April 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIMOTHY HEARD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 FROM M.L. ABOUT [THE] KNIFE.
THE TRIAL COURT'S STATEMENT OF REASONS FOR RUNNING COUNT [ELEVEN] CONSECUTIVE TO COUNTS [NINE, TEN, TWELVE AND THIRTEEN] WAS ILLEGAL AND INSUFFICIENT.
We have considered these arguments in light of the record and applicable legal standards. We remand the matter for the entry of an amended judgment imposing a single LEOTEF penalty; in all other respects, we affirm.
Jeffrey Miller, a student at Rutgers University, testified that on March 8, 2004, at approximately 1:30 a.m., he was sleeping in his room at 82 Central Avenue in New Brunswick. He was awakened when "his door f[ell] into [his] bed." Miller saw "a couple of figures standing in the doorway" with two other figures "standing . . . further behind." One of the men asked if "this was Johnny Ray's house," and, when Miller responded no, the men left the apartment. Miller did not realize anything was taken until later that morning when his roommate, Robert Acampora, discovered that $50 and his laptop computer were missing and reported the theft to the police. Miller was unable to identify the men, except for the fact that they were all African-American, and one wore a "do-rag," "like a bandana tied real tight sitting on top of [his] head."
At approximately 11:30 p.m. on the night of March 7, 2004, Danielle Facompre, another Rutgers student, went to the Olive Branch bar and restaurant in New Brunswick to celebrate her birthday. Six of her friends joined her: Justin Lang, James Jordan, N.R., M.L., Eimear Murray, and Kendall Smith. The group left the bar near closing time, around 2:00 a.m., and arrived at 31 Stone Street around 2:30 a.m. N.R. and M.L. lived there with three other roommates, two of whom, Mariann Sideco, who was asleep, and C.D., who was studying, were in the apartment when the group arrived.
Smith left after about fifteen minutes, and Lang stayed on the couch in the living room while the others either went to bed or congregated in the bathroom to do cocaine. After about ten minutes, Lang saw four or five African-American males enter the apartment, "dressed in baggy, dark clothes" and wearing ski masks or do-rags over their faces. When he asked if they were looking for anyone, one of the intruders pushed him, demanded money and asked where was the "weed." The intruders blindfolded Lang and forced him into C.D.'s room where they repeated their demands for money from both of them. C.D. testified that she saw three or four black males, wearing dark clothes, with covered faces.
After several minutes, the intruders took Lang and C.D. to the bathroom and pushed them inside where Murray, Facompre, M.L., Jordan, and N.R. were. Lang attempted to hide behind the door and use his cell phone to call the police, but he was discovered by one of the intruders who took the phone and punched Lang in the face. Murray also attempted to call 911 but was caught before she could finish giving all the necessary information.
The intruders continued asking for drugs, money, and ATM cards, and eventually pulled the students out of the bathroom into the living room. Facompre and Jordan recalled seeing four African-American males wearing darker clothing, ski masks, and gloves. M.L. recalled one intruder putting a knife to her throat and instructing her to get on the floor without looking at them. Murray testified that she attempted to reason with the intruders, but stopped when one put a razor to her neck and told her to sit down and shut up. She described the intruders as four or five "dark-skinned" males, all wearing ski masks, dark clothes, sweaters, and jeans or dark pants.
After forcing all of the students down on the floor, one intruder ripped the back of C.D.'s pants with a box cutter and forced her to perform oral sex on him, after which she spit the ejaculate onto her sweatshirt. One of the intruders held something metallic against Lang and asked what it felt like to have a .32 to his head. They then did the same to Murray and Jordan. Lang was forced to undress and was thrown into a closet.
