December 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN J. GILMORE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-04-0370-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges A. A. Rodríguez, Collester and C.S. Fisher.
Tried to a jury, defendant Kevin J. Gilmore was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count three). On May 13, 2005, Judge James C. Heimlich sentenced defendant to eleven and one-half years term of imprisonment with an eighty-five percent parole ineligibility pursuant to NERA to be served concurrently with a five-year sentence on another conviction.
During the early morning hours of November 10, 2002, Jan Sala, a gas station attendant, was in the middle of working his nightshift at the Citgo gas station on Edgar Road in Linden. At approximately 2:10 a.m. Sala was alone and sitting in the attendant booth when a black Pontiac Grand Am pulled up to the gas pump. After Sala opened the car's tank, the driver approached him with a "long knife," stating, "I'm an American guy, give me your money." Sala gave the man the $132 that was in his money pouch; the man quickly jumped into his car and sped away. Sala ran back to the attendant booth and called the police.
Sala testified that the assailant was a white male about twenty-five or thirty-years old and 5'8" tall. Sala said there was silver tape over the license plate, but he could make out the number 7. The car also had a black plastic sheet and silver tape over the right-side window. Sala further testified that during the incident he was "afraid for my life."
A similar robbery occurred the night before at the Raceway gas station on Route 9 south in Old Bridge. At the N.J.R.E. 404(b) pre-trial hearing in the instant case, Jaswinder Singh testified he was working the nightshift in the convenience store portion of the Raceway. At approximately 11:40 p.m., a white male in his early 20s wearing a hooded sweatshirt came into the store and asked for a carton of cigarettes. Singh turned around to reach the carton, and when he turned back, the man held out a ten- to twelve-inch knife and demanded money. Singh gave him the money from the register and then heard a car horn. He looked out the window and saw a woman sitting in a dark-colored, "older" car with duct tape on the windows. The man got in the car and sped away. At the hearing Singh was unable to identify defendant as the assailant.
Another similar robbery occurred on the same night as the Linden Citgo robbery. Ajit Singh began his nightshift on November 10, 2002, at 10:00 p.m. at the Sayreville Sunoco gas station. At the N.J.R.E. 404(b) evidentiary hearing Singh testified that at about 10:50 p.m. a black Pontiac with duct tape on the rear passenger-side window drove up to one of the pumps. As Singh started to open the gas tank, the man approached him with a fifteen-inch knife and demanded, "Give me the money, bastard." Singh started to slowly back away in order to alert his co-attendant who was in the restroom. The assailant kept repeating the demand for money, but when Singh started yelling the man ran to his car and drove off with a female in the passenger seat. Singh was able to see the license plate number as NV748S and gave it to the police. After being called to the East Brunswick police station the next morning, Singh identified the defendant as his assailant.
After considering all the testimony presented during the N.J.R.E. 404(b) evidentiary hearing, Judge Heimlich ruled that the testimony concerning the Sayreville Sunoco station robbery was admissible as other crimes evidence under the identification exception. However, he held that evidence of the Old Bridge Raceway station robbery was inadmissible because he found the State did not produce clear and convincing evidence that the assailant was the defendant.
During a pre-trial Miranda*fn1 hearing, East Brunswick Police Officer Craig Hoover testified that at about 4 a.m. on November 11, 2002, he stopped a black Pontiac with license plate number NV748S after receiving a report of the earlier robbery. Hoover saw the vehicle pulling into the driveway of defendant's mother's house. Defendant was driving the car and was alone at the time of the stop. He was placed in handcuffs and put in the back of the patrol car.
Hoover testified he then read defendant his Miranda rights, and the defendant acknowledged that he understood them. Hoover took defendant to East Brunswick police headquarters where once again he read defendant his Miranda rights and showed him a card with the rights written on it. Defendant signed the card, acknowledging its receipt. Hoover testified that defendant made certain inculpatory statements while waiting to be processed. He admitted that he had gone to the Sunoco station in Sayreville on the night of November 10, 2002, and that he had pulled a knife out of the car in order to "shake [the attendant] up."
