On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1295.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Parrillo and Lihotz.
Tried jointly by a jury, defendants Joshua Gaudette and Mario Vega were found guilty of armed robbery, N.J.S.A. 2C:15-1; armed burglary, N.J.S.A. 2C:18-2; conspiracy to commit these crimes, N.J.S.A. 2C:5-2; criminal restraint, N.J.S.A. 2C:13-2(a); possession of a handgun without obtaining a permit to carry a weapon, N.J.S.A. 2C:39-5(b); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a weapon by certain persons, N.J.S.A. 2C:39-7(b).*fn1 Each defendant was sentenced to an aggregate thirty-year prison term, subject to a twenty-two year parole bar. On their appeals, which we have consolidated for purposes of argument, Vega alone contends that the trials should have been severed,*fn2 evidence should have been suppressed, testimony regarding Vega's obstruction-of- justice arrest prejudiced the jury, and the court erred in denying his motion for judgment of acquittal. Gaudette contends that "new evidence" of his alleged attempt to hire someone to murder a victim requires a new trial, and testimony on what led police to arrest Gaudette amounted to hearsay that requires a new trial. And both defendants argue that the prosecutor made a number of comments during summation that require a new trial and that the court erred in its jury charge. Both defendants also contend that their sentences were excessive. Based on our review of the record and applicable law, we affirm both judgments in all respects, save for the sentences, which we remand for findings as to the consecutive nature thereof, and, as to Vega, for clarification as to whether his sentence includes an extended term and whether the offenses of conspiracy to commit armed robbery and possession of a firearm with an unlawful purpose merge with the first-degree armed robbery and second-degree certain-persons-not-to-have-a-weapon offenses, respectively.
The underlying incident involved a home invasion perpetrated by two masked intruders on the evening of February 12, 2004. According to the State's proofs, at the time, Robert Palagonia was at home with his two daughters, Jessica, seventeen years old, and eleven-year old Nicolette. Robert had fallen asleep on the couch in the living room, while upstairs Jessica watched television in her bedroom, and Nicolette slept in hers. At about 11:00 p.m., Robert awoke to find a man standing over him, holding a gun and ordering "Don't move, mother fucker." When the intruder pushed the gun towards Robert's face, Robert grabbed the gun, and they began to struggle, wrestling "over the couches [and], tables," and "wound up in the corner fighting." Robert lost grip of the gun, and the assailant hit Robert in the head about seven times.
Meanwhile, the other intruder had gone upstairs and knocked on Jessica's bedroom door. Believing it was her dad, she got out of bed and opened the door, only to be confronted by a man wearing a dark mask, who grabbed her by the shoulders, threw her into the bathroom, and shut the door. Inside the bathroom the man told Jessica to sit down, but she resisted, and when she screamed for help, he threatened to kill her and forced her to the floor. He then tried to gag her with a t-shirt, but was unsuccessful, so he took a sock from a nearby hamper and tied her hands behind her. The commotion triggered an asthma attack, which inhibited Jessica's ability to breathe comfortably, and, therefore, she stopped struggling.
Meanwhile, Nicolette had awoken when she heard her dad yelling her name and ran towards the stairs. As she passed the bathroom, she heard Jessica's cries for "help." Nicolette ran down the steps and saw a masked man hitting her dad in the back of the head. At the same time, the assailant demanded "Where's the money?" as he pointed the gun at Robert and pulled the trigger. However, no bullet discharged. Robert yelled for Nicolette to get help, and she ran across the street to Tracy Matarazzo's house. The man turned to try and stop Nicolette, but Robert grabbed him, only to be pulled across the floor and hit in the head so hard that he nearly passed out. When the assailant turned to run out the door, Robert managed to grab hold of him, but only briefly, as the man ultimately escaped through the front door.
Hearing no response when he called Jessica's name, Robert walked up the stairs where he heard a "mumble" coming from the bathroom. Robert opened the door and turned on the light, at which time another masked man ran towards him, pushed him aside, and rushed down the steps. Jessica, who was then standing in the corner of the bathroom by the sink, looked "alright," so Robert turned to run after the second intruder. He chased the man outside, yelling for Nicolette and Matarazzo, who were crossing the street, to call the police, which, unbeknownst to Robert, Jessica was in the process of doing. He then jumped into the truck and followed the man for a few blocks until he lost sight of him.
