On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-05-0652-I.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.S. Fisher.
Tried to a jury, defendant was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one), and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count two). Following the grant of the State's motion for an extended term, he was sentenced on March 18, 2005, to a custodial term of thirty years subject to the No Early Release Act (NERA) on count one and a concurrent term of nine years on count two. On this appeal defendant makes the following arguments:
POINT I - THE COURT ERRED WHEN IT PERMITTED NIELSON TO RETAKE THE STAND, IN VIOLATION OF A SEQUESTRATION ORDER, AND MAKE AN UNRELIABLE VOICE-IDENTIFICATION OF WILLIAMS. (Partially raised below.)
A. THE TRIAL COURT ERRED IN PERMITTING NIELSON TO REMAIN IN THE COURTROOM.
B. THE VOICE IDENTIFICATION WAS INHERENTLY UNRELIABLE AND HIGHLY PREJUDICIAL.
POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO CHARGE THE JURY AS TO IDENTIFICATION. (Not Raised Below.)
POINT III - THE TRIAL COURT ERRED WHEN IT PERMITTED OFFICER ALLAIRE TO TESTIFY THAT AN ARREST WARRANT HAD BEEN ISSUED FOR WILLIAMS, DENYING HIM OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1. (Not Raised Below.)
POINT IV - WILLIAMS WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE COURT INCORRECTLY ANSWERED JURY QUESTIONS SUBMITTED. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, ¶ 1. (Not Raised Below.)
A. THE COURT ERRED WHEN IT INFORMED THE JURORS OF THE ARREST WARRANT.
B. THE TRIAL COURT ERRED WHEN IT COMMENTED ON FACTS NOT IN THE EVIDENCE.
POINT V - THE TRIAL COURT ERRED WHEN IT DENIED WILLIAMS' REQUEST FOR A POSTPONEMENT AND FAILED TO ADVISE HIM THAT HE COULD REPRESENT HIMSELF, RATHER THAN PROCEED WITH UNACCEPTABLE COUNSEL.
POINT VI - THE TRIAL COURT ERRED WHEN IT DENIED THE SUPPRESSION MOTION BECAUSE PROBABLE CAUSE WAS NOT ESTABLISHED OR DETAILED IN THE AFFIDAVIT AND WILLIAMS WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION DURING THE SUPPRESSION HEARING U.S. CONST. AMEND. IV; N.J. CONST. ART. I, ¶ 7.
A. RANDOLPH'S STATEMENT TO POLICE WAS UNRELIABLE AND FAILED TO ESTABLISH PROBABLE CAUSE.
B. THE WARRANT AFFIDAVIT FAILED TO ESTABLISH PROBABLE CAUSE.
C. WILLIAMS WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION DURING THE SUPPRESSION HEARING.
POINT VII - THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE, AS WILLIAMS WAS NOT ELIGIBLE FOR AN EXTENDED TERM.
POINT VIII - THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE CONVICTION FOR AGGRAVATED ASSAULT WITH THE ROBBERY CONVICTION. (Not Raised Below.)
POINT IX - WILLIAMS' SENTENCE IS MANIFESTLY EXCESSIVE.
On March 7, 2005, at about 4:15 a.m. Jamie Nielson, a garbage truck driver, followed his usual routine and parked his truck in a well-lit area at the side of the Lakewood Sin-Gin gas station. He was listening to the radio while waiting for the gas station to open at 5 a.m. Suddenly the driver's door was yanked open, and two men began hitting Nielson, one beating him with a blunt object wrapped in a wool cap. That assailant yelled, "Give me the money, you motherfucker, or I'll kill you. I want the money. Give me the money from the truck." Nielson locked his arm in the steering wheel, but he was pulled onto the pavement. While one man, later identified as Vernon Randolph, searched the truck cab for money, the other, subsequently identified as defendant, continued to beat Nielson and slam his face into the pavement while demanding money. Nielson tried to crawl under the truck, but he was dragged out. About $40 to $50 was taken from his shirt pocket along with his driver's license, credit cards, and other papers before the assailants fled. Nielson was left bleeding and unconscious on the pavement. After he regained consciousness, Nielson managed to climb back into the truck and find his cell phone. He called 9-1-1 for help and again passed out. His jaw was shattered, his teeth knocked out, his nose broken, his shoulder permanently injured, and he suffered lacerations to his head which required eighteen stitches to close.
