January 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES C. MARLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 05-12-1564-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically December 11, 2008
Before Judges Winkelstein and Gilroy.
A Middlesex County Grand Jury returned an indictment against defendant, James C. Marlin, and co-defendant, Edwin M. Villegas. The grand jury charged defendant with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and third-degree unlawful possession of a weapon, a BB gun, without having obtained a permit, N.J.S.A. 2C:58-4 (count six). In addition, the grand jury charged co-defendant with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4)(count three), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four). On the same day, the grand jury separately indicted defendant, charging him with certain persons not to have possession of a weapon, N.J.S.A. 2C:39-7.
On April 17, 2006, co-defendant pleaded guilty to count two, first-degree armed robbery, and count five, second-degree possession of a weapon for an unlawful purpose. As part of the plea agreement, the State would recommend that he be sentenced as a second-degree offender for the first-degree offense, and receive a seven-year prison term with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Also as part of the plea agreement, co-defendant was to provide "truthful testimony" concerning defendant at trial.
Following a trial from October 24, 2006, to November 3, 2006, a jury convicted defendant of counts one, two and five, and acquitted him of count six and of the single count under the second indictment. Approximately two weeks later, the court sentenced co-defendant as a second-degree offender for first-degree armed robbery, imposing a five-year prison term with an eighty-five percent period of parole ineligibility under NERA, and a concurrent five-year prison term for his conviction for second-degree possession of a weapon for an unlawful purpose. The court dismissed the remaining counts against him.*fn1
On February 2, 2007, immediately after the trial court denied defendant's motion for a new trial, the court sentenced him to an eighteen-year prison term for the first-degree armed robbery conviction,*fn2 and a concurrent ten-year prison term for the second-degree conspiracy conviction, both subject to an eighty-five percent period of parole ineligibility under NERA.
On appeal, defense counsel raises the following legal arguments for our consideration:
DEFENDANT WAS DEPRIVED OF A FAIR GRAND JURY HEARING AND HIS MOTION FOR DISMISSAL OF THE INDICTMENT SHOULD HAVE BEEN GRANTED FOR FAILURE TO PRESENT EXCULPATORY EVIDENCE AND INTRODUCTION OF DEFENDANT'S CRIMINAL HISTORY AT THE GRAND JURY HEARING.
A. The prosecutor wrongfully failed to present exculpatory evidence at the grand jury hearing.
B. Defendant was deprived of a fair grand jury hearing by reference on more than one occasion during testimony that he was on parole and had been arrested for another crime.
POINT II IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 3:18 AND MOTION FOR A NEW TRIAL PURSUANT TO RULE 3:20 SINCE THERE WAS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.
POINT III DEFENDANT'S SENTENCES OF EIGHTEEN (18) YEARS FOR ARMED ROBBERY AND TEN (10) YEARS FOR CONSPIRACY TO COMMIT ARMED ROBBERY WAS AN ABUSE OF DISCRETION.
POINT IV DEFENDANT'S SENTENCE WAS INVALID BASED ON THE DISPARITY IN RELATION TO THE CO-DEFENDANT'S SENTENCE.
POINT V THE CONVICTION FOR CONSPIRACY SHOULD HAVE MERGED WITH THE ARMED ROBBERY.*fn3
In defendant's pro se supplemental brief, he raises the following points:
DEFENDANT WAS DENIED DUE PROCESS (U.S.C.A. CONST. AMEND 14) WHEN DEFENDANT FILED A MOTION [FOR] LEAVE TO APPEAL TO THE APPELLATE DIVISION, AND DEFENDANT['S] MOTION WAS DENIED BY THE APPELLATE DIVISION. WITH THE APPELLATE DIVISION SETTING FORTH NO REASONINGS FOR ITS [FINDINGS].
DEFENDANT WAS DEPRIVED A FAIR TRIAL (U.S.C.A. CONST AMEND 6) BY TRIAL COURT['S] FAILURE TO INSTRUCT JURY ON PRIOR INCONSISTENT STATEMENT. AND FAILURE TO PROPERLY INSTRUCT THE JURY ON ACCOMPLICE LIABILITY.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
TRIAL COURT ERROR BY CROSS-[EXAMINING] THE WITNESSES AT DEFENDANT['S] TRIAL IN AN OVER SUGGESTIVE MANNER.