At about the same time, M.L. and N.R. were taken to two different bedrooms and sexually assaulted. M.L. testified that she was taken into one of the bedrooms, where she remained for around ten minutes, during which time she was sexually assaulted by two different men. She remembered seeing between three and five total intruders, and told police that one of her assailants was wearing a light-colored bandana, baseball cap, and blue jeans. N.R. testified that there were four or five African-American, male intruders, all with dark clothing, gloves, and jackets. She was "sexually assaulted in various different ways" in one of the bedrooms by a man wearing a red ski mask and baggy jeans.
The intruders then took Lang out of the closet and threw him on the floor, and M.L. and N.R. were brought out of the bedrooms, both nearly naked. The students were then forced into the closet and barricaded, while the men tore up the apartment and ultimately left. Before doing so, they took one dollar and a cell phone from Lang; Facompre's digital camera, cell phone, and approximately $40 in cash; Jordan's cell phone, debit card, and $140 in cash; M.L.'s cell phone; $100, keys, and a cell phone from Murray; and $400 in cash and a cell phone from N.R.*fn2
After several minutes passed, the students escaped from the closet and Lang ran upstairs to call the police, who arrived shortly thereafter, around 3:02 a.m. The sexual assault victims were all examined at the hospital, and forensic evidence was obtained. Vaginal swabs taken from N.R. contained Lassiter's DNA, while the stain on C.D.'s sweatshirt contained Parker-Hall's DNA. Testing on a stain on M.L.'s sock revealed Lassiter's DNA, but no DNA was found from a second attacker. Defendant's DNA was not found on any submitted specimens.
Detective John Selesky responded to 31 Stone Street around 3:30 a.m. After speaking with several of the victims at the hospital and at headquarters, Selesky returned to the apartment in the afternoon to canvass the neighborhood and was alerted to the incident at 82 Central Avenue, which was three and one-half blocks away. He believed the two home invasions were likely related.
During the course of the investigation, a dispatcher at All Brunswick Taxi Service told police that there was a pick-up at St. Peter's Hospital emergency room, located within blocks of 31 Stone Street, around the time of the assaults. Police discovered that a call was placed to the cab company at 2:53 a.m. from Jordan's stolen cell phone. The cab driver told police that he picked up four African-American males outside of the emergency room and dropped them off at Redmond Street. He identified a photograph of Lassiter as one of the four men he picked up.
The hospital's security tapes revealed four black males entering the Women's and Children's Pavilion, and approaching a security guard. The guard, Donald Crone, claimed the men asked him for directions to the emergency room, and he identified defendant in court as one of the men. Crone testified that in the early morning hours of March 8, defendant's hair was "wild, like Don King looking," and similar to one of the men in the videotape. Other tapes showed the four men in the hallway leading to the emergency room at 2:56 a.m., and getting into a cab at 2:57 a.m. One individual was wearing a jacket with a "73" on it, and another was holding what appeared to be a case for a laptop computer. At trial, Acampora identified the case in the photo as similar to the one that contained the computer stolen from his apartment.
Selesky took the hospital surveillance tapes and showed them to uniformed officers in an attempt to identify any of the four men shown. Two officers were able to identify defendant and Dargan by name as two of the individuals. Police went to Redmond Street to canvass the area where the cab driver had left off the four men. When they knocked on the door of 149 Redmond, defendant answered. Investigator Mark Clements recognized defendant's white clothing as similar to that worn by one of the four men in the hospital surveillance tape. He testified defendant was wearing a white do-rag that kept his hair close to his head.
Through cell phone records, police contacted Parker-Hall's aunt in Maryland, who confirmed that he lived in the basement apartment of 149 Redmond Street. They obtained a search warrant for those premises. When they executed the warrant, near 11:00 p.m. on March 13, they found Dargan and defendant in the apartment. Defendant was wearing a hat and mask on his head, and when Clements pulled the mask off, defendant's "hair pop[ped] out," at which point Clements said to himself, "we have our guy." The police recovered marijuana, two knives, a box cutter, a red bandana, and several do-rags and other head coverings during their search of the premises. The head coverings and one of the knives were similar to those described by the Stone Street victims.
