March 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARIUS WILSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-01-0001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2008
Before Judges Carchman and R.B. Coleman.
Following a jury trial, defendant Darius Wilson was convicted of first-degree robbery, N.J.S.A. 2C:15-1; and second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Additional charges included in the indictment were dismissed at trial -third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; fourth-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). After a merger of the aggravated assault charge into the robbery charge, the trial judge sentenced defendant to a prison term of fifteen years subject to serving 85% without parole under the No Early Release Act, N.J.S.A. 2C:43-7.2.
These are the facts that were adduced at trial. On September 23, 2005, at approximately 11:30 a.m., 95 year old Joshua Hogate, was eating a sandwich at the McDonald's Restaurant on East Broadway in Salem, New Jersey. After finishing his sandwich, he walked to the rest room and began to use the urinal. While standing at the urinal, Hogate was struck on the side of the face by another man, later identified as defendant, who had entered the bathroom behind him. Defendant then pushed Hogate into the corner while throwing the victim's hand in the air and pushing up against him. Defendant then "ripped Hogate's pocket off" and took his wallet containing "at least 100 bucks," a Visa card, a Sears Roebuck card and various medical cards. During the struggle, Hogate yelled that he was "being robbed." Seconds later, defendant exited the bathroom and ran out the side door of the restaurant. Hogate claimed he only saw the "back of defendant's neck and the side of his neck." Hogate was never able to make a positive identification of the assailant.
As a result of the incident, Hogate sustained a lacerated hand, loose teeth, a cracked cheek bone and a fractured jaw which was broken in three places. Hogate also began having vision difficulties in one of his eyes as a result of the initial blow.
Herbert Sharp, who was eating in the McDonald's during the incident, explained he heard "an older gentleman holler that he had been robbed" and saw "an older gentleman" and "someone walking out the door in front of him." Sharp did not get a look at the person who got away, but saw that he had a white t-shirt on, was a "pretty good-sized fellow" and was black.
The manager of the McDonald's at the time, Harvey Melton, was not present during the incident but noted that the McDonald's had a "state of the art security" system with "maybe nine, ten security cameras." Melton was able to obtain a copy of the security footage from the day in question and took it over to the police station in Salem.
Two McDonald's workers, Yolanda Taylor and Alnisha Lewis, identified defendant as the man who was riding his bicycle outside of the restaurant on the morning of the incident. Both Taylor and Lewis stated they knew defendant before the incident.*fn1
Lewis, who was working the drive-thru at the time, explained she knew defendant "from the streets" and that "he was just hanging out at the phone booth, then he was on the phone -- on the phone. Then he just kept circling around the building on the bike." Lewis also said she thought defendant had on "a white T and some jeans." Taylor claims to have seen defendant riding his bike outside but did not notice what he was wearing at the time. Neither worker saw or heard anything of the incident and only became aware of the event when Hogate came to the counter injured. Taylor, who was working in the front of the restaurant at the time of the incident, said she never saw defendant inside the restaurant that day.
Salem Police Sergeant Melvin Vanaman responded to the call and arrived at the McDonald's at approximately 12:30 p.m. Upon arriving, Vanaman saw Hogate with some swelling and bleeding on the right side of his face and a "tear to the skin on his...left forearm, which he was bleeding from." Vanaman also spoke with Taylor, Lewis and Sharp at the restaurant before making his report. From these descriptions, Vanaman concluded that defendant was a possible suspect.
Four days later, on September 27, 2005, Parole Officers Michelle Russomano and Robert Wartenburg, went to defendant's house dressed in "plain clothes" to "bring him down to Salem Police Department for some questioning." When defendant answered the door and saw Russomano and Wartenburg, a Salem Police car drove by. Defendant "became frantic." Wartenburg asked defendant to step outside, but he refused. After defendant "acted a little aggressive," Wartenburg grabbed defendant's hand and a "scuffle occurred." During the scuffle defendant began "wrestling" with Wartenburg, and defendant kicked the door which hit Russomano in the shoulder and head. Russomano asserts that Wartenburg said "you're under arrest" to defendant during the scuffle, but Wartenburg does not recall either of them saying that to defendant. "During the melee" another officer arrived on the scene and arrested defendant.
Defendant raises the following issues on appeal:
THE COURT BELOW ERRED IN REFUSING TO SEVER COUNTS FIVE AND SIX FROM THE REMAINING COUNTS IN THE INDICTMENT. THUS THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. I, 9, AND 10.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
On the morning of trial, a colloquy ensued regarding the circumstances of the parole officers confronting defendant at his home. The prosecutor was wary of mentioning that defendant was on parole but was equally concerned that there be a bona fide basis for the officers appearing at his home. Defense counsel responded by suggesting severance, at which point the prosecutor noted that "the time to move to sever has come and gone." The judge concluded that the appropriate course of action would be to not identify the officers as parole officers and explain to the jury that it need not be concerned with the reason for the officers being at defendant's home or the ensuing arrest.