With the exception of point four of defense counsel's brief, we reject these arguments and affirm defendant's conviction. As to defendant's disparate sentence argument, we remand for the trial court to consider whether defendant's eighteen-year prison term is disparate from that of his co-defendant, who received a five-year prison term for a first-degree armed robbery conviction.
On October 5, 2005, defendant drove a white Honda, belonging to his girlfriend, Jacqueline Hayes, to Villegas's home. After picking up Villegas, defendant parked the car in a lot two blocks from South Pines Liquors, located in Sayerville. According to Villegas, defendant showed him a BB gun, which looked like a nine-millimeter pistol, and suggested that they rob the liquor store. Villegas described the gun as broken, with tape holding it together.
Villegas testified that defendant outlined a plan in which they would enter the store and as he walked toward the back, defendant would purchase something at the cash register. When the cash register was open, Villegas would hold the gun to the cashier and defendant would take the money from the cash register. Defendant could not carry the gun because the clerk in the store knew him as a frequent patron.
After telling Villegas of the plan, defendant drove to the liquor store, parked the car across the street, and he and Villegas entered the store. Villegas walked toward the back while defendant went to the cash register to purchase gum. When Villegas ran to the front of the store and pointed the gun at the cashier, defendant did not take the money from the cash register, but took the gum he had just purchased and left the store.
Villegas testified, "I was already there so I decided that I had to do the robbery myself since he left." He took the money from the cash register and asked the cashier for the keys to the lottery machine. When the cashier did not turn over the keys, Villegas had him lie on the floor in front of the cash register and took approximately $300 from his pockets. Villegas then left the store, having taken approximately $900. He got into the white Honda where defendant was waiting and defendant drove away. Villegas gave defendant $500 and he kept $400.
Video surveillance cameras at the store recorded the Honda arrive minutes before the robbery and captured the robbery from the time that defendant and Villegas entered the store until Villegas left. The cashier's statement to the police and the surveillance footage corresponded to Villegas's testimony regarding the events that took place inside the store.
The next day, the police issued a press release describing the individuals who had robbed the store and the time of the incident. The release did not mention the video. On October 7, 2005, Detective David Lasko received a phone call in response to the press release. The caller, who identified himself as Michael, questioned whether there was a video of the incident. Lasko obtained two cell phone numbers from the caller and informed Officer Russell Anderson, who returned the call. The man with whom Anderson spoke claimed to be friends with one of the individuals who had been in the store at the time of the robbery. He claimed, however, that his friend had nothing to do with the robbery. He repeatedly asked whether there was a video of the incident; Anderson did not answer his question. Anderson testified that the man stated, "I was only buying gum."
After Anderson learned that the phone numbers were registered to defendant and defendant's sister, he obtained a photograph of defendant and identified him as the individual on the video who purchased gum. Anderson and another detective went to Hayes's apartment, where they saw the white car that was shown in the surveillance video. Hayes told the detectives that on October 5, 2005, defendant had picked up her car. She permitted the police to search the car where they found the handle of a handgun, possibly from a BB gun, under the front passenger seat. The handle did not have tape on it.
Anderson subsequently interviewed defendant, who claimed that on October 5, 2005, he was driving with a friend named Edwin, who told him to stop at South Pines Liquors. Defendant claimed that he had no knowledge that Edwin planned to rob the store. Defendant subsequently told the police that the person who robbed the store was Edwin Villegas.
At the grand jury proceeding, Anderson testified that the cashier from the store stated that while Villegas came from the back of the store to the front, defendant "was just standing right in front and watching" and "eventually... left." Anderson also described how, on the surveillance video, which was not shown to the grand jury, Villegas moved the cashier from behind the register, had him lie on the ground, and searched his pockets.
Anderson testified that after he spoke to defendant on the phone, he contacted defendant's parole officer and learned that defendant had missed a meeting. When the parole officer contacted defendant, defendant asked him if he had heard about an armed robbery in Sayreville; he told the parole officer that he was present at the robbery but was only there buying gum. This information led Anderson to believe that he "had the right person," and he continued to investigate defendant in connection to the robbery.