Detective Kevin Zebro also testified at the Miranda hearing. He said he read the defendant his Miranda rights at about 5:15 a.m. on November 11, 2002, and defendant signed the form indicating he received his rights. The detective said defendant stated he was at the Sunoco station, but defendant then asked for an attorney, and the interview ceased.
After processing in East Brunswick, defendant was taken in the early morning hours of November 11, 2002 to the Sayreville police station. Sayreville Police Lieutenant John Zebrowski testified that he was made aware that the defendant had invoked his right to an attorney earlier that morning. However, later that morning defendant indicated he wanted to speak with the police. Lieutenant Zebrowski told him that the police would have to re-Mirandize him, and the defendant said he understood. Defendant was again advised of his Miranda rights, and he signed another card acknowledging the receipt of his rights. Defendant then gave a tape-recorded statement admitting to the Sayreville gas station robbery. Lieutenant Zebrowski testified that neither the defendant nor his family was threatened and that defendant was not coerced or forced to give a statement.
Defendant testified at the Miranda hearing that he was arrested outside his mother's home on the morning of November 11, 2002 and advised of his rights while waiting in the police car. However, he did not recall being re-advised of his rights at the East Brunswick police station. He testified that he asked for an attorney but that his request was ignored. He also denied making any inculpatory remarks or statements to Officer Hoover at the East Brunswick Police Department. He testified that the only reason he gave a statement to the Sayreville police was because they threatened to put his pregnant girlfriend in jail.
Judge Heimlich found the testimony of the police officers to be credible and found significant parts of defendant's testimony incredible and that defendant's statements were given freely and voluntarily after receipt of his Miranda warnings. He held that defendant's statement to the Sayreville police was inadmissible under N.J.R.E. 403 because the prejudice to defendant outweighed its probative value but that the State could produce proof of the Sayreville incident under the identification exception of N.J.R.E. 404(b).
Following defendant's conviction by jury verdict, Judge Heimlich merged counts two and three into count one and sentenced defendant to an eleven and one-half year term of imprisonment with an eighty-five percent NERA period of parole ineligibility to be served concurrently with the five-year term defendant received after having pled guilty to the Sayreville robbery.
On appeal defendant presents the following arguments:
POINT I - REFERENCE TO THE DEFENDANT INVOKING HIS RIGHT TO AN ATTORNEY WHICH OCCURRED DURING THE DIRECT TESTIMONY OF DETECTIVE ZEBRO VIOLATED THE DEFENDANT'S SIXTH AMENDMENT AND MIRANDA RIGHTS UNDER FEDERAL AND NEW JERSEY STATE LAW.
POINT II - THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING THE PROSECTUTOR TO CROSS-EXAMINE DEFENSE WITNESS LINDA GILMORE CONCERNING HER "SILENCE" AFTER THE ARREST OF THE DEFENDANT.
POINT III - THE TRIAL COURT COMMITTED HARMFUL ERROR IN ADMITTING TESTIMONY CONCERNING THE SAYREVILLE GAS STATION ROBBERY BECAUSE THE STATE FAILED TO CLEARLY AND CONVINCINGLY ESTABLISH THE FOURTH PRONG FOR ADMISSIBILITY UNDER STATE V. COFIELD AND BECAUSE THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD.
POINT IV - THE DEFENDANT'S ORAL STATEMENTS MADE TO DETECTIVE ZEBRO SHOULD HAVE BEEN SUPPRESSED.
A. THERE IS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDINGS.
B. THE POLICE FAILED TO "SCRUPULOUSLY HONOR" THE DEFENDANT'S INITIAL REQUEST TO SPEAK WITH AN ATTORNEY.
POINT V - THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GIVE THE JURY, SUA SPONTE INSTRUCTIONS PURSUANT TO STATE V. PETERKIN, STATE V. EARLE, AND STATE V. GUNTER.
POINT VI - THE TWELVE (12) YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE TRIAL COURT ENGAGED IN A FAULTY DELIBERATIVE PROCESS THAT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE V. NATALE.
A. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ENGAGING IN A QUALITATIVE REVIEW OF THE AGGRAVATING FACTORS PRESENT WHICH JUSTIFIED IMPOSING A BASE SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM 10 YEAR SENTENCE.
