that the judge's instruction to the jury regarding his right to remain silent violated his state and federal rights to remain silent by suggesting that he had an obligation to testify, defendant did not object to the judge's charge to the jury. On appeal, however, defendant contends the inclusion of the word "even" in that portion of the charge addressing his right to remain silent underscored the fact that he did not testify.
The portion of the instruction addressing defendant's decision not to testify and to exercise his right to remain silent did not mirror the model jury charge. Nonetheless, when the charge is considered in its entirety, the judge fully explained to the jury the defendant's constitutional right to remain silent, the presumption of his innocence, and the State's burden to prove the charge against him with proof beyond a reasonable doubt. Thus, we find no error in the isolated reference to the word "even," and if error, it was not capable of producing an unjust result. R. 2:10-2.
Defendant next argues that certain statements made by the prosecutor during summation asserted facts that were not in evidence. Defendant contends further that the prosecutor vouched for the witnesses' credibility.
In the first statement, the prosecutor told the jury, "You need to think, what's believable here? What possible motive would these three young girls have to come in and make up a story? If they were going to make up a story, wouldn't they say he had a gun?" No objection was raised to this statement. Defendant claims that this statement improperly vouched for the witnesses' credibility. We disagree.
It is well-settled that a prosecutor may not express a personal belief or opinion as to the truthfulness of a particular witness' testimony. State v. Marshall, 123 N.J. 1, 154 (1991). Apart from the fact that this was an isolated remark not repeated by the prosecutor, this remark was simply in response to defendant's attack upon the credibility of the witnesses' testimony related to whether defendant may have been armed. Moreover, defense counsel commenced his summation by telling the jury:
Ladies and gentlemen, you know now that my client, James E. James, Jr., has been charged with the crime of first-degree robbery. I'd like to begin by stating to you that on November 24th, 2004, Mr. James went into the Mandee's store, demanded a sum of money, he took it, didn't belong to him. He left.
What he did was wrong. It was illegal.
It's a crime. And he shouldn't have done it. And I would never think to stand before you and try and convince you otherwise.
That's the reality of the situation; however, that does not mean that what he did is a first-degree robbery.
It is clear that the crux of the defense was that although defendant committed a robbery, he did not do so while armed nor with the threat of bodily harm. Since the jury acquitted defendant of first-degree robbery, even if the prosecutor's comment is viewed as impermissibly vouching for the credibility of the witnesses, the error was not capable of producing an unjust result. R. 2:10-2; State v. R.B., 183 N.J. 308, 332-33 (2005).
In the second statement, the prosecutor stated that defendant told the store employees, "[T]his is a robbery, do what I say and you won't get hurt, with his hand under his sweat shirt, simulating that he had a weapon." Defense counsel immediately objected, saying, "[T]he one phrase, I don't remember that actually being in evidence, 'do what I say and you won't get hurt.'" The court responded, "Well, the jury's recollection will control. All right, ladies and gentlemen, of course, if the attorneys say anything that -- in their recollection which differs from your recollection of the evidence, you're to be guided by your own recollection of the evidence in the case."
None of the witnesses testified that defendant told them that if they did what he said, they would not get hurt. However, defendant announced to the employees that "it was a robbery" and then concealed one hand in his sweat shirt, leading the employees to believe that he had a gun, although they admitted they never saw any weapon. The employees followed each of defendant's instructions. Thus, even without such a statement from defendant, it is reasonable to infer that the employees followed defendant's instructions out of fear that they would be harmed if they did not do so. Further, in view of the defendant's acquittal of first-degree robbery, this misstatement did not prejudice defendant to the point of causing a result that would otherwise not have occurred. Therefore, we do not find that this misstatement was so egregious that defendant was deprived of a fair trial.
Finally, we reject, as lacking in merit, defendant's remaining argument that imposition of a mandatory extended term "at the very top of the extended term for second-degree offenses" was excessive. We add the following comments.
Defendant was sentenced eight months before the Supreme Court decided State v. Thomas, 188 N.J. 137 (2006). In Thomas, the Court held that in balancing the aggravating and mitigating factors for purposes of imposition of a mandatory extended term, the trial judge "shall not be required to start from the fixed point of the previously applicable statutory presumptive sentence for the extended-term range." Id. at 154 (citing State v. Natale (Natale II), 184 N.J. 458, 489 (2005)).
Here, at the time defendant was sentenced, he had eighteen prior convictions for second-degree robbery and nine prior convictions for first-degree robbery. The court noted that the underlying offense had been committed less than one year after defendant had been released from parole following a lengthy state prison sentence. The court noted that defendant met the statutory criteria for sentencing as a repeat violent offender and that "there's no longer the presumptive term and the [c]court must [assess] the aggravating and mitigating factors to determine what the appropriate sentence for this defendant is."
The court found three aggravating factors and no mitigating factors. The court stated further:
Frankly, this Court cannot recall any defendant having accumulated the number of first- and second-degree robberies that this defendant has been able to accumulate over his 43 years on this earth, and finally the Court is mindful under [State v. Dunbar, 108 N.J. 80 (1987)] that the two convictions which make this defendant eligible for the mandatory extended term will not be given the same weight for purposes of sentencing but nonetheless there are still numerous first- and second-degree robberies that remain in terms of the Court's assessment of aggravating factor six.
The Court's focus here leads to the inescapable conclusion that Mr. James has a propensity for dangerous and persistent criminal conduct which is a threat to the community. His comments and expression of remorse today which appear to be sincere are[,] in the final analysis[,] perplexing to this Court. Only Mr. James can fully understand what he was thinking when he was only out of state prison for nine months and undertook the offense at hand. The purpose of sentencing is to punish the offense.
Given those factors this Court is satisfied that the maximum sentence of 20 years is appropriate.
We discern no basis to interfere with the sentence imposed. Defendant met the criteria for imposition of a mandatory extended term for repeat violent offenders. N.J.S.A. 2C:43-7.1(b). The judge appropriately considered and found three aggravating factors and no mitigating factors. N.J.S.A. 2C:44-1(a) and (b). Nothing in the sentence imposed shocks the conscience. State v. DeRoxtro, 327 N.J. Super. 212, 226 (App. Div. 2000) (citing State v. Gardner, 113 N.J. 510, 516 (1989) and State v. Roth, 95 N.J. 334, 362-65, 1984)).