Also during the grand jury proceeding, Anderson testified that upon taking the video to New Brunswick detectives in an attempt to identify the suspects, they all knew defendant, that he was on parole, and that he had recently been arrested in relation to a counterfeit money charge. The assistant prosecutor subsequently instructed the grand jury not to hold the counterfeit money charge against defendant. She explained that she asked Anderson about that charge because, if defendant had not yet been charged regarding the counterfeit money, she would have submitted that charge as one of the counts to the grand jury; the police found counterfeit money in the Honda.
The prosecutor explained to the grand jury how to consider Anderson's reference to defendant being on parole:
[T]here's just so much you can do in terms of being ambiguous and vague without having it being questioned later on. Like, well, who did he speak to? And who were these people? So, that's why [defendant] spoke to someone that is familiar. And I would submit that that's how you should look at it. Not as someone that's his parole officer, but someone that has more of a personal connection and more of a personal familiarity with [defendant].
Prior to trial, defendant filed a motion to dismiss the indictment. He claimed that it unduly prejudicial for the grand jury to hear testimony that he was on parole and had been arrested for another criminal offense. The court rejected that argument and ruled as follows:
[T]he information that [defendant] had given the parole officer was important information. It was important that the grand jury knew who [defendant] told that to happened to be someone that worked closely with [defendant] as his parole officer. There was a ton of evidence here about the robbery itself, how the lieutenant located the defendant and how [defendant] basically told the police who he was through his cell phone and through all the interaction he had, telling his parole officer, and then [defendant] told him about Villegas. Mr. Villegas implicates [defendant], and the grand jury heard all this evidence.
And I believe that [the prosecutor] did give an instruction to the grand jury, but the evidence is overwhelming, and there's a ton of evidence pointing to defendant's involvement and incriminating evidence.
There's a ton of evidence, a ton.
Regarding defendant's argument that the prosecutor should have shown the surveillance video to the grand jury, the court found:
The videotape was just a strengthening of the state's case. It's not exculpatory evidence at all. It shows [defendant] at the robbery scene with his co-defendant coming in together. Shows the car, his girlfriend's car. Shows him buying the gum. Getting that drawer open, so Villegas could come in, rob the guy, take the money, hit him in the head. And he's watching. He's on the video watching all this, and then he leaves in the car. Gets behind the driving wheel, drives Villegas away, and splits the money. So, there, that just strengthens the case, and there's no need that the grand jury see the videotape.
Consequently, the court denied defendant's motion to dismiss the indictment.
When Villegas testified at trial, the prosecutor questioned him about the terms of his plea agreement.
Q: [W]hat else do you have to do to get that seven [years in states prison] with 85 [percent with parole ineligibility]? If you don't know look at the plea form and maybe that will help you refresh your recollection?
A: I have to come in and testify.
Q: Testify how does it say there? I am, sorry, Mr. [Villegas]. I am so sorry... you have difficulty reading?
Q: Okay. You said you have to come in and testify, right?
Q: Are you telling the truth or you're lying today.
A: I'm lying.
Q: You're what, you're lying?
A: I'm telling the truth. I'm sorry. I'm telling the truth. I just got a little confused with the reading of it.
Q: Let's start again. Are you telling the truth today or are you lying?
A: I'm telling the truth.
The cashier's and Villegas's testimony regarding the events that occurred in the liquor store were consistent with the events depicted on the surveillance video, which was shown to the jury.
We begin our discussion with defendant's argument that the court erred by failing to dismiss the indictment because the prosecutor failed to show the grand jury the surveillance video. Whether to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of that discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Although a prosecutor has an obligation to present evidence in his possession to the grand jury that clearly negates a defendant's guilt, unless the exculpatory evidence squarely refutes an element of the crime in question, that evidence is not within the prosecutorial duty to disclose. State v. Hogan, 144 N.J. 216, 237 (1996).
We conclude, as did the trial court, that the video was not exculpatory evidence. The failure to present the video did not distort the facts. Defendant claims that the video shows that he did not participate in the robbery because it depicted Villegas holding the gun to the cashier, taking money from the register and the cashier, while defendant simply purchased gum and left the store. Defendant was, however, convicted on accomplice liability, which did not require him to physically take the money or hold the weapon. In addition, Anderson testified as to what the video showed. What is more, in light of the jury's convicting defendant of armed robbery and conspiracy to commit armed robbery, even if failing to show the video to the grand jury was error, it was harmless. State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986) (grand jury errors rendered harmless in event of guilty verdict in trial resulting from indictment), certif. denied, 108 N.J. 648 (1987).
