February 25, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DJAVON HOLLAND, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 05-06-00810.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Lisa and Alvarez.
Defendant, Djavon Holland, was found guilty by a jury of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one), and second-degree robbery, N.J.S.A. 2C:15-1 (count two). Following appropriate merger of the conspiracy offense into the substantive crime, defendant was sentenced to eight years of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and ordered to pay $425 in restitution to the victim as well as fines and penalties. Defendant appeals, and we affirm.
At trial, Edward Gold testified that at approximately 5:30 a.m. on January 13, 2005, he and his wife stopped at the Molly Pitcher Service Area on the New Jersey Turnpike while traveling south to Florida. Gold went inside the building to use the restroom, which was empty when he entered. Upon exiting the stall, he noticed two men watching him. One was tall and positioned by the exit, and the other was noticeably shorter and standing much closer to Gold. Gold washed his hands at the sink and moved toward the doorway, when the man behind him grabbed him by the neck. He was punched in the head and ribs repeatedly and felt hands going into his pockets.
Ariosto Pauta, a maintenance worker, entered the restroom because he heard shouting and yelled at the men to stop. He described the men as tall, ages twenty to twenty-five, and wearing hoods over their heads and handkerchiefs over their faces. He saw one of them pull a wallet out of Gold's pocket. Pauta reached for his broomstick and, after helping Gold up from the floor, they chased the men as they ran towards the parking lot. Hearing the outcry, a truck driver, Ron Bodo, ran out of the building with Gold towards the parking area. One of the assailants was already in a car, and the other was getting in, when Gold and Bodo reached them.
Bodo read the license plate number to Gold as the car pulled away, and they went to a pay phone to call 911. Gold stood next to Bodo while he made the call. He recited the license plate number to Bodo, who in turn repeated it to the 911 operator. The call, which lasted approximately four minutes, was played to the jury in its entirety.
Gold's injuries included aches and pains in his ribs, a bruised forehead, a swollen right index finger, and a punctured gum. His sons, both of whom were physicians, told him that he probably had a cracked rib. Gold, who was seventy-seven at the time, also experienced nightmares for a few months following the incident. His left pants pocket was torn, and his wallet was gone. Neither the credit cards nor the approximately $300 in cash contained in his wallet, nor the wallet itself, were ever recovered.
Jason S. Burns, one of the responding State troopers, testified that he put out a "be on the lookout" (BOLO) message for the get-away car, a 1992 Toyota Camry, after interviewing Gold and Bodo at the service area. At around 7:20 a.m., while still at the scene, Burns received a phone call from Bodo. As a result of the conversation,*fn1 Burns asked the Moorestown station to check if any of their troopers had stopped the Camry.
Shawn Kulik, another State trooper on duty that morning, testified that shortly after 7:00 a.m., he observed a maroon 1993 Toyota Camry heading southbound on the Turnpike, failing to maintain its lane. At the time, Kulik was not aware of the BOLO or the robbery.
When he stopped the vehicle due to the erratic driving, co-defendant Shaundell P. Martin was driving. He told Kulik that he did not have a driver's license with him, but did have one issued in Alabama. The front seat passenger, co-defendant John W. Sumner, Jr., was the Camry's registered owner. Sumner was wearing a hooded sweatshirt and had not been wearing his seatbelt. The front seat occupants were ordered out of the car. The entire stop, which was videotaped, lasted approximately forty-five minutes. The videotape was played to the jury in its entirety.
Kulik explained that he was able to get a good look at the passenger sitting in the rear seat of the vehicle, the only other occupant besides Sumner and Martin, and described him in detail. In court, Kulik identified defendant as the rear seat passenger. He issued a ticket to Martin for driving without a license, and Sumner drove the car away after the stop. Kulik did not learn until approximately an hour later that the Camry was wanted in connection with a robbery.
Detective Kenneth Koenig testified that on the morning of the robbery, he attempted to match the plate number that Bodo had provided, but was unsuccessful. He then conducted a "computer-aided dispatch search" and discovered that Kulik had just stopped and released the wanted vehicle.
Koenig watched the tape of the motor vehicle stop with Kulik, who identified the occupants who were removed from the Camry as co-defendants Sumner and Martin. Koenig obtained arrest warrants for them on February 8, 2005. Sumner was picked up that day in Maryland; Martin was picked up two days later in New York City. After Koenig's separate interviews with the co-defendants, he obtained a warrant for defendant's arrest.