When he returned home, Robert stood outside with Nicolette, Jessica and Matarazzo awaiting the police. His head was bleeding, his face was swollen and his shirt was "soaked in blood." Detective Sergeant James Clayton and Sergeant Trocchio of the Neptune City Police Department arrived around 11:00 p.m. and observed the furniture in the living room was out of order, and blood was on the floor. Clayton saw "numerous impressions" of foot prints on the floor. Using his own foot for comparison, Clayton estimated that one of the impressions, which was on a bloody piece of paper, was of a shoe sized nine or ten inches.*fn3
After calling for medical assistance for Robert and securing the house, Clayton interviewed Robert and Jessica, who described the two intruders. Robert characterized his attacker (the first man) as between five feet six inches and five feet eight inches tall with "a stocky build," and Puerto Rican, who spoke with a slight Spanish accent. He wore a black ski mask and black or dark clothing. Although Robert did not describe Jessica's attacker (the second man), his daughter did. She said that he was a "black male" about six feet three inches tall with shoulders that were not as wide as Clayton's. Jessica described his jacket as being "thin, black, shiny nylon material with square shapes sewn in it, sort of like a down coat but not as thick." The only facial feature she saw, however, were his eyes, which she described as having a large white area and dark bushy eyebrows. Clayton, recalling he knew a person who fit Jessica's description, turned to Detective Quagliato and said "[i]t sounds like Joshua Gaudette." Clayton had known Gaudette for some time and that his distinguishing characteristic was his bushy eyebrows.
Two days later, on February 14, 2004, Clayton again met with Robert and Jessica. Jessica's description of her attacker was consistent with her first, but, this time, Robert recalled knowing a man named "Josh" whose eyes matched Jessica's description. Robert had met "Josh," whom he identified in court as Gaudette, through Mike Helgeland, a former employee of Robert's construction company and a son of Robert's friends, the Scanapicos. According to Robert, he paid his employees every Friday with money that he kept in a safe in an upstairs bedroom of his house, and Helgeland had been in the house five or six times, once apparently with Josh.
Helgeland also apparently led Clayton to Russell Palmeri, another former employee of Robert's business, who reported that he had seen Gaudette at about 11:00 p.m. on February 12, 2004. Gaudette appeared sweaty at that time and was wearing a dark-colored jumpsuit and no jacket. Palmeri agreed to give him a ride to Bradley Beach, and, along the way, Gaudette said he had been in a fight and punched someone in the face.
Palmeri, in turn, led Clayton to Alicia Catananzi and Andrea Milano, whom Clayton interviewed on February 17, 2004 at Milano's apartment in Bradley Beach. Catananzi reported that, at about 12:45 a.m. on February 13, 2004, she saw Gaudette, who asked her for a ride to Long Branch, and he was wearing "a black jacket or hoody, jeans and sneakers." During the interview, Clayton asked Milano about Gaudette's girlfriend, which prompted Milano to call Monica Figueroa, who lived in Keansburg. As a result of that call, Clayton requested the Keansburg Police Department to go to Figueroa's house "[t]o pick up Mr. Gaudette on the warrant that we had issued for him."
Detective Wayne Davis and two other Keansburg Police officers were dispatched to Figueroa's house. After knocking on the door and identifying himself, Davis heard voices inside, but no one answered the door. He continued knocking, and, about twenty minutes later, Figueroa answered. Davis asked her if Josh Gaudette was there, and she said she was the only one home. Disbelieving her, Davis asked more questions while the two other officers stepped inside the house. Soon, a man, later identified as Mario Vega, stepped out of the bathroom. Davis again asked Figueroa if anyone else was there, and she said no. Then another man, later identified as Michael Figueroa, walked out of another room. At that point, Davis went inside a bedroom, where he saw Gaudette lying on a bed with his hands behind his head.
Gaudette, Vega and Michael Figueroa were all arrested for obstruction of justice*fn4 and transported to Keansburg Police Department headquarters where Gaudette was placed in a cell block and the other two in a holding cell. When Clayton arrived later that day to arrest Gaudette, he first spoke to Vega, whom he believed matched Robert's description of his attacker. In fact, Vega spoke with a slight Hispanic accent and wore boots that not only matched the footprints at the crime scene, but appeared to have small spots of dried blood on them, as well. When Clayton asked for Vega's boots because he suspected Vega burglarized Palagonia's house, Vega kicked them off and said, "You want my boots, take them." Clayton retrieved them.