During the State's opening, the only mention of the officers was a brief statement: "[y]ou're going to hear from the two officers who during the arrest two, four days later, had to tussle with Mr. Wilson." Defense counsel made no mention of the officers in his opening. During the direct examination of both parole officers, no mention was made by the prosecutor as to their purpose for confronting defendant. The examination was vague, at best. Defense counsel, on cross-examination of Michelle Russomano, one of the officers, explored the reason for the officers' presence, prompting an answer that the officer was there to "have an adjustment session." Other than that vague reference, no testimony was elicited that linked defendant to parole or suggested the reason for the officers being at defendant's home. At the conclusion of the case but before submission to the jury, the trial judge dismissed both of the offending counts - assault on a police officer and resisting arrest. The judge informed the jury that they would not be considering any offense that arose out of the involvement of the two officers or the events that transpired on September 25, 2007.
In support of his argument, defendant asserts that the failure to sever the offending counts permitted the jury to hear other crimes evidence unrelated to the underlying offenses arising from the assault on Hogate which prejudiced defendant. We find no merit to this argument. As the State correctly notes, the issue was raised, initially, not by defendant but by the prosecutor seeking clarification as to the limits of his comments about the officers. The judge carefully delineated the parameters of permissible comment, and the prosecutor abided by the limitations to the point that the State was unable to meet its burden to have the matters submitted to the jury. In sum, the concerns about the jury hearing "other crimes" evidence proved to be limited, and even in the absence of an analysis under State v Colfield, 127 N.J. 328 (1992), the jury ultimately never considered the other offenses in its deliberations. When considered in context, the jury never knew why the officers visited defendant's home, and the pushing and shoving that ensued cannot be considered the type of testimony that would warrant severance of the charges. The charges were sufficiently connected to justify joinder, and we find no abuse of the judge's discretionary determination in denying defendant's belated*fn2 motion. See State v. Morton, 155 N.J. 383, 452 (1998).
We also find no error in the sentence imposed. The judge carefully analyzed the appropriate factors and said:
But, there are aggravating factors here that are uncontroverted and would not be of any dispute. It is not double counting to indicate aggravating factor number 2, the seriousness of the harm and the particular portion of the aggravating language that is germane to this case is the vulnerability or incapability of resistance. Doubtless if that had been another 21-year old young man in the men's room, a different result would have obtained, and in all probability Mr. Wilson would not have seen fit to accost another young healthy male as he did with someone who was vulnerable because of advanced age and incapable of effecting resistance. So aggravating factor number 2. Number 3 is urged, that is there is a risk he would commit another offense. Yes, there is, despite the fact that this is his first indictable offense, the Court is always constrained to not consider juvenile records with the same severity as one with an adult. But he has an extensive juvenile record, and I believe that that would go to the likelihood that he would commit another offense, and the risk that he would commit another risk.
The criminal record, number 6, I would give only slight weight because it is juvenile. And although it's extensive, and it still is a juvenile record, so aggravating factor number 6 slight weight.
Number 9 is the need for deterring the defendant and others. Well, certainly that applies to Mr. Wilson, that there is a need to deter not only Mr. Wilson, but everyone else from committing crimes of this type.
And number 12, that is directly on point, that he committed offense against someone not only 60 years of age or older, but 90 plus years of age.
Looking at the mitigating factors, the mitigating factor number 6, $500 restitution which I will order to Mr. Hogate, but given the fact that he's never had a job, and that there is to be a lengthy imprisonment, the likelihood of his paying that are, or is almost nonexistent. I give that slight weight, that's mitigating factor number 7. And I would give slight weight to - strike that, that's number 6. Number 7 I would give slight weight to as well, and that's his criminal history. He, the mitigating factor addresses that particularly when it reads that the defendant has no history of prior delinquency or criminal activity.
Well, he has no history of adult criminal activity, but he does have delinquency history, so I'd give that slight weight.
On balance then, the aggravating factors do substantially outweigh the mitigating factors.
We find no basis to disturb this sentence. See State v. Natale, 184 N.J. 458, 489 (2005) (quoting State v. Evers, 175 N.J. 355, 386 (2003)) (noting that "[w]hen reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'"); State v. Roth, 95 N.J. 334, 365 (1984);State v. Cassady, 396 N.J. Super. 392, 401 (App.Div. 2007) (noting that it is not an appellate court's "role to 'second-guess' a trial court's finding of sufficient facts to support an aggravating or mitigating factor, but there must be some support in the record and some recognition of judicial decisions construing the factors").