March 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS E. MIAL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-0171.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Collester and Grall.
Tried to a jury, defendant Thomas E. Mial was convicted of the following crimes: second-degree conspiracy to commit robbery and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:15-1, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:5-2 (count one); second-degree attempted robbery, contrary to N.J.S.A. 2C:15-1, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:2-6 (count two); two counts of second-degree possession of weapons for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (counts three and four); and fourth-degree possession of a prohibited device, to wit, hollow nose bullets, contrary to N.J.S.A. 2C:39-3f and N.J.S.A. 2C:2-6 (count seven). On December 23, 2005, Judge James C. Heimlich sentenced defendant to an aggregate term of ten years with a parole ineligibility period of eighty-five percent of the sentence and a three-year period of parole supervision upon release under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In summary, the facts adduced at trial were as follows. In September 2003, P.B. became a confidential informant for Detective Eric Barlow of the New Jersey State Police. Over the next eleven months P.B. supplied Barlow with information about criminal activity. Barlow paid P.B. $100 in cash each time they met amounting to about $2,000 over the eleven-month time period. P.B. had a criminal record including convictions for robbery.
He met defendant Thomas Mial in March 2004. Over the course of the next two months they "developed an agreement and understanding." P.B. said that defendant planned a robbery of the Affinity Federal Credit Union in New Providence and wanted to recruit P.B. to participate along with co-defendants William Roundtree and Anthony Lindsey.
On August 11, 2004, P.B. called Detective Barlow and arranged to meet him at 4 p.m. He told Barlow for the first time that defendant had asked him to take part in a robbery of the credit union the following morning. Barlow told P.B. to call defendant so that he could overhear the conversation about the robbery. P.B. placed a cell phone call to defendant and leaned over so that Barlow could hear the conversation. Barlow heard defendant ask P.B. whether or not he was going to be "a member of the crew" and said he was going to commit the robbery with or without P.B. After the call, Barlow told P.B. he had to notify his superiors about the matter. A short time later, he called P.B. to get permission to record his conversation with defendant at a meeting that night. P.B. agreed, and authorization was given by a Deputy Attorney General for the consent recording.
At about 10 p.m. P.B. and defendant spoke on the telephone. During the call defendant confirmed that they were "gonna go in the morning" when the credit union opened at 8:30 a.m. Defendant said he would pick up P.B. later that night and meet with Lindsey and Roundtree to go over the plan. The police placed a wire recorder on P.B., and later that night he met with defendant, Roundtree and Lindsey in defendant's black Acura Legend. During that conversation defendant laid out the robbery plan in detail. He said they would use two Acura automobiles and drive to the bank at 8:35 a.m. Defendant would drive the first car and Roundtree would follow in the second Acura with P.B. and Lindsey as passengers. Defendant told them where to park at the credit union and assigned tasks to each. P.B. was to carry a gun and be the "control man" inside the credit union. Roundtree was to go to the back and force an employee at gunpoint to open the vault. Lindsey was to duct tape all persons inside the credit union while defendant waited in his car outside. The others would give defendant the money, and both cars would drive away.
Defendant said he would supply two guns, duct tape, gloves, and two Motorola two-way radios to be set on channel 5 so that they could communicate before and during the robbery. He told the others to wear old clothes that he would later burn because the witnesses could describe the clothing worn by the robbers. He concluded by instructing them to get a good night's sleep and be ready by 7:45 a.m.
Detective Barlow and members of the State Police Special Weapons and Tactics Team set up surveillance at the credit union at 7 a.m. the following morning. At 8:40 a.m. defendant drove a silver Acura into the credit union parking lot. Detective Barlow had obtained a Motorola two-way radio which he set at channel 5. He heard defendant say, "It's good, baby, come on in." Three minutes later a black Acura pulled into the parking lot with Roundtree driving, P.B. in the front passenger seat, and Lindsey in the rear. The police moved in and arrested the four men in the cars. A Motorola two-way radio was in each car, both set on channel 5. On the floor behind the driver's seat of the black Acura was a duffel bag containing two 9mm handguns. One was loaded with eleven bullets and the other with seven hollow nose bullets. The serial number on one of the guns was defaced. Also inside the bag were two rolls of duct tape, a pair of leather gloves and a pair of cloth work gloves.