Defendant's alternate claim for dismissal of the indictment is that the prosecutor committed misconduct by allowing the grand jury to hear that he was on parole and had been arrested for another crime.
In presenting a matter to a grand jury, prosecutors enjoy broad discretion and grand jury proceedings are presumptively valid. State v. Smith, 269 N.J. Super. 86, 92 (App. Div. 1993), certif. denied, 137 N.J. 164 (1994). Unless the grand jury's fair and impartial decision-making process has been affected by the prosecutor's conduct during the proceedings, courts will not interfere with the results. Ibid.
Here, the trial court found that the prosecutor cured the potential prejudice of Anderson's testimony about defendant's being on parole and being charged with another crime. The prosecutor instructed the grand jury not to hold the other pending criminal charges against defendant. The court found that Anderson's testimony that he learned from defendant's parole officer that defendant was present during a liquor store robbery was significant and important information.
Additionally, as the court observed, there existed other substantial incriminating evidence of defendant's involvement in the crime. The grand jury heard that defendant planned the robbery; he arrived at the liquor store with Villegas, entered the store, purchased gum, and he and Villegas drove away together in the same white Honda in which they had arrived, and in which police later found the handle of a BB gun. They split the money taken in the robbery. As did the trial court, we conclude that the challenged testimony did not have the capacity to substantially influence the grand jury's decision to indict. Thus, the court's refusal to dismiss the indictment was not an abuse of discretion.
Next, we address defendant's contention that the evidence did not support the verdict. He asserts that aside from Villegas's testimony, the evidence does not show that defendant planned or was in any way involved in the armed robbery. The judge rejected that argument, as do we. In ruling on defendant's motion for a new trial, the court opined that Villegas was a "100 percent credible [and] forthright witness about everything he testified to." The jury apparently reached the same conclusion. Having given due regard to the jury to pass upon the witnesses' credibility, it does not clearly and convincingly appear that the verdict was a manifest denial of justice. See R. 3:20-1; State v. Reyes, 50 N.J. 454, 458-59 (1967) (trial court must deny motion for new trial if, "viewing the State's evidence in its entirety," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt"). We agree with the trial court that the evidence supported the verdict and defendant's arguments to the contrary do not warrant additional discussion in a written opinion. R. 2:11-3(e)(2).
Defendant argues that the trial court abused its discretion in sentencing him to eighteen years in state prison with an eighty-five percent period of parole ineligibility for armed robbery. He asserts that the trial court did not properly apply the aggravating and mitigating factors, and abused its discretion by sentencing him to eighteen years, while Villegas was sentenced to five years for the same crime.
When reviewing a sentencing decision, this court must: determine, first, whether the correct sentencing guidelines... have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.
[State v. Roth, 95 N.J. 334, 365-66 (1984).]
We "modify a sentence [only] when the trial court's determination was clearly mistaken." State v. Evers, 175 N.J. 355, 386 (2003) (internal quotations omitted). Appellate intervention in a sentencing decision is appropriate only where the sentence shocks the conscience. Roth, supra, 95 N.J. at 365. Here, putting aside the disparate sentencing argument, the court was not clearly mistaken, nor did the sentence shock the conscience.
N.J.S.A. 2C:43-6a provides a ten-to twenty-year prison term for persons convicted of first degree armed robbery. Defendant's sentence was within the appropriate range. At sentencing, the court properly considered aggravating factors three, six and nine. Though the court did not provide a detailed explanation of the aggravating and mitigating factors, it provided basic reasoning supported by the record. See State v. Dunbar, 108 N.J. 80, 96 (1987) (brief recital of aggravating and mitigating factors, the weight the court assigns them, and the reasoning that led to the sentencing terms is sufficient explanation of the sentence).
With regard to aggravating factor three, defendant had been previously convicted of armed robbery, for which he served ten years in state prison. Not long after he was released from prison for that prior conviction, he committed the current offenses. Thus, the court was well-reasoned in finding a risk that defendant would commit another crime.
The court also considered the extent of defendant's prior criminal record, along with the seriousness of the offenses, including a 1994 armed robbery conviction. The court properly considered the seriousness of that offense in determining the sentence here.
With respect to the ninth factor, the need for deterrence, based on defendant's prior record and the seriousness and violence inherent in both that offense and the current offense, the record supports the court's decision to impose aggravating factor nine. Both specific and general deterrence were implicated.