Lakewood police officer Pat Carney was the first to respond. Nielson gave him a general description of his assailants as "two black guys, one Hispanic black." This description was broadcast on the police radio shortly after 4:30 a.m. and was heard by Officer Robert Anderson who noticed two men walking on Route 9 who fit the description. When he turned his patrol car around, the men ran in different directions. Anderson pursued Randolph and radioed a description of the other suspect as a stocky, six-foot male wearing a light khaki or light green waistcoat with a grey hooded sweatshirt pulled up over his head.
Officer Patrick Carney searched the area near the Sin-Gin station. He saw footprints in the light dusting of snow that had fallen and followed the trail from the gas station to the backyard of a nearby house where he found $48 in cash and an insurance bill with Nielson's name on it.
Meanwhile, Anderson was able to apprehend Randolph in the parking lot of a nearby shopping center. After other officers arrived, Anderson patted down Randolph for weapons. He noticed blood stains on his pants which subsequent DNA analysis identified as Nielson's blood. At Lakewood police headquarters Randolph was advised of his Miranda*fn1 rights and gave a taped confession during which he identified defendant as the other assailant. A warrant was issued for defendant's arrest.
Defendant was apprehended on March 18, 2005, almost two weeks after the assault and robbery. Officer Steve Allaire was on foot patrol at about 2 a.m. investigating a report of trespassers at a Lakewood apartment complex. Allaire and his partner saw two men in the area and began to question them. Allaire heard a door close, and he saw defendant walking towards him. Allaire knew defendant by sight and knew there was a warrant for him. He arrested defendant and took him to headquarters where items of defendant's clothing were seized, including boots, a black balaclava,*fn2 a blue head wrap, and gloves. Stains on one of the gloves were subsequently determined by DNA analysis to be blood of Jamie Nielson.
After Randolph pleaded guilty, defendant went to trial. Jamie Nielson was the State's first witness. He described his assault and robbery and gave the following description of his assailants:
Q: Now, you indicated the one person. Were you able to get a look at these two people?
A: No, not a good look. It's more a general look that I seen them.
Q: Describe for us, if you can, what you do remember from what they looked like?
A: One was a Black man, tall, skinny. One was a short I figured Hispanic, Black, a dark-skinned Black. You know, I don't know what you call it, but a dark-skinned Hispanic person, heavy set.
Q: Okay. So if I understand you right, one person was a taller thinner person?
A: Yes. The Black person was tall and thin.
Q: And the second person?
A: The second, this Spanish-looking Black person, was short and stocky.
Q: Now, when you got dragged from the car - from the truck, who was beating you while you were on the ground?
A: The shorter stocky person.
Q: Okay. And during this beating, did he say anything to you?
A: Oh, yes, constantly berating me, threatening me that he's going to kill me. "I want the money." I don't know what he was talking about, you know. He just kept cursing and threatening, and he just kept beating.
Nielson was then asked about identifying his assailants.
Q: Now, sir, if you were ever to see any of these individuals again, would you be able to recognize them?
A: Truthfully, visually, no, no. But the one person had a voice that I can recognize that's burnt in my memory, yes.
Q: You haven't heard that voice since?
On cross-examination Nielson repeated his inability to make an identification by sight and his belief that he could identify the voice of his assailant.
Q: Now, you testified that you didn't see, really see anything, did you?
A: I - everything happened so quick, I didn't see a face. I knew they was - you know, what happened to me, I know it was ...