May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE SPAGGERY AKA STAGGERY MAURICE AKA PETE BROWN AKA PHIL BROWN AKA PHILLIP F. BROWN AKA SPAGGERY MAURICE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0254-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Newman and Ashrafi.
Defendant Spaggery Maurice, misnamed in the caption as Maurice Spaggery, appeals his conviction after trial by jury on all four counts of an indictment charging armed robbery, firearms offenses, and hindering prosecution. He challenges the jury charge, the competence of his trial attorney, the prosecutor's summation, and his sentence. We affirm.
On September 5, 2004, at approximately 1:40 p.m., Elizabeth Nwanonyiri drove to the Fleet Bank on Chancellor Avenue in Irvington to withdraw cash for grocery shopping. She stopped at the bank's drive-up ATM and inserted her bank card into the machine. In her rear view mirror, she saw an African-American man step out of the passenger side of the only other car she saw in the parking lot.
Nwanonyiri entered her PIN number on the ATM machine and requested a $40 withdrawal. After she retrieved her receipt and ATM card from the machine, she suddenly saw the man standing at the side of her car between the ATM machine and her. The man asked, "What are you getting?" Nwanonyiri asked him what he wanted, at which point he produced a "black pistol" and pointed it at her. Nwanonyiri then said, "You can have it," and drove off quickly without attempting to get her money.
At trial, Nwanonyiri described the man as "a tall male, black", "between five eight, eleven feet and also medium weight. I should say about 160 to 180 pounds." She also testified that she only looked at him for a "split second" because her "focus was on the gun." Nwanonyiri stated that she "didn't get to look at him per se" and was not able to identify facial features.
She said the robber was "this shadow in front of me." When she drove away, she did not look back and did not see what happened to the man or her money. The prosecutor did not ask Nwanonyiri to identify defendant in court.
After the robbery, Nwanonyiri was afraid and confused and drove in the direction of her home. Along the way, she saw a police vehicle and pulled over. She told the officers that she had been robbed at the Chancellor Avenue Fleet Bank by a black man with a gun. She also told them that there was someone else with the man in a parked car. After speaking briefly to the officers, Nwanonyiri ran back to her car and went home crying. The police did not interview her until three months later.
Shortly after Nwanonyiri reported the robbery, still before 2:00 p.m., Officer Larkin Combs of the Hillside Police Department received a radio transmission instructing him to be on the lookout for a specific vehicle. A short time later, Officer Combs saw a gold Infiniti coming out of a Burger King drive-through approximately one mile from the Fleet Bank. He saw two men in the car. Officer Combs followed the vehicle as he called for backup. Officer Eduardo Teixeira arrived within a few minutes and, at that point, Officer Combs activated his lights and stopped the Infiniti.
Both officers approached and ordered the occupants of the car to step out. Officer Combs recognized the driver of the vehicle as Brandon Leath, whom he knew from previous arrests. Defendant was sitting in the passenger seat. As he stepped out, defendant said to Officer Teixeira that he had a gun in his pocket. Officer Teixeira immediately placed defendant under arrest, handcuffed him, and removed a loaded gun from his right pocket. Subsequent investigation revealed that defendant did not have a permit to purchase or carry a firearm. When tested, the police found the handgun to be operable. The gun, however, was mostly silver, not black.
At the site of arrest, defendant was patted down, and the officers recovered a black ski mask and $29 from his pockets.
The arrest report listed defendant's weight as 260 pounds. When arrested, defendant falsely identified himself as Philip Brown.
The next day, September 6, 2004, the police interviewed defendant after reading his Miranda rights to him. Defendant signed a form acknowledging that he heard and understood those rights. He then gave a four-page statement in which he confessed that he approached a woman at the ATM machine, asked for her money, and then took $40 from the ATM machine.