Defendant was arrested for possession of marijuana, and Clements and Detective Rodney Blount took him to his sister's apartment to obtain his identification and conduct a consensual search of defendant's room. In his room, they found white sweatpants and a white sweatshirt, like those defendant was seen wearing on the hospital surveillance tapes, a zip-front hooded gray sweatshirt with a "73" on it, like that worn by Parker-Hall in the tapes, do-rags, a folding knife, and a wallet containing defendant's social security card and an address to a correctional facility in New York. Defendant gave a statement to police denying any participation in the crimes.
On March 24, 2004, police interviewed Sampson Coleman who, after being arrested on March 13 for "purse snatching," asked to speak to Selesky. Coleman testified at trial that on the evening of March 7, he heard Lassiter talking to defendant, Dargan, and Parker-Hall about going up to the college to get some money. Following the events at 31 Stone Street, Coleman testified that a guy that was "involved in the rape" was trying to sell a stolen cell phone. Following defendant's arrest, he was incarcerated with Coleman, who told police he heard other inmates refer to defendant as "one of the rapists." Coleman further testified that defendant told him that he was involved in the home invasions at 82 Central Avenue and 31 Stone Street, supplying Coleman with a number of details including where the "girls were when he and his friends entered," that one of the girls was "Chinese," one was black and one was white, and that he held a knife to the Chinese girl's neck.
Defendant did not testify or call any witnesses in his defense. After approximately one hour of deliberations, the jury returned its verdict finding defendant guilty of all charges.
Prior to trial, defendant objected to admission of any evidence regarding the sexual assaults. In denying defendant's application, the trial judge concluded that:
[T]he sexual assault that allegedly took place at the time of the armed robberies is part of the same criminal activity. And also, since the State is required to prove for the armed robbery counts that force was used and there was the infliction of bodily injury upon the various victims, then clearly the State should be allowed to establish that as part of the use of force [and] the infliction of bodily injury  some of the victims were sexually assaulted.
The judge further stated:
[T]he State is alleging here that this defendant acted in concert with others during the commission of these crimes. And it does have to demonstrate the credibility of the complaining witnesses, if you will. And clearly to the extent that a complaining witness testifies as to a sexual assault and then there is confirmatory evidence in the form of DNA analysis or other corroboration, I think the State is entitled to admit that evidence . . . for purposes of demonstrating the credibility of the witnesses.
However, recognizing that defendant was acquitted of aggravated sexual assault at the first trial, the judge ordered the State "to restrict the details of these sexual assaults as much as possible . . . since [they] are not counts at this point that the State in any way can prosecute." The judge also indicated he would give appropriate instructions to the jury at various stages of the trial.
In Point I, defendant contends the trial judge committed reversible error by permitting any testimony regarding the sexual assaults that occurred during the robberies. Defendant argues that this evidence was not particularly relevant to the charges, or, alternatively, that the prejudice associated with the evidence outweighed any marginal relevance it may have had. Finally, defendant notes that having been acquitted of the sexual assault of M.L., admission of the evidence essentially violates the double jeopardy clause. We find no merit to the arguments raised.
Under N.J.R.E. 401, relevant evidence is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action," and it is admissible under N.J.R.E. 402. However, in accordance with N.J.R.E. 403(a), "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury." In determining the admissibility of evidence, the trial court should inquire as to "the logical connection between the proffered evidence and a fact in issue[.]" State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). We accord the trial judge considerable discretion in making the determination as to relevance, and will not disturb that decision "unless . . . [his] finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Here, the judge determined that the sexual assault evidence was relevant because 1) it was part of the same criminal activity and would provide the jury with the complete picture of the events; and (2) the assaults went to an element of the crime of robbery, namely, the infliction of bodily injury or use of force.