Forensic analysis later determined that one stain contained Robert's DNA.
That night, Nicole Scalzo, Gaudette's girlfriend at the time, contacted the Neptune City Police Department and reported that, on February 12, 2004, Gaudette was home with her until about 9:00 p.m. He left after telling her that he was going out with his aunt, because his grandmother was sick. At that time, he was wearing jeans, a white t-shirt and a jacket that was "black, shiny, nylon type with diamond stitching on it."
He returned home at about 12:40 a.m. on February 13, 2004. Although half asleep, Scalzo did not believe that he had on his jacket. On the morning of February 17, 2004, Gaudette dropped Scalzo off at work and took her car. At about 6:00 p.m. she received a call from a woman named Monica, who said that Scalzo's car was in Keansburg. Scalzo picked up her car after work and contacted Clayton, to whom she gave a statement as well as a jacket that was in the back of her car. Jessica and Robert identified the jacket as looking like the one that Jessica's attacker had worn during the burglary.
The next day, February 18, 2004, while being transported from Keansburg to Neptune Police Headquarters, Gaudette inquired of Neptune Police Detective Matthew Quagliato: "Hey, did you guys get the other guy yet?" Upon arrival, Gaudette was advised of his rights, after which he denied committing the burglary and claimed that five people, including his girlfriend, her father and two cousins, would say that he was home all night on February 12, 2004.*fn5
Over one year later, on May 6, 2005, Robert and Jessica gave their first written statement to police. Robert's description of his assailant was similar to the one he gave Clayton on the night of the incident, namely that the man was Hispanic, had tan skin, was "bigger than me [Robert], about 5'8", stocky[, and h]e was wearing a black shirt, black pants, [and a] jacket." When showed a picture, presumably of Vega, Robert could not identify him as his assailant.
Jessica's description of her attacker was also similar to her earlier depiction. In her statement, she related: "He was wearing a ski mask with the eyes cut out. Black jacket . . . like, a flight jacket, thin flight jacket and dark jeans." The jacket had "little squares, like, stitched in." She identified the jacket that Scalzo gave the police as looking like the one that her assailant wore. She described him as tall, about siX feet, with a "nice" build and "wide shoulders," weighing about 220 pounds. He had "big eyes," and "all I [Jessica] saw when I [she] looked at him was the whites of his eyes. He had long eyelashes and, like, I remember his eyebrows, thick eyebrows."
At trial, neither Robert nor Jessica was able to identify Gaudette and Vega as the perpetrators given the fact that the intruders wore masks. Robert's trial description of the assailants differed slightly from the description he gave Clayton on the night of the attack. Robert testified that his attacker was between five feet seven to ten inches tall with brown eyes, although he had never before given a description of the man's eye color. But consistent with what he had told Clayton, Robert testified that the man wore a black jacket, pants and ski mask. Robert also testified that Jessica's assailant, whom he had never before described, was tall and had big eyes and bushy eyebrows. He wore white sneakers, dark pants, a ski mask and a black jacket that had "square boxes over it."
Nicolette also testified at trial. She had not been interviewed on the night of the incident because of her age and the fact that she was frightened. The description of what she observed during the home invasion was consistent with her father's and sister's account. As for the assailants, she recalled only that they both wore dark clothes and one was tall while the other, stocky.
For the first time, on appeal, Vega contends that the trial court should have ordered separate trials because (1) Gaudette's out-of-court statement to the police asking "Hey, did you guys get the other guy yet?" inculpated Gaudette and another person, and (2) Vega's and Gaudette's defenses were antagonistic and mutually exclusive. We disagree.
Rule 3:15-2(b) authorizes a court, upon motion by either party, to order separate trials when "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation." A court considers the motion in light of the "general preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992).
Here, Vega never filed a motion to sever. Thus, we review his belated claim under the plain error standard, Rule 2:10-2, that is, whether the court's failure to sua sponte order separate trials is error that was "clearly capable of producing an unjust result." Ibid. We discern no error, much less plain error, in having tried defendants jointly.