Both co-defendants testified for the State. Sumner identified defendant in court as the person with him on the morning of the robbery. He said that the three men stopped at the service area to get gas, and that although defendant had told him that he needed money, he did not say anything about a robbery. When he and defendant went into the restroom, they saw Gold exit a stall and begin washing his hands. Defendant grabbed Gold from behind and, as the victim struggled, patted down his pockets. Sumner claimed that he grabbed Gold's hands so that the victim would not "do anything to get himself injured."
When Sumner and defendant fled, Martin was waiting behind the wheel. Sumner got into the front passenger seat, and defendant got into the rear. Martin drove off "pretty fast" and headed south on the Turnpike. Sumner also testified that he did not even know that defendant took Gold's wallet until they stopped later to repair a flat tire. No one talked about the robbery, but at some point, defendant threw "a credit card or something" out of the window of the moving vehicle.
Shortly after they left the Molly Pitcher Service Area, they stopped at another service area to eat and, in the process of parking, slashed a tire on a curb. Sumner said that defendant did not give him money from the robbery, but did pay to replace the tire.
In his statement to police, Sumner referred to defendant as "Dante," which Sumner explained is another named used by defendant in addition to "Kevin." He said that he and defendant often used fake names when "dealing with a girl."
In his statement, Sumner told police that defendant talked about committing a robbery before they reached the Molly Pitcher Service Area. At trial, however, he no longer remembered defendant saying anything about a robbery prior to their arrival at the rest stop.
In his testimony, Sumner acknowledged having pled guilty to an amended charge of third-degree theft conditioned upon, among other things, his truthful testimony at his co-defendants' trials. Although the State recommended four years, Sumner received a 364-day county jail sentence, of which he served four months. He was placed on probation, but that was suspended.
Martin initially did not remember much about the morning of the robbery, other than stopping at the Molly Pitcher Service Area to get something to eat. After his recollection was refreshed with his prior statement to police, he testified that when Sumner and defendant came out of the building, they got into the car and told him to drive away quickly. He also stated that Sumner and defendant reported that they "fought on somebody" in the bathroom. Martin said that he never saw a wallet and never knew defendant by any nickname. He entered a guilty plea to conspiracy to commit robbery and was sentenced to five years of probation.
All but one of defendant's arguments on appeal address issues not raised below. Therefore, with one exception, his claims will be reviewed under the familiar plain error standard.
R. 2:10-2. In other words, the error will warrant reversal only if it was "clearly capable of producing an unjust result" Ibid. The possibility of an unjust result cannot be remote. It must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant's brief raised the following points:
THE TRIAL COURT ERRED BY PERMITTING THE JURY TO CONSIDER TESTIMONIAL HEARSAY, THEREBY DEPRIVING THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING THE JURY TO CONSIDER EVIDENCE THAT DEFENDANT USED AN ALIAS THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT THE EXISTENCE AND EXECUTION OF AN ARREST WARRANT FOR DJAVON HOLLAND WITHOUT PROVIDING THE JURY WITH A CURATIVE INSTRUCTION (NOT RAISED BELOW)
IMPROPER COMMENTS MADE BY THE PROSECUTOR DURING SUMMATIONS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPROPERLY FINDING AGGRAVATING FACTORS AND FAILING TO CONSIDER THE APPLICABLE MITIGATING FACTOR (NOT RAISED BELOW)
On appeal, defendant asserts for the first time that Burns' testimony about the conversation in which Bodo reported to him the license plate number and a description of the Camry was inadmissible hearsay. Defendant contends that the testimony violated his rights under the state and federal confrontation clauses and warrants a new trial. The State counters that the testimony was not hearsay and even if it was, the admission was harmless under the plain error rule.
Hearsay is "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is generally inadmissible unless it falls within a recognized exception. N.J.R.E. 802; State v. Branch, 182 N.J. 338, 357 (2005). When a statement is not hearsay, the Confrontation Clause does not bar its admission. Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed. 2d 177, 197 n.9 (2004). Only if the statement is hearsay, and only if it meets an exception making it admissible, does it become necessary to decide whether the statement is "testimonial" and thereby implicates the confrontation clause. See id. at 61-62, 124 S.Ct. at 1370-71, 158 L.Ed. 2d at 198-99; State ex rel. J.A., 195 N.J. 324, 353 (2008) (Rivera-Soto, J., dissenting).