Res gestae evidence is evidence that is "relate[d] directly to the crimes for which [a] defendant" is being tried, and "serves to paint a complete picture of the relevant criminal transaction." State v. Martini, 131 N.J. 176, 242 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995). It is usually "evidence of conduct occurring 'during the same time frame as the crime charged in the indictment . . . [that] establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.'" State v. L.P., 338 N.J. Super. 227, 235 (App. Div.)(quoting State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995)(emphasis added), certif. denied, 170 N.J. 205 (2001).
Here, the sexual assaults were part and parcel of the robberies for which defendant was being tried and the evidence regarding them was highly relevant in several ways. First, through the sexual assault DNA evidence, the State was able to prove that Lassiter and Parker-Hall were two of the perpetrators. We are hard-pressed to understand how the evidence regarding the semen samples could have been introduced unless the victims were permitted to testify, in a limited way, about the sexual assaults. Identifying Parker-Hall and Lassiter was critical to identifying defendant, who was seen in their company minutes after the robberies took place, entering the hospital emergency room. Additional incriminating evidence linked defendant to his co-defendants thereafter.
Second, the evidence of the sexual assaults served to corroborate Coleman's testimony as to the jailhouse conversations he had with defendant. Such testimony is notoriously subject to attack, as it was in this case, and corroboration of details of the crime that Coleman claimed defendant told him about was critical in order for the jury to assess his credibility.
Third, the State was required to prove all the elements of first-degree robbery. As the judge recognized, the threat or actual use of force against the victims, or causing their bodily injury, was an essential element of the State's case. While there was other significant evidence that tended to prove this element, the sexual assaults were highly probative and presumptively admissible.
Defendant alternatively maintains that the sexual assault evidence was too overwhelmingly prejudicial to allow its admission under N.J.R.E. 403. We disagree.
In considering res gestae evidence, a court is obligated to engage in the weighing process required by N.J.R.E. 403, balancing whether its probative value is outweighed by its prejudicial effect. State v. Long, 173 N.J. 138, 161-62 (2002) (noting further that balancing under Rule 403 is equivalent to the fourth prong of the Rule 404(b) analysis required under State v. Cofield, 127 N.J. 328 (1992)). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998). Although other crimes evidence when reviewed under N.J.R.E. 404(b) must meet "a stringent standard for [its] admission[,] . . . our courts have not frequently excluded highly prejudicial evidence under the fourth prong of Cofield." Long, supra, 173 N.J. at 162.
Here, the inherent prejudice of the sexual assault evidence did not outweigh its probative value. The parties stipulated that none of defendant's DNA was found on any of the samples, and the jury was told several times that defendant was not charged with the sexual assaults. The State restricted the testimony to the basic facts, asking leading questions of the witnesses at the appropriate time, and not asking the victims to explicitly detail the events.
In point 1(B) of his pro se brief, defendant argues that the trial judge failed to instruct the jury with respect to the purpose of the sexual assault evidence. Although the judge indicated he intended to give a limiting charge, and invited the attorney's to suggest appropriate language, the record reveals no instruction was given, nor was any objection lodged by defense counsel to the judge's charge.
Although an instruction clarifying the manner in which the jury could consider the sexual assault evidence might have been helpful to eliminate any potential for prejudice, it was not required and the failure to give one was not reversible error. See Long, supra, 173 N.J. at 156 (noting "a limiting instruction was unnecessary because the evidence was admitted under the res gestae exception") (citing Martini, supra, 131 N.J. at 242 (holding that "[i]nsofar as the evidence related to the res gestae, no limiting instruction was necessary")). Moreover, the jury was repeatedly told by the attorneys in their openings and summations that defendant was not charged with the sexual assaults.*fn3 We find no basis for reversal.