B. THE TRIAL COURT'S "DELIBERATIVE PROCESS" VIOLATED THE DEFENDANT'S
CONSTITUTIONAL RIGHTS UNDER STATE V. NATALE.
Defendant first contends that Detective Zebro's trial testimony referencing the defendant's request for counsel after his arrest was improper and violated his rights under the Sixth Amendment and Miranda. As no objection was made at the time of the testimony, our scope of review is under the plain error rule whereby defendant must show that the error was "clearly capable of producing an unjust result." R. 2:10-2. See State v. Macon, 57 N.J. 325, 336 (1971) (stating that the possibility of an unjust result must be "sufficient to raise reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached").
The subject testimony of Detective Zebro by the prosecutor was as follows:
Q: Did he indicate whether or not he was with anybody in that vehicle?
A: No, he wasn't, or, no, he didn't.
Q: Did he indicate where he was coming from prior to the arrest?
A: Yeah, he said he was coming from his girlfriend's house in Jamesburg.
Q: Did there come a time when the defendant stopped speaking to you?
A: Yes, there was.
Q: After the defendant stopped speaking with you, what if anything, did you do with him?
A: Well, we started to ask him some more questions. And at that time he invoked his attorney, so we terminated the interview.
Defendant argues that the prosecutor improperly elicited the detective's comment so that the jury would draw an unfavorable inference against the defendant and also violated his Miranda right to remain silent.
Our decision in State v. Carroll, 256, N.J. Super. 575, 601 (App. Div. 1992), is on point. We held that a State investigator's testimony that the questioning of a defendant ceased when he asked for an attorney was not a violation of the defendant's right to remain silent but was elicited to show that the questioning had a logical ending. Id. at 601. So in this case, Zebro's testimony was not improperly elicited but rather designed to show an ending to the questioning. Moreover, this brief testimony was the only reference to defendant's invocation of his right to counsel. It was not mentioned during the remainder of the case or during the prosecutor's summation. Accordingly, we find that the detective's testimony did not constitute plain error.
Defendant's next argument is that the trial judge abused his discretion and deprived defendant of a fair trial by permitting the prosecutor to question Linda Gilmore, defendant's mother, as to her silence by not coming forward prior to trial with alleged exculpatory evidence. Linda Gilmore testified at trial that she drove her black Pontiac to a gas station in Linden on November 10, 2002, and purchased gas with cash. On cross-examination the prosecutor asked, "At any time from November 2002, until today, did you tell anybody with regard to law enforcement as to the fact that you had been in a gas station in Linden?" Defendant argues that this questioning was designed to draw an adverse inference against him and negatively effect his constitutional right against self-incrimination. There is no merit to this argument.
Our Supreme Court has held that testimony of a witness' pre-trial silence may be elicited to challenge credibility. As stated by the Court in State v. Silva, 131 N.J. 438 (1993):
There are many situations, however, where the natural response of a person in possession of exculpatory information would be to come forward in order to avoid a mistaken prosecution of a relative or a friend. In such situations, the failure of a witness to offer the information when it would have been natural to do so might well cast doubt on the veracity of the witness' trial testimony. A witness's silence in such circumstances is akin to a witness's "prior inconsistent statement," and, therefore, has probative value.
[Id. at 446, quoting Commonwealth v. Brown, 416 N.E.2d 218, 224 (Mass. App. Ct. 1981).]
In this case, the witness' silence of more than two years with regard to alleged exculpatory information could properly be used to cast doubt on her veracity as it would have been natural for her to come forward with the information prior to trial. Therefore, under Silva her silence was akin to a prior inconsistent statement, and the judge properly allowed the questioning.
Defendant next argues that the trial court erred in permitting testimony of the Sayreville robbery as other crimes evidence pursuant to N.J.R.E. 404(b). We disagree.
Evidence of other crimes is not admissible to prove a defendant's disposition to commit crimes and to show that he acted in conformity with his disposition. N.J.R.E. 404. However, N.J.R.E. 404(b) provides that:
Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Our Supreme Court has set forth a four-part test for the admissibility of other crimes evidence under N.J.R.E. 404(b):
(1) the evidence of the other crime must be admissible as relevant to the material issue;
(2) it must be similar in kind and reasonably close in time to the offense charged;
(3) the evidence of the other crime must be clear and convincing; and
(4) the probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992).]