We concur with the State that Burns' testimony was not hearsay. Burns testified merely that Bodo described the vehicle, as a result of which he put out a second BOLO. He did not recount any of the details that were conveyed to him, such as the vehicle's color. The State offered the testimony only to show that Bodo's statements were made, and that the listener, Burns, took certain action as a result. See Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996). Because the testimony was not hearsay, its admission was not error. Accordingly, the Crawford issue need not be reached.
We next address defendant's challenge, raised for the first time on appeal, to the admission of the testimony regarding the use of nicknames by defendant. Generally, the fact that a criminal defendant uses an alias, unless relevant for some legitimate, unrelated purpose, is inadmissible because it suggests that defendant is part of the "criminal class," thereby prejudicing his right to a fair trial. State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988). An alias is distinguishable, however, from a nickname. The latter can be proffered in order to identify a defendant so long as the name is not pejorative. Compare State v. King, 372 N.J. Super. 227, 241 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005) (use of the name "Brooklyn" not prejudicial), with State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998) (use of the names "Marijuana" or "Trouble" would be prejudicial). Furthermore, "the admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Salaam, supra, 225 N.J. Super. at 73.
In this case, as in Paduani, "[t]he testimony was clearly relevant because [the] defendant was identified to the police by use of a nickname." Paduani, supra, 307 N.J. Super. at 147. Moreover, it was defendant's trial counsel who raised the issue of whether defendant's name appeared in Sumner's statement. Koenig testified on direct that after interviewing Sumner and Martin, police obtained an arrest warrant for defendant. On cross-examination, defendant's trial counsel asked the following question:
Q: "[I]sn't it true that at no time on those 15 pages in front of you does Mr. Sumner say the name Djavon Holland? You would agree with that, right?
A: Yes. He doesn't say that name.
On redirect, the prosecutor indicated that he was going to ask Koenig what name Sumner used to refer to the rear passenger. Defendant's trial counsel objected on hearsay grounds, but Judge Rea, at sidebar, allowed it:
THE COURT: What you[, prosecutor,] can do is you can ask along the same lines as [defense counsel] did, that there's a third person mentioned and did you develop a suspect, what's the name of that suspect. You can ask him that as long as you can tie up that Dante and Djavon Holland are one in the same person.
That's only fair, [defense counsel]. You created the inference that -- impermissibly, but there was no objection. So whatever it is, it is. You pulled these gentlemen's statements through the trooper to show that they did not identify your client. That's really what you were doing.
[DEFENSE COUNSEL]: That's right.
THE COURT: But what the prosecutor is doing is clarifying, yes, they did only in a different way.
[DEFENSE COUNSEL]: Fine. That's fine.
Koenig then testified that Sumner said that "Dante" was sitting in the backseat of the Camry.
Later, Sumner testified that defendant occasionally uses the names "Dante" and "Kevin" when picking up women. Clearly, the references were innocuous. The names are not inherently pejorative, and the jury was given an explanation for their use unrelated to criminal conduct. Accordingly, no prejudice enured to defendant by virtue of this testimony.
Defendant also maintains that in the absence of a curative instruction, it was error for the jury to hear Koenig refer to the issuance of defendant's arrest warrant. References to warrants made before a jury are improper because they suggest that a judge has found sufficient cause to authorize arrests and searches. State v. McDonough, 337 N.J. Super. 27, 34 (App. Div.), certif. denied, 169 N.J. 605 (2001). This general rule does not apply, however, in instances where a passing reference to a warrant is made and the jury has heard the same evidence as would the judge who issued the warrant. Ibid. In this instance, nothing about Koenig's testimony, or the circumstances of the incident for that matter, implied that there was evidence other than what the jury heard. The passing reference, therefore, is not likely to have had an impact on the jury's verdict and is certainly not "clearly capable of producing an unjust result." R. 2:10-2.