In Points II, III and IV, defendant raises evidential issues to which there was no objection made below, and in Point V and Point 1(B) of his pro se brief, defendant raises error regarding the prosecutor's summation comments to which no objection was made at trial. Therefore, we consider these issues under the plain error standard, i.e., whether any of these alleged errors was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
On direct examination, Investigator Clements testified that during the execution of the search warrant at 149 Redmond Street, he pulled a mask off defendant's head, and "[a]t that point, [defendant's] hair pop[ped] out." Clements went on to say that having seen the hospital surveillance video, "[he] sa[id] to [him]self we have our guy." Defendant argues that Clements's comments cast him in the improper role of a "truth-teller who is authorized to advise the jury on the basis of ex parte investigations what the facts are and that the defendant is guilty." See State v. Pasterick, 285 N.J. Super. 607, 620 (App. Div. 1995). In support of this argument, defendant relies on State v. Frisby, 174 N.J. 583 (2002).
In Frisby, a child endangerment case, police officers testified that they interviewed several witnesses, all of whom substantiated the father's claims, and that the father was never charged because he was considered more credible than the defendant, the child's mother. Id. at 589-90. The Court concluded that the defendant was deprived of a fair trial because "the police essentially gave the jury their opinion regarding the innocence of [the father] and inferentially the guilt of [the defendant]," thereby touching on the ultimate question for the jury. Id. at 593-95. Any impropriety was further exacerbated by the fact that the two witnesses were law enforcement officers and the jury may have accorded special deference to their testimony. Id. at 595-96.
Frisby is distinguishable. Viewed in the proper context, Clements's testimony did not imply defendant's guilt as to the robberies. Rather, as the State argues, his statement merely showed that he believed he had located one of the men from the hospital security tapes. Indeed, defendant was not arrested for any of the crimes charged in the indictment at that point, but, instead was arrested for possession of marijuana found in the basement apartment at the time of the search. More importantly, the jury had the opportunity to assess the surveillance pictures and reach their own independent judgment as to whether defendant was one of the four men depicted in them. They also had the ability to assess Crone's testimony, keeping in mind that the security guard made an in-court identification of defendant as one of the individuals in the hospital that evening. In short, Clement's comments did not bring about an unjust result.
Defendant next contends that Clements's testimony regarding the contents of his wallet found during the consensual search of his room could have led the jury to infer that defendant had a prior criminal record. Clements testified that he and Blount found:
[A] brown wallet with a Social Security card for Timothy Joe Heard, Jr.; a number of cards; an address to Washington Correctional Facility in Comstock, New York; some papers with some phone numbers on it. And basically that's it for that. We also have a New York State driver's license or identification card with Timothy Heard with his hair braided.
This testimony was trivial, not indicative of defendant's having a criminal record, and fleeting in nature. It was incapable of producing an unjust result. Defendant's argument is clearly without merit. R. 2:11-3(e)(1)(E).
In Point IV, defendant contends that introduction of hearsay testimony from Coleman regarding what other inmates said about defendant violated his right of confrontation and deprived him of a fair trial.
Coleman was incarcerated with defendant and, at trial, the prosecutor questioned him regarding his interactions with defendant during that time:
Q: [D]id you ever encounter [defendant]?
A: Yes, I had.
Q: And did you ever have a conversation about him?
A: I had a conversation with him.
Q: He was telling you details about his case?
A: Pretty much, yes, he was.
Q: For what purpose was he telling you about his case?
A: Just that I was -- I was shocked when I heard the news about. And then a couple people was around the pod -- around the pod where we was at in the unit. It was like saying that's one of the rapists. That's one of the guys.
Q: Okay. Stop right there.
As the State argues, the statement was a non-responsive answer to the prosecutor's question as to why defendant would tell Coleman about his case. Upon hearing his response, the prosecutor immediately told Coleman to "[s]top right there," and then used a series of leading questions to elicit the sought-after answer that Coleman was a more experienced inmate from whom defendant believed he could obtain useful advice.
Although the testimony was inappropriate, defendant never objected, thus denying the judge the opportunity to cure any possible prejudice. We are convinced, however, that given the fleeting nature of the comment, and the prosecutor's quick response, the error did not produce an unjust result. R. 2:10-2.