Defendant testified at trial. He denied that he had robbed Nwanonyiri or that he had been present at the location of the ATM machine. He testified that he had been sleeping in his home until about 1:00 that day when Leath picked him up. He rode with Leath to drop off Leath's girlfriend, and then they went directly to the Burger King. He said that he gave false information in his September 6, 2004, confession because the officers "told me that they would deport me. They told me to tell them about what they wanted to hear. . . . I didn't even know I was being charged with robbery." He said the gun belonged to another person and he had it with him that afternoon because he intended to return it to the owner. Defendant also testified that he gave the arresting officers a false name because he wanted to avoid being arrested.
Before trial, defense counsel filed a motion to suppress defendant's confession. The trial court held a hearing and denied the motion.
After two days of trial in April 2006, defendant was convicted on all counts of the indictment: first degree armed robbery, contrary to N.J.S.A. 2C:15-1; second degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); third degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b); and third degree hindering prosecution, contrary to N.J.S.A. 2C:29-3(b)(4).
At sentencing, the judge merged count two, possession of a firearm for an unlawful purpose, into count one, armed robbery, and sentenced defendant to eighteen years imprisonment, with an eighty-five percent period of parole ineligibility and five years of parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to two concurrent five-year terms on counts three and four, those terms also to run concurrently with the sentence on the robbery conviction. The sentencing court ordered further that defendant serve his sentence consecutively to the sentence he was already serving on an Essex County conviction for robbery.
Defendant argues the following on appeal:
THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT ONE SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF "IDENTIFICATION" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW)
DEFENSE COUNSEL'S FAILURE TO FILE A PRE-TRIAL MOTION TO SUPPRESS EVIDENCE, DEFENSE COUNSEL'S FAILURE TO FILE A PRE-TRIAL MOTION TO SUPPRESS THE DEFENDANT'S STATEMENT, AND DEFENSE COUNSEL'S FAILURE TO REQUEST A JURY INSTRUCTION ON IDENTIFICATION, CONSTITUTED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW)
(A) THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF MS. NWANONYIRI (NOT RAISED BELOW)
(B) THE PROSECUTOR MADE INACCURATE FACTUAL ASSERTIONS IN SUMMATION (NOT RAISED BELOW)
THE 18 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE, AND RUNNING THAT SENTENCE CONSECUTIVE TO THE SENTENCE THE DEFENDANT WAS CURRENTLY SERVING CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION
We find no merit in any of these points.
Initially, all of defendant's points on appeal, except his challenge to the sentence, are subject to the plain error standard of review because they were not raised before the trial court. Our rule pertaining to trial errors that are not of constitutional dimension, Rule 2:10-2, provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached.
State v. Branch, 182 N.J. 338, 353 (2005); State v. Macon, 57 N.J. 325, 336 (1971); State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Concerning the absence of an identification charge to the jury, the judge asked defense counsel during the trial whether there was a need for a separate charge on identification. The exchange was as follows:
THE COURT: Anything else? Identification in this case?
DEFENSE COUNSEL: There was no ID made so - -
THE COURT: There is no charge necessary?
DEFENSE COUNSEL: Judge, can I take a look at that charge and see what it says and if it has any language with regard to - -
THE COURT: Yes.
Defense counsel never requested an identification charge.
"When identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005). Identification is a key issue when it is the "major . . . thrust of the defense," and especially where the State relies on a single eyewitness. Ibid. (quoting State v. Green, 86 N.J. 281, 291 (1981)); State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984). Here, the State presented no eyewitness testimony that identified defendant as the person who committed the robbery. The victim was not able, and was not asked, to identify defendant in court, and she had not provided an out-of-court identification. Rather, the State's case was based on defendant's confession and circumstantial evidence identifying him as the robber.
The model criminal jury charges on identification focus on the ability of an eyewitness to observe and describe the person who committed the crime. They also warn the jury that eyewitness identification may be mistaken. See Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2007). Because there was no eyewitness identification of defendant, the trial court did not commit plain error by failing without a request to give an identification charge.