Simply stated, Gaudette's out-of-court statement did not imply that he and Vega committed the burglary, especially given the fact that Gaudette could have learned from newspaper reporting or police questioning that the incident involved two suspects. Moreover, Vega's and Gaudette's defenses were not antagonistic or mutually exclusive. During summation, both defense attorneys identically argued mistaken identity and shoddy police work. Thus, Vega's challenge is baseless, especially considering the evidence directly implicated him, as the blood on his boot tested positive for Robert's DNA.
Vega argues that the blood found on his boots should have been suppressed as the fruit of an illegal search and arrest. He did not raise this argument below, nor did he file the requisite motion to suppress the evidence, and, therefore, he is precluded from raising the issue on direct appeal. R. 3:5-7(f).
Rule 3:5-7(f) provides: "If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained."
Thus, while he may claim in a petition for post-conviction relief that his trial counsel was ineffective in failing to file a suppression motion, Vega may not now challenge the admission of evidence of his boot, and the blood thereon, on direct appeal. See State v. Johnson, 365 N.J. Super. 27, 33-34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).
In any event, Vega's challenge lacks substantive merit. Defendant offers no facts to support a finding that his turning the boots over to Clayton was not done knowingly and voluntarily. And nothing suggests that his precedent arrest was unlawful.
Gaudette claims reversible error in the State's failure to provide him "discovery" about his alleged attempt to have the victim/witness (Robert Palagonia) murdered, as that information was supposedly relevant to witness bias. His motion for a new trial on this ground was denied, and we concur in that determination.
By way of background, on the second day of trial, January 24, 2006, during cross-examination, Gaudette's counsel asked Robert if he had spoken to anyone about the case, at which time the witness turned to the judge and said he did not know if he could answer the question. Counsel was instructed to move on to the next question, and the matter was addressed during the next break, at which time the prosecutor reported that "we received information that Joshua Gaudette attempted to contract to have Mr. Palagonia murdered," and someone from the Prosecutor's Office and/or the police department conveyed that to Robert. Having heard this for the first time, counsel requested the opportunity to question Robert, outside the presence of the jury, on what he was told and who told him, and then to question the people who conveyed the information to Robert. The request was denied at first, as was counsel's motion for a mistrial. The next day, however, the court held a N.J.R.E. 104 hearing, at which Robert testified.
Robert explained that around Friday of the previous week, he was contacted by phone and asked to go to the Neptune City Police Station, where Clayton and another individual from the Prosecutor's Office told him that "they caught some guy" and that "Josh" had ordered a contract for Robert's murder. When asked by Gaudette's counsel on cross-examination whether that information made him "feel a need to testify differently from how you've already given statements to police officers before," Robert answered: "No." Counsel also inquired: "Do you feel like you now have to get Josh," to which Robert replied: "No." But when counsel asked to further inquire into when and how the State learned about the alleged contract, the court declined the request, reasoning the matter immaterial.
At defendant's motion for a new trial predicated on this very issue, framed as a "discovery" violation, the prosecutor offered additional information. She said that, after Robert was initially scheduled to testify on January 18 and 19, but before his actual testimony, the State received information that Gaudette had hired someone to murder Robert. Having an obligation, the prosecutor conveyed that information to Robert the same day she learned of it. The prosecutor also advised the court. In denying defendant's motion for a new trial, the judge reasoned that evidence of the alleged contract would have irreparably prejudiced the jury, as would information that Gaudette was in custody, and that he was "absolutely convinced" that the jury rendered an appropriate verdict. We agree.
The information about the alleged murder "contract" was neither exculpatory, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197 10 L.Ed. 2d 215, 219 (1963), nor relevant to any fact in issue, N.J.R.E. 401, much less material to guilt or punishment. Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed. 2d at 219. On the other hand, such evidence was highly prejudicial to Gaudette and its admission likely would have adversely affected the jury's ability to render a fair and impartial decision. Thus, further inquiry into the matter was properly precluded.