Defendant also challenges several comments that the prosecutor made in his closing statement. Defense counsel, in his closing, argued to the jury that Sumner and Martin were convicted criminals who received very lenient sentences, including probation, for lesser offenses than robbery. Defense counsel was implying that if defendant was guilty of anything, he too was only guilty of theft. In response, the prosecutor referred to plea bargaining as a "necessary evil" in his summation and discussed the co-defendants' specific sentences in relation to the extent of their involvement in the incident. After the State's summation, defense counsel immediately objected, asserting that the comments about plea bargaining in general, and the co-defendants' agreements specifically, were improper. The objection was overruled.
Generally, prosecutors are "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). In fact, "prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Ibid. Prosecutors may also provide the jury a measured and appropriate response to remarks made by defense counsel during his or her summation. State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001). The prosecutor's "response to an issue injected by opposing counsel cannot be considered a foray beyond the evidence adduced at trial." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996). Consequently, "remarks by a prosecutor, made in response to remarks by opposing counsel, are [generally] harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993).
"[W]here the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial[,]" however, reversal is necessary to adequately safeguard defendant's trial rights from governmental abuse. Frost, supra, 158 N.J. at 83; see also State v. Johnson, 31 N.J. 489, 511 (1960) (The Supreme Court has "not hesitated to reverse convictions where [it has] found that the prosecutor in his summation overstepped the bounds of propriety and created a real danger of prejudice to the accused."). To warrant reversal, a reviewing court must find the prosecutor's comments "clearly and unmistakably improper, and [they] must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001) (internal quotations omitted).
The prosecutor's comments to which defendant objects were made in response to defense counsel's arguments. Furthermore, in the closing charge, the trial judge instructed the jury that the comments of counsel were not evidence. The prosecutor's discussion of plea agreements in general and the co-defendants' plea agreements specifically, therefore, was not misconduct. Even if it could be said to have crossed some unacceptable threshold, we consider it harmless beyond a reasonable doubt.
Defendant next contends that even if the asserted errors do not themselves warrant reversal, consideration of them in the aggregate demands it. "[E]ven when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). This claim, however, is also without merit.
Only "where 'the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, [do] our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury.'" State v. Echols, 398 N.J. Super. 192, 217 (App. Div.), certif. granted, 195 N.J. 522 (2008) (quoting State v. Orecchio, 16 N.J. 125, 129 (1954)). When the trial court gives the proper instructions and "the jury's verdict was consonant with the weight of the evidence presented[,]" the cumulative error doctrine does not apply. State v. Conway, 193 N.J. Super. 133, 174 (App. Div.), certif. denied, 97 N.J. 650 (1984). As we have discussed, none of defendant's challenges are even error, let alone harmless error. Accord Hunt v. Smith, 856 F. Supp. 251, 258 (D. Md. 1994), aff'd sub nom. Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995), cert. denied, 516 U.S. 1054, 116 S.Ct. 724, 133 L.Ed. 2d 676 (1996) ("[T]he fact that many claims of counsel error are pressed does not alter fundamental math - a string of zeros still adds up to zero.").
Lastly, defendant contends that the sentencing judge's findings as to aggravating and mitigating factors at sentencing were unsupported. To the contrary, from our review of the entire record, we are satisfied that the judge reasonably weighed the aggravating and mitigating factors. See State v. Megargel, 143 N.J. 484, 494 (1996).
The sentencing judge found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), which requires consideration of the "gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age." The sentencing judge also found factor twelve, N.J.S.A. 2C:44-1(a)(12), which takes into account the age of the victim where it is "60 years of age or older." The victim was a seventy-seven-year-old man, who was punched in the head and the body, suffering not only cuts and bruises, but also a punctured gum and nightmares. The facts warranted the finding of these factors.
Similarly, defendant had been sentenced on a theft conviction out of Maryland on June 17, 2005, just a few months after this crime occurred. Accordingly, it was appropriate to find that there was a risk that defendant would reoffend, N.J.S.A. 2C:44-1(a)(3), as well as a need to deter him and others from violating the law, N.J.S.A. 2C:44-1(a)(9).
Defendant argues that the sentencing judge should have found mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), that defendant's character and attitude indicate that he is unlikely to commit another offense. There were no facts developed on the record that would warrant that factor. Although the judge discussed defendant's maintenance of a B average in his first year of college, and in general terms, that he may otherwise have the ability to live a law-abiding life, nothing in the record indicates that defendant is unlikely to commit another offense. In our view, the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).