Next, defendant argues prematurely that he received ineffective assistance of trial counsel. We seldom entertain claims of ineffective assistance on direct appeal because they usually require evidence outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). Defendant contends that the record here contains sufficient facts to support his contention that trial counsel provided ineffective assistance in that she failed to file pretrial motions to suppress evidence and also failed to request a jury instruction on identification. We have disposed of the latter issue directly. With respect to pretrial motions, trial counsel did file a pretrial motion to suppress defendant's confession, which was denied. As to a motion to suppress evidence based on an allegedly unconstitutional motor vehicle stop, evidence outside the trial record would have to be developed to resolve defendant's claim of ineffective assistance of counsel. That claim must first be presented to the trial court in a motion for post-conviction relief under Rule 3:22.
Defendant argues next that reversal is required because of improper comments during the prosecutor's summation, but defendant did not object to the comments at the time of trial. "Generally, if counsel did not object, the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). In State v. Engel, 249 N.J. Super. 336, 377-78 (App. Div.), certif. denied, 130 N.J. 333 (1991), we said:
[D]efendants failed to interpose an objection to any of the comments they now claim constituted reversible error. Their arguments must thus be considered in the context of the plain error doctrine. R. 1:7-2; R. 2:10-2. It is fundamental in our practice that a claim of error which could have been but was not raised at trial will not be dealt with as would be a timely challenge. . . . [D]efendants were offered every opportunity for a fair trial and . . . their failure to object was predicated upon their view that either error was not committed or, if it was, then it was inconsequential.
An appellate court will reverse a conviction and order a new trial if it finds that the prosecutor's failure to confine his summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In State v. Smith, 167 N.J. 158 (2001), the Court explained that to rise to the level of plain error "the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 181-82 (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). See also State v. Marshall, 123 N.J. 1, 153 (1991); State v. Ramseur, 106 N.J. 123, 322-23 (1987), cert. denied sub nom. Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993).
Defendant objects to the following summation comment by the prosecutor, arguing that it was improper vouching for Nwanonyiri, the State's primary witness:
Who are you going to believe? Are you going to believe Elizabeth Nwanonyiri, the victim, who has no reason to lie and I submit that she was credible here. * * * Now, how are you going to resolve these discrepancies in the testimony? Who are you going to believe? Are you going to believe a woman who came in here who has no reason to lie or someone with a prior felony conviction who definitely has an interest in the outcome of this case and how this gets resolved? Are you going to believe someone who tells you that he carries around a ski mask in September because it might get chilly, or are you going to believe a woman who recollects to the best of her ability what happened at that ATM?
These comments were not improper vouching. A prosecutor may not express a personal belief or opinion as to the truthfulness of a witness. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). However, "[a] prosecutor may argue that a witness is credible so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004); accord State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997).
Here, the prosecutor's comment was not an expression of a personal belief in the truth of Nwanonyiri's testimony, and it did not imply that facts outside the record support her testimony. Rather, it was merely an argument that the victim of the robbery had no motive to lie, and it compared the victim's credibility to that of the defendant based on his criminal record, his interest in the outcome of the case, and the improbability of defendant's explanation from the witness stand about why he had a ski mask in his pocket on September 5th. The prosecutor's comments are based on the trial evidence with respect to credibility of witnesses.
Moreover, the court must "take into account defense counsel's opening salvo." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985)), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001); State v. Engel, supra, 249 N.J. Super. at 379. When the State's summation is in response to attacks on the credibility of its case, the prosecutor's remarks may respond and attempt to "balance the scales." State v. Munoz, supra, 340 N.J. Super. at 216. The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, supra, 106 N.J. at 320.
In her summation, defense counsel challenged the accuracy of the victim's recollection and attacked aggressively the honesty of the police witnesses. In reponse to the defense characterization of the State's case, the prosecutor's reference to Nwanonyiri having no reason to lie was appropriate argument.