Defendant argues that in summation the prosecutor improperly "suggested that the jury had a societal duty to ensure  defendant [did] not 'get away with it.'" During summation, the prosecutor stated:
Folks, it's almost [fifteen] months since this crime occurred. And it is time for those who did it to be held to account. The evidence in this case is direct and circumstantial. It's persuasive. It's overwhelming. On the morning of March 8th, 2004, there's no doubt that [defendant] was a full and active participant in the home invasion at 31 Stone Street and that he was actively involved in the armed robbery of five of those kids.
Don't let him get away with it. There's only one verdict that's consistent with the evidence, consistent with the law you're being asked to apply, and which your common sense will tell you is the truth. Ladies and gentleman, the defendant is guilty as charged.
There was no objection to the comments.
A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006). However, as long as the prosecutor's remarks in summation are "reasonably related to the scope of the evidence presented[,]" he or she is allowed considerable flexibility. State v. Frost, 158 N.J. 76, 82 (1999). In criminal cases, it is expected that prosecutors will make "vigorous and forceful closing arguments[,]" ibid., but they may not reference their own personal opinions regarding a defendant's guilt. State v. Farrell, 61 N.J. 99, 103 (1972). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.
In State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000), we reversed the defendant's conviction based upon the prosecutor's asking the jury to "send the community" "[a] message" by finding defendant guilty, and not "letting [defendant] get away with what [he] did." The prosecutor's statement in this case--"[d]on't let him get away with it"--exceeded the bounds of proper prosecutorial comment by implying that if the jury acquitted defendant, it would have incorrectly caused the release of a dangerous person back into society. Such comments are not to be condoned, and, given our repeated, unambiguous condemnation of similar remarks, we are hard-pressed to understand why the prosecutor chose to make them in this case.
However, that one sentence was contained in an otherwise appropriate, lengthy summation that highlighted the overwhelming evidence of defendant's guilt. "When all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007). We find no basis for reversal.
In his pro se brief, defendant contends that the trial court improperly denied his motion for a new trial on the grounds that the jury verdict was against the weight of the evidence, and that the prosecutor made prejudicial remarks relating to the sexual assaults during summation.
At the motion hearing, the trial judge found that "the jury clearly ha[d] sufficient evidence to find defendant guilty of participating in the armed robberies while armed with a knife beyond a reasonable doubt." The judge succinctly cited the evidence as follows:
[T]he testimony from each of the victims describing the nature of the crimes and the number of assailants, the testimony of Sampson Coleman implicating the defendant both by his presence with the other defendants and by statements that he made to Sampson Coleman. There is, of course, the Saint Peter's security videotape showing the defendant together with the co-defendants very shortly after the crimes were committed only a couple of blocks away. There's the DNA testimony implicating two of the co-defendants and, of course, there are the weapons and the clothing seized at the time of the defendant's arrest in addition to a statement made by the defendant to the police which presumably caused the jury to question his credibility.
As to the prosecutor's summation comments, the judge found that his remarks were consistent with his initial ruling admitting the sexual assault evidence and were not unduly prejudicial. Noting that the evidence of the assaults was essential to establishing defendant's identity, presence, and participation in the robberies, the judge concluded that the prosecutor's remarks "did not constitute misconduct so egregious as to deprive defendant of a fair trial."
The trial court's ruling on defendant's motion for a new trial on weight of the evidence grounds "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We agree substantially with the trial judge's reasoning, and find no basis for reversal of his ruling on the new trial request based upon either contention that defendant has raised.
We turn to the sentencing issues defendant raises. With respect to counts nine through thirteen, five counts of robbery in the first-degree, the judge sentenced defendant to a term of fifteen years with an 85% NERA parole disqualifier on each count. The judge ran the sentence imposed on count eleven, the first-degree robbery of M.L., consecutively to the other four robbery sentences, all of which he ran concurrently to each other. The judge merged count three, the weapons offense, into the robbery counts. Among the financial penalties, the judge imposed a LEOTEF assessment.