At the conclusion of the case, defense counsel requested that the court give a jury instruction on statutory entrapment pursuant to N.J.S.A. 2C:2-12. The trial judge declined because statutory entrapment was inapplicable when causing or threatening to cause bodily injury is part of the offense charged. Defense counsel then sought a judgment of acquittal on the issue of due process entrapment based upon the testimony of the State's witnesses. After argument, the trial judge denied the motion, giving the following reasons:
The Court finds that [P.B.], who was the agent for the State, testified that [defendant] approached him to become part of a crew in order to perform a robbery at the Affinity Credit Union. This approach, by [defendant], occurred approximately two months before August 12, 2004, when the Credit Union was to be robbed. There were conversations with [defendant] and [P.B.] and others, which are not recorded, wherein [P.B.] indicates that [defendant] was attempting to get a crew together and, also, was getting a number of individuals to perform specific functions.
On the tapes that we do have, [defendant] does about 90 to 95 percent of all the talking, and [defendant] is, clearly on the tapes, the individual who is the mastermind of the Credit Union robbery. He [is] not only allocating job functions to all of the coconspirators, but he also gives them their specific job function and how to do it and goes into great detail as to the specifics of how you do the crime. Also, he tells [P.B.] that if [P.B.] can't be there on the specific date that they are going to go, which is in the early morning hours of the 12[th], that they are going to do the robbery without him. And on the date of the robbery [defendant] is, once again, the mastermind in that he is doing the surveillance and he gives the go signal for them to approach the bank, "Come on in and make your move," to execute and commit the robbery. Fortunately, there is a S.W.A.T. team at the bank and they are arrested as they are within 20 feet of the bank as - about to commit this robbery of the bank. The defense argues that because there were conversations that were not taped that the Court can then infer that those non-taped conversations that [P.B.] was, in fact, actually planning and putting the idea into [defendant's] head.
The Court does not accept that analysis.
The Court finds that the argument is far to[o] speculative. It is true that the State did not have any supervisory activity of . . . [P.B.] during this time period, but that does not go to show [P.B.] was initiating any of the actions that anything he was doing was anything that was inappropriate. It may very well have been that [defendant], who approached [P.B.] to get in the robbery that, maybe, [P.B.] was, actually, going to participate. However, it does not show that this idea came from [P.B.], and he was taking actions in initiating to encourage, to aid, to urge them to commit this robbery. All the proofs here are quite to the opposite. . . . [Defendant] is the one who was the kingpin here and he is giving all the specifics. . . . [T]here has been, to this Court, no proof here that [P.B.] was involved in taking any action to initiate any of this activity at the Credit Union, but, rather, the Court finds, from what has been presented to the Court, that it was [defendant] who was the initiator and the person who was that driving force to commit this Credit Union robbery. That being said, your motion for . . . due process entrapment is, hereby, denied.
After the court denied the defense motion for judgment of acquittal on the charge of second-degree attempt to commit robbery, the judge granted defendant's motion on the fifth and sixth counts of the indictment, charging third-degree unlawful possession of a weapon, to wit, a 9mm Jennings handgun, contrary to N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6, and fourth-degree possession of a prohibited weapon, to wit, a 9mm Makarov Baikal handgun with a defaced serial number, contrary to N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6.
On September 21, 2005, the jury returned a verdict against defendant of guilty on conspiracy to commit robbery, second-degree attempted robbery, possession of a weapon for an unlawful purpose, possession of hollow nose bullets, and possession of a prohibited weapon, to wit, a handgun with a defaced serial number.