Defendant also contends that the prosecutor misstated part of Nwanonyiri's testimony regarding how the gun was used in the robbery. At trial, Nwanonyiri testified that the man who robbed her "reached out somewhere. I think in his pocket. I'm not quite sure. He reached out and pulled the gun. All I saw was the gun pointing at me." In summation, the prosecutor said:
Shame on Miss Nwanonyiri not knowing how much the defendant weighed when he put the gun in her car. Shame on Miss Nwanonyiri for not giving a good description of what his face looked like when he put the gun in her car, a loaded .32 caliber in her car.
Although there was no express testimony that the robber ever held the gun inside the car while it was pointed at Nwanonyiri, a reasonable inference could be drawn that he did so. See State v. Engel, supra, 249 N.J. Super. at 381; see also State v. Harvey, 151 N.J. 117, 216 (1997) ("whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process") (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed. 2d 144, 157 (1986) (internal quotations omitted)).
Indeed, the space between the ATM machine and Nwanonyiri's car was occupied by defendant. It could reasonably be inferred that the gun he drew and pointed at her protruded inside the car. Moreover, the purpose of the prosecutor's remarks was to explain why Nwanonyiri might not have made better observation of the robber's appearance, because she was fixated on the gun. We discern no error, much less plain error.
Finally, defendant argues that his eighteen-year sentence of imprisonment is excessive and that it should not run consecutively to the sentence he was then serving. On appeal of a sentencing decision, the reviewing court is limited to determining whether "the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 366 (1984). "Only when the facts and law show 'such a clear error of judgment that it shocks the judicial conscience' should a sentence be modified on appeal." State v. Roach, 146 N.J. 208, 230 (1996) (quoting State v. Roth, supra, 95 N.J. at 364).
A sentencing court must make an explicit statement on the record of the aggravating and mitigating factors it has found and how they have been balanced. State v. Natale, 184 N.J. 458, 489 (2005). Here, the trial judge said the following about aggravating and mitigating factors:
This is your third indictable conviction, you have been adjudicated a delinquent on three prior occasions, you had two probationary terms and received violation of probation. I note that you have five active bench warrants outstanding against you and you may have some pending cases in municipal court.
I find aggravating factor 3 exits. I think that there is a strong likelihood that you would commit an offense in the future. And I really think that this sentence, while there is a presumption of incarceration, I think that there's a strong need to protect society from you. . . . I do find aggravating factor 9.
I don't find any mitigating factors, I find that the aggravating outweighs the mitigating.
These statements adequately gave the court's reasons for applying aggravating factors three and nine. N.J.S.A. 2C:44-1a(3), (9). Defendant had prior convictions, juvenile adjudications, and active bench warrants. He had violated prior terms of probation. Also, defendant was convicted of armed robbery and was in possession of a loaded handgun in his pocket when arrested. It was reasonable for the trial judge to find that there was a likelihood that defendant would commit other offenses in the future and that his criminal conduct must be deterred.
Defendant also contends that the sentencing judge failed to consider that the No Early Release Act, N.J.S.A. 2C:43-7.2, was applicable to his sentence. This assertion is incorrect. The trial judge discussed the applicability of NERA with defendant, stating, "That sentence is subject to the No Early Release Act, you must serve 85 percent of it before you are eligible for parole." Clearly, the trial judge was aware of NERA's impact on defendant's sentence. The decision to impose a sentence of eighteen years imprisonment was within his discretion, and it was justified by defendant's significant criminal and juvenile history and the seriousness of the armed robbery offense. See State v. Gardner, 113 N.J. 510, 516 (1989).
Last, ordering that the sentence run consecutively with the sentence for another robbery that defendant was then serving was appropriate under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The crimes and their objectives were independent of each other; they involved separate acts of violence or threats of violence; the crimes were committed at different times and in separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; and they were committed against separate victims. See id. at 643-44. "Consecutive sentences are not an abuse of discretion when the crimes involve multiple victims and separate acts of violence." State v. Roach, supra, 146 N.J. at 230; accord State v. Louis, 117 N.J. 250, 254 (1989).
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