Defendant's argument that the court did not consider mitigating factors is without merit. It considered and dismissed mitigating factor eleven, finding that defendant "does have a very nice girlfriend and a child, and it appears that the girlfriend is supporting that child, not Mr. Marlin." The record supports this finding, as defendant's Uniform Defendant Intake form does not indicate that he pays child support or is the primary caretaker of a child.
Defendant's contention that mitigating factors one and two should apply because his conduct neither caused nor threatened serious harm, and he did not contemplate that his conduct would cause or threaten serious harm, is without merit. Defendant planned and committed an armed robbery. The robbery involved a BB gun, which defendant intended to be used to scare the store cashier. A BB gun can inflict serious injury; the cashier could have attempted to defend himself; he could have suffered a heart attack. Defendant contemplated causing the harm proscribed by the armed robbery statute, N.J.S.A. 2C:15-1.
Because defendant's sentence was within the statutory guidelines and the aggravating and mitigating factors that the court considered in sentencing were supported by the record, the sentence was not clearly mistaken, nor does it shock the conscience.
Defendant's final argument with regard to his sentence is that it is disparate with his co-defendant's sentence. Villegas pleaded guilty to first-degree armed robbery, and the court sentenced him as a second-degree offender, imposing a five-year prison term. Defendant, also convicted of first-degree armed robbery, received an eighteen-year prison term. Both defendant and co-defendant were subject to eighty-five percent periods of parole ineligibility under NERA. Defendant argues that Villegas should have received the greater sentence because he actually committed the crime; defendant, on the other hand, left the store before Villegas pointed the gun at the cashier, robbed the cash register, made the cashier lie on the ground, and removed money from his pockets.
Though a defendant's sentence is not necessarily erroneous simply because it is greater or more severe than that of a co-defendant, it is a factor for this court to consider on appeal. State v. Hicks, 54 N.J. 390, 391 (1969). The question is not whether a defendant's sentence was greater than that of his co-defendant, but "whether the disparity is justifiable or unjustifiable." State v. Roach, 146 N.J. 208, 232-33 (1996), cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136, L.Ed. 2d 424 (1996); Hicks, supra, 54 N.J. at 392. When reviewing whether a disparity exists between a defendant's and a co-defendant's sentence,
[t]he trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. [Roach, supra, 146 N.J. at 233.]
Here, the same judge imposed sentences on defendant and Villegas. He imposed the sentence on Villegas soon after defendant's trial and was aware of that sentence at the time he imposed defendant's sentence. Yet, the judge failed to mention Villegas's sentence when imposing the sentence upon defendant. The court also failed to compare the prior criminal records of both defendant and co-defendant. The court did not consider the testimony that showed that defendant left the liquor store and Villegas unilaterally determined to complete the robbery on his own. Although Villegas's cooperation with law enforcement authorities is a factor to be considered, see State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999), an examination of all of these factors was necessary to determine whether the sentence imposed upon defendant was justified. Put another way, the trial court did not comply with the Court's instruction in Roach to consider the basis of the sentence imposed on co-defendant, and the length, terms, and conditions of both sentences.
In the absence of that analysis, we are constrained to remand for further consideration of defendant's sentence. The trial court must determine if the disparity in defendant's and Villegas's sentences are justifiable under the Roach analysis. Consequently, although we have concluded that defendant's sentence conforms to the appropriate sentencing guidelines and does not otherwise reflect an abuse of discretion, we remand for further consideration of the sentence.
In his pro se brief, defendant raises a number of issues, including a claim that because this court denied his motion for leave to appeal, he was denied due process; that the trial court failed to properly instruct the jury with the inconsistent statement charge and the jury accomplice liability charge; that the trial judge improperly questioned witnesses during the trial; and defendant was denied effective assistance of counsel. These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant may, however, raise his ineffective assistance of counsel claim in a post-conviction relief proceeding.
In sum, we affirm defendant's convictions. We remand for the trial court to merge the conspiracy conviction into the armed robbery conviction and to reconsider defendant's sentence as it compares to co-defendant's sentence. If the court determines not to change defendant's eighteen-year sentence, the court must nevertheless amend defendant's judgment of conviction to reflect the eighteen-year term as well as the merger of defendant's convictions.
Affirmed in part, reversed in part and remanded.