Subsequently, defendant filed a motion for judgment of acquittal on the charge of attempted robbery notwithstanding the verdict pursuant to Rule 3:18-2, or for a new trial pursuant to Rule 3:20-1. Following the denial of his motion, defendant received his sentence for an aggregate term of ten years with a parole ineligibility period of eighty-five percent pursuant to NERA.
On appeal, defendant alleges the following:
POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED MIAL'S MOTION FOR ACQUITTAL BASED ON DUE PROCESS ENTRAPMENT.
POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ADMITTED A HIGHLY PREJUDICIAL PHOTOGRAPH OF THE "TAKEDOWN," IN VIOLATION OF N.J.R.E. 401 AND 403.
POINT III - MIAL'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY AND TO DUE PROCESS OF LAW WERE VIOLATED WHEN THE COURT FAILED TO VOIR DIRE THE REMAINING JURORS AFTER JUROR NO. 11 OVERHEARD MIAL'S CONVERSATION DURING A BREAK. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
POINT IV - THE PROSECUTOR EMBARKED ON AN IMPROPER LINE OF QUESTIONING WITH CUSTOMER PIGNIO AND EMPLOYEE WILKIE THAT AMOUNTED TO REVERSIBLE ERROR.
POINT V - THE TRIAL COURT ERRED WHEN IT DENIED MIAL'S MOTION TO DISMISS THE ATTEMPTED ROBBERY CHARGE ON THE BASIS THAT THERE WAS NO "SUBSTANTIAL STEP" TAKEN.
POINT VI - MIAL'S SENTENCE IS MANIFESTLY EXCESSIVE. (Not Raised Below.)
Due process entrapment entails egregious government misconduct, "patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principle of fundamental fairness." State v. Florez, 134 N.J. 570, 584 (1994); State v. Johnson, 127 N.J. 458, 473 (1992). Defendant's argument is that the testimony of the State's witnesses proves entrapment as a matter of law. State v. Talbot, 71 N.J. 160 (1976). When due process entrapment is raised, a court must consider various factors including the following: the justification for targeting a defendant, the degree to which the crime was a police "creation and manufacture of the crime," the degree to which the police directed or controlled the criminal enterprise, and whether the nature of the crime required more police efforts of investigation. Johnson, supra, 127 N.J. at 474-79.
Defendant relies upon State v. Grubb, 319 N.J. Super. 407 (App. Div. 1999) in which we held that the defendant made a prima facie showing of due process entrapment, and the State was unable to prove by its requisite burden of clear and convincing evidence that defendant had not been entrapped. The decision turned on the minimal supervision of the informant and the unrestricted authorization given to the informant to engage the defendant, a police officer, in telephone conversations that were unmonitored. The State permitted the informant to proceed without controlling his conduct and without verifying his statements under circumstances where there was strong personal motivation by the defendant to avoid incarceration for a third indictable conviction.
The facts of this case are clearly distinguishable. The conversations monitored and recorded by the police clearly indicated that the defendant was both the director and lead actor of the criminal operation. Defendant argues that since there were conversations earlier between P.B. and defendant that were unmonitored, there was "the possibility that P.B. recruited Mial to orchestrate the robbery." We agree with the conclusion of the trial court that this "possibility" was purely speculative without any basis in the testimony or any showing by the defense. Therefore, we find no merit to defendant's argument. See Johnson, supra, 127 N.J. at 480; Florez, supra, 134 N.J. at 586-88. See also State v. Brooks, 366 N.J. Super. 447, 455-56 (App. Div. 2004); State v. Riccardi, 284 N.J. Super. 459 (App. Div. 1995).
Defendant's remaining arguments relating to his convictions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Finally, defendant's sentence of ten years with a parole ineligibility period pursuant to NERA was within the ordinary term of imprisonment for a second-degree crime and, given defendant's prior record, it was not excessive.
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