As for the need to ascertain witness bias or whether the State attempted to taint a key witness, suffice it to say, defendant offers no proof whatsoever of either. Robert specifically denied that knowledge of the alleged contract influenced his testimony in any way. Indeed, Robert never identified Gaudette either in- or out-of-court. His descriptions of co-defendant Vega on the night of the incident, in his written statement one year later and in his trial testimony, were essentially similar in all significant respects. And, although he briefly described Gaudette for the first time at trial, that depiction did not differ from Jessica's. In any event, Robert was thoroughly cross-examined on the matter. In sum, we find no error in the denial of the motions for mistrial and a new trial based on the State's so-called "discovery" violation.
Gaudette contends for the first time, on appeal, that Clayton's and Davis' testimony on what led to Gaudette's arrest amounted to hearsay that implicitly informed the jury that police had superior knowledge of defendant's guilt. Specifically, Clayton testified that, while interviewing Catananzi and Milano, he asked Milano if she knew where Gaudette's girlfriend lived, and she made a phone call to Monica Figueroa. As a result of that phone call, Clayton contacted the Keansburg Police Department and asked them to go to Figueroa's house at 96 Highland Boulevard. Davis testified that, on February 17, 2006, he received information from Dispatch that a "suspect" who had been involved in a "home invasion," and who "they [had] identified as Mr. Gaudette, had made a phone call from 96 Highland Boulevard" in Keansburg. We find no plain error in the admission of this testimony.
In State v. Bankston, 63 N.J. 263, 271 (1973), our Court held that "[w]hen the logical implication to be drawn from the [police] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." To avoid hearsay, but to rebut a suggestion of arbitrary police action, police may use the phrase "based on information received" to explain their actions, but only if doing so does not imply that the defendant has been implicated in the crime by an unknown person. State v. Branch, 182 N.J. 338, 352 (2005).
Here, Clayton testified about Milano's call to Figueroa, and Davis testified about the dispatch call reporting that Gaudette had made a phone call from Figueroa's house, to explain how the police came to locate Gaudette. Their purpose was not to imply they had superior knowledge, outside the record, that incriminated defendant. In any event, the likely source of the information from Dispatch, i.e., Clayton, testified and was cross-examined at defendant's trial, thereby obviating Bankston's Confrontation Clause concern. See U.S. Const. amend, VI; N.J. Const. art. 1, § 10; State v. Kemp, 195 N.J. 136, 152-56 (2008). In this regard, with the exception of Andrea Milano, everyone whom Clayton interviewed -- Robert and Jessica Palagonia, Russell Palmeri, Alicia Catananzi and Tracy Matarazzo -- testified at trial and were subject to cross-examination. As for Milano, Clayton simply referred to her placing a phone call to Monica Figueroa, in his presence, and we perceive no error in such reference, especially since Gaudette's girlfriend, Scalzo, testified at trial. Moreover, Davis, who testified about the pre-arrest dispatch call, obviously obtained his information from Detective Clayton, who, as noted, testified and was cross-examined. Therefore, even if Davis' testimony about the dispatch call implicated concerns interdicted by Bankston, the totality of the circumstances presented leads to the conclusion that the admission of the belatedly challenged testimony was harmless. State v. Macon, 57 N.J. 325, 336 (1971).
Vega contends, again for the first time on appeal, that he was prejudiced by the jury's hearing that the Keansburg Police arrested him at Figueroa's house on an obstruction-of-justice charge. The arrest, he says, allowed the jury to infer guilt here. We disagree.
In the first place, the jury did not learn of the obstruction of justice charge via the State's questioning. The prosecutor only asked Davis, the arresting officer, whether Vega was arrested and transported to the Keansburg Police Department. It was Vega's attorney who on cross-examination asked Davis about the arrest. Vega's attorney specifically inquired: "And you brought him in for obstructing administration of justice?" Davis agreed, then defense counsel asked if the basis for the charge was that Vega did not answer Figueroa's door while Davis knocked for roughly twenty minutes. Davis said that was also correct. Shortly after that, the court expressly instructed the jury that the obstruction-of-justice charge "really doesn't have anything to do with this case" and could not be used as a basis to infer guilt.
Clearly, evidence of Vega's arrest was not offered to prove criminal disposition, but simply to explain how Clayton obtained Vega's boots. And defense counsel's additional inquiry into the specifics of the charge for which Vega had been arrested is certainly understandable, given the prospect of jury speculation over a far more serious offense. In any event, whatever harm may have accrued by virtue of this reference was mitigated, if not entirely eliminated, by the ...