The judge found no mitigating factors and two aggravating factors: (1) there was a risk defendant might commit another offense; and (2) there was a need to deter defendant and others. N.J.S.A. 2C:44-1(a)(3) and (9). The judge found the risk that defendant would reoffend to be "high given his juvenile history, his return to criminality after previous periods of probation and incarceration and the lack of remorse that  defendant clearly  demonstrated throughout the proceedings." Noting that Rutgers University "should be a safe haven for students," the judge concluded a lengthy sentence of imprisonment was necessary to deter others from committing "violent crimes within the university setting." Regarding the consecutive nature of the sentence on count eleven, the judge explained:
[T]here's no question that the -- all the robberies were committed at the same time and place and [are] part of the same criminal episode and pursuant to applicable law those facts might suggest favoring concurrent terms in this case; however, the armed robberies here involve five separate victims and the robbery of [M.L.] involved separate acts of sexual assault and violence which were committed after she was taken to a separate room in the apartment by one of the perpetrators and additional and separate acts of violence were committed on her.
[T]his Court finds that consecutive terms are also appropriate . . . because we did have in this case five separate victims of the armed robberies who were named in the indictment, one of whom was also the victim of a sexual assault by two different men, and then we also have two other victims who were not named in the robbery counts but were victims of the armed burglary for which the defendant has already been convicted and separate sexual assaults committed by co-defendants. It seems to me that then in the case of such an extremely violent and heinous criminal episode it would really be a miscarriage of justice to simply punish this defendant as though he had committed one armed robbery.
Defendant argues that his sentences were manifestly excessive and an abuse of discretion. He claims the judge failed to justify the imposition of the fifteen-year terms on each of the first degree robbery counts, instead of the minimum term of ten years. He further contends that imposition of a consecutive term on count eleven was improper under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), because the robberies all occurred during a single period of aberrant behavior, and because the court improperly "punish[ed]" defendant for the sexual assault on M.L., for which he was acquitted in the first trial. Finally, defendant argues that, in light of the LEOTEF penalty assessed on his convictions following the first trial, it was improper for the court to again impose the penalty following the second trial.
Because defendant's two trials stemmed from the same indictment, the State concedes that the second LEOTEF penalty was improper and should be vacated. State v. Owens, 381 N.J. Super. 503, 515 (App. Div. 2005). We therefore remand the matter to the trial judge for entry of an amended judgment of conviction. In all other respects we affirm the sentences imposed.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, the trial judge provided a clear explanation of his reasons for imposing a sentence greater than the statutory minimum. His factual findings regarding the aggravating and mitigating factors were supported by the record and the sentences do not shock our conscience.
In Yarbough, supra, 100 N.J. at 643-44, the Court set forth those factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). Certain extreme and extraordinary cases may warrant deviation from the guidelines. Yarbough, supra, 100 N.J. at 647.
Imposition of a consecutive sentence in this case was supported by the fact that separate acts and threats of violence were committed against numerous victims, albeit in close temporal proximity. The Court has said that "the multiple-victims [Yarbough] factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims[.]" Carey, supra, 168 N.J. at 429-30; see also State v. Molina, 168 N.J. 436, 442 (2001) (reemphasizing that consecutive sentences can be imposed based on the multiple-victim Yarbough factor alone). The imposition of a consecutive sentence on count eleven was entirely justified under the facts of this case. Lastly, defendant's claims of ineffective assistance of trial counsel implicate alleged failures regarding his attorney's trial technique. These "claims involve allegations and evidence that lie outside the trial record[,]" and are better preserved for post conviction relief, if defendant indeed chooses to pursue them. State v. Preciose, 129 N.J. 451, 460 (1992). In such an event, the arguments raised here are specifically preserved.
The matter is remanded for the entry of an amended judgment of conviction vacating the imposition of a second LEOTEF penalty. In all other respects, we affirm.