On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-07-1104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Parrillo, Lihotz and Messano.
Defendant Timothy Heard appeals from his conviction and the sentence imposed following a second trial for his role in a series of robberies committed upon several Rutgers University students living off-campus in New Brunswick. Defendant was initially indicted by the Middlesex County grand jury along with co-defendants, Kyle Parker-Hall and Jalonn Lassiter, and charged with: second-degree conspiracy to commit burglary and robbery, N.J.S.A. 2C:5-2 (count one); third and fourth-degree unlawful possession of a weapon (box cutter and handgun), N.J.S.A. 2C:39-5(b) and (d) (counts two and four); second and third-degree possession of a weapon for an unlawful purpose (box cutter and handgun), N.J.S.A. 2C:39-4(a) and (d) (counts three and five); second-degree burglary, N.J.S.A. 2C:18-2 (counts six and eight); third-degree theft, N.J.S.A. 2C:20-3 (count seven); first-degree armed robbery, N.J.S.A. 2C:15-1 (counts nine through thirteen); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts nineteen through twenty-two); and three counts of second-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts twenty-three through twenty-five). In addition, Lassiter was charged with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts fifteen, sixteen and eighteen), Parker-Hall with one count of the same (count fourteen), and defendant with one count of first-degree aggravated sexual assault against M.L. (count seventeen).
A fourth individual, Raymond Dargan, entered into a pre-indictment plea bargain, and, before trial commenced, Lassiter and Parker-Hall entered into plea agreements with the State. Also before trial, the State dismissed counts two and four, the unlawful possession of the box cutter and handgun. At trial, the judge granted defendant's motion for acquittal on all the kidnapping charges, counts nineteen through twenty-five.
Defendant was convicted of conspiracy (count one), burglary (counts six and eight), and theft (count seven), but was acquitted of possession of the handgun for an unlawful purpose (count five), and aggravated sexual assault (count seventeen). The jury was unable to reach a verdict on counts three (possession of the box cutter for an unlawful purpose), and nine through thirteen (armed robbery). A mistrial was declared.
On March 11, 2005, the court sentenced defendant on the burglary and theft charges to an aggregate term of fourteen years, subject to an 85% parole disqualification in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 We affirmed defendant's conviction, but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Heard, No. A-5401-04 (App. Div. Oct. 3, 2007), certif. denied, 195 N.J. 522 (2008).
While his appeal was pending, in June 2005, defendant was retried on those charges previously resulting in a mistrial. Defendant was found guilty on all counts, i.e., third-degree possession of the box cutter for an unlawful purpose, and five counts of armed robbery in the first-degree. After denying his motion for new trial, the judge imposed sentence, the terms of which we discuss in greater detail below. This appeal ensued.
Defendant raises the following points for our consideration:
THE TRIAL COURT'S RULING ADMITTING EVIDENCE OF THE SEXUAL ASSAULTS COMMITTED AGAINST C.D., N.R., AND M.L. AS PROOF OF THE ROBBERIES RESULTED IN HARMFUL ERROR BECAUSE OF THE ATTENUATE RELEVANCE OF THE EVIDENCE AND BECAUSE THE PROBATIVE VALUE OF THE EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE.
(A) THE RELEVANCE OF THE EVIDENCE TO THE MATERIAL ISSUES OF BODILY INJURY OR FORCE USED ON THE VICTIMS WAS ATTENUATE.
(B) THE EVIDENCE SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403 BECAUSE ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICE.
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE INVESTIGATOR CLEMENTS TESTIFIED THAT HE BELIEVED THE DEFENDANT WAS GUILTY. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE TESTIMONY OF INVESTIGATOR CLEMENTS FROM WHICH THE JURY COULD INFER THAT THE DEFENDANT HAD A PRIOR CRIMINAL RECORD. (NOT RAISED BELOW)
TESTIMONY THAT THE DEFENDANT WAS IDENTIFIED IN JAIL AS BEING "ONE OF THE RAPISTS" VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN SUMMATION. (NOT RAISED BELOW).
IMPOSITION OF AN AGGREGATE CUSTODIAL SENTENCE OF [THIRTY] YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
(A) IMPOSITION OF [FIFTEEN] YEAR BASE TERMS ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY ON COUNTS NINE, TEN, ELEVEN, TWELVE AND THIRTEEN WERE MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
(B) IMPOSITION OF MULTIPLE LEOTEF PENALTIES IS ILLEGAL.
(C) THE COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON THE DEFENDANT'S CONVICTIONS ON COUNTS NINE AND ELEVEN.
In a pro-se brief, defendant raises the following points:
THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL.
(A) [THE] VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE.
(B) [THE] PROSECUTOR MADE PREJUDICIAL STATEMENTS DURING SUMMATION FROM WHICH THE JURY MORE THAN LIKELY INFERRED DEFENDANT SEXUALLY ASSAULTED M.L.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL [WHO] FAILED TO OBJECT TO THE PROSECUTOR'S PREJUDICIAL STATEMENTS DURING SUMMATION FROM WHICH THE JURY MORE THAN LIKELY INFERRED DEFENDANT SEXUALLY ASSAULTED M.L.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO ELICIT KEY INFORMATION ...