See also State v. Williams, 190 N.J. 114, 122 (2007).
Our scope of review of a trial court's ruling under N.J.R.E. 404(b) to admit other crimes evidence is very narrow and is to be reviewed under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991); State v. Ramseur, 106 N.J. 123, 266 (1987); see also State v. DiFrisco, 137 N.J. 434, 496 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996) (stating the trial judges are afforded "broad discretion" in applying the balancing test). Therefore, it is only when there is a clear error of judgment that we will disturb a trial court's decision under the balancing test provided in Cofield. Id. at 496-97.
Defendant's argument is that Judge Heimlich applied an erroneous standard under N.J.R.E. 404(b) based upon comments he made prior to enumerating the four prongs of Cofield in response to a remark made by defense counsel. The judge stated, "You know that, there's an old saying that anything the State presents against defendant is prejudicial. [The] standard is whether its unfairly prejudicial." Notably, the trial judge then enumerated and applied the four Cofield prongs prior to reaching his decision to admit the testimony. We find that there is nothing in the off-hand comment of the court to indicate the application of an erroneous standard.
Defendant further contends that the oral statements he gave to Detective Zebro should have been suppressed because of insufficient evidence to support Judge Heimlich's findings at the Miranda hearing. He further asserts that the judge erred by finding the police officers' testimony credible and his testimony not credible. There is no merit to this argument. We also note in passing that Detective Zebro's testimony as to what the defendant said to him at the time of the arrest was consistent with defendant's testimony at the Miranda hearing.
Defendant next asserts that he did not knowingly and voluntarily waive his Miranda rights. We must review the totality of the circumstances and determine whether there is sufficient credible evidence to support the determination of the trial judge. State v. Knight, 183 N.J. 449, 462-63 (2005). There is ample evidence in the record that the defendant's admissions were voluntarily given after he received his Miranda warnings. The trial judge based his ruling on his finding that the detective's testimony was credible, and we see no reason to disturb that finding.
Defendant's next argument relates to the loss of the original photograph of the array shown to Jan Sala, the victim in the Linden robbery. During the trial it was discovered that the original version of the array could not be found and only photographic copies were available. Defense counsel agreed with the prosecutor on a stipulation that the jury be told that photo number two was the defendant and that Sala identified the individual in photo number four as his assailant. Defense counsel waived any issue of bad faith and agreed with the State that the original was simply lost.
Defendant now argues that the trial court abused its discretion by failing to give the jury a sua sponte instruction that the jury should draw a favorable inference for the defendant because the State lost the original photograph of the array. He cites to State v. Peterkin, 226 N.J. Super. 25 (App. Div.), certif. denied, 114 N.J. 295 (1988), State v. Earle, 60 N.J. 550 (1972), and State v. Gunter, 231 N.J. Super. 34 (App. Div. 1989). While these cases discuss the need to preserve evidence, particularly identification evidence, they are all distinguishable from the instant case. First of all, the testimony in those cases was that the defendants were correctly identified. Moreover, the evidence was completely unpreserved, and no copies were available. In this case Mr. Sala identified the wrong person in the array, and a photographic copy of the original array was introduced into evidence pursuant to the stipulation.
Finally, defendant contends his sentence was manifestly excessive and contrary to State v. Natale, 184 N.J. 458 (2005). To the contrary, our review of the record convinces us that Judge Heimlich followed sentencing guidelines and imposed a reasonable term of imprisonment. The judge found as aggravating factors the risk that defendant would commit another offense, his prior record, and the need to deter. He found no mitigating factors. The statutory range of imprisonment for a first-degree robbery is ten to twenty years (N.J.S.A. 2C:43-6(a)(1)). Judge Heimlich concluded that defendant should be sentenced above the minimum term due to his prior record and sentenced him to a term of one and one-half years more than the minimum sentence for the crime. We find no abuse of discretion. See State v. Roth, 95 N.J. 334, 365-66 (1984).
Finally we find that Natale is inapplicable since defendant did not receive a sentence that exceeded the then-existing presumptive term.