July 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LARRY GIBBS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2449.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2009
Before Judges Parker and Yannotti.
Defendant Larry Gibbs appeals from a judgment of conviction entered on October 10, 2006 after a jury found him guilty of first degree armed robbery, N.J.S.A. 2C:15-1; and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4a. He was sentenced to an aggregate term of sixteen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
These charges arose out of a robbery that occurred on September 23, 2003 in Red Bank. Co-defendant James Williams went into Katsin's Pharmacy wearing a hat and sunglasses. Williams approached an employee, Jessica Smith, and the owner/pharmacist, Brian Pucci, and asked for information about certain products. While Smith was assisting Williams, defendant and another unidentified individual, both wearing ski masks, entered the store. Defendant remained near the front door and locked it. In the meantime, Williams pointed a gun at Smith and demanded she open the cash register.
While Williams searched Smith's and Pucci's pockets, taking their wallets, Pucci opened the register and gave Williams $100 in cash. Williams demanded to know where any other money was located and when Pucci said there wasn't any other money, Williams hit him with the butt end of the gun. Pucci grabbed the gun and the two struggled for the weapon while the other unidentified individual punched Pucci in the head.
Defendant had stayed by the front door and another employee, Alicia Morris, recognized him from his voice and his eyes through the mask because she had been a babysitter for his son. Morris said she was going to call her father and defendant said she wasn't going to call anybody. Defendant called to Williams and the unidentified individual that the police were coming, and the two fled through the back door while defendant went out the front door of the pharmacy. Pucci, Smith and Morris ran out the back door and saw one of the suspects get into a blue van and drive away.
When the police arrived at the scene, Smith gave a description of Williams and identified his photo from an array of six shown to her one-by-one. The next day, the store manager found a pair of sunglasses in the store that did not belong to any of the employees. They were turned over to the police and DNA testing showed that Williams' DNA was on the sunglasses.
On September 26, 2003, the manager of Lakewood Plaza Two Apartments, Zebony Dorsey, found a wallet in a storm drain in the apartment complex. The wallet was turned over to the police and identified as Smith's.
On September 27, 2003, Pucci was shown a photo array and selected a photo, noting that the eyes were the same as Williams', but he did not identify that individual as Williams.
On October 8, 2003, a search warrant was executed for Williams' residence and van. The dark blue van matching the description provided by Smith, Pucci and Morris was parked in the driveway. A letter with defendant's name was found in the van, along with a dark blue ski mask. DNA testing on the ski mask did not rule out defendant. Police also found a .45 caliber handgun, six bullets and a pellet gun in the apartment.
In this appeal, defendant argues:
MISREPRESENTATIONS MADE BY THE PROSECUTOR IN SUMMATION PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
THE PROSECUTOR COMMITTED PLAIN ERROR BY ELICITING TESTIMONY THAT "JUDGE DANIELS IN OCEAN COUNTY" SIGNED THE SEARCH WARRANT. (NOT RAISED BELOW)
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL
A. THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE ON THE ISSUE OF IDENTITY
B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE IT FAILED TO CONSIDER THE "INTERESTS OF JUSTICE PRONG" OF R. 3:20-1
IMPOSITION OF A BASE CUSTODIAL SENTENCE OF 16 YEARS ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR FIRST DEGREE ROBBERY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION
With respect to his argument that the prosecutor made prejudicial statements in summation, defendant points to this statement:
[Y]ou heard from Alicia Morris. Alicia Morris sat here and described for you even though Mr. Gibbs was wearing the ski mask, and you'll have the ski mask, she was able to recognize him because he was a friend of her father, a friend of my father, my father Chester Morris. Larry Gibbs, friend of his family.
Defendant claims that neither Morris nor Detective Eliot Ramos, who testified with respect to his interview with Morris, gave testimony to support this statement. Since there was no objection at trial, the argument is subject to the plain error rule. R. 2:10-2.
During her testimony, Morris said that she told defendant she was "going to tell my dad." She further testified that her father told her defendant's last name was Gibbs. Detective Ramos was asked on cross-examination if he recalled asking Morris if the masked man "was someone you used to baby-sit for." Ramos said that Morris told him that her dad "kind of knows him" and that his name was Gibbs. Ramos further testified that Morris told him that defendant "was her father's friend."
In assessing a prosecutor's remark in summation, we must determine whether it was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996). Moreover, the remark must be evaluated in the context of the entire summation. State v. Harris, 141 N.J. 525, 560-61 (1995). We have carefully reviewed the State's summation and we are convinced that defendant's argument on this point is meritless. An inference can be drawn from the testimony that defendant was a friend of Morris' family, regardless of whether he was, in fact, a friend of the family.
Defendant next argues that the trial court erred in not striking the prosecutor's comment that a warrant was issued by a judge in Ocean County. Again, there was no objection and this argument is, therefore, subject to the plain error rule. R. 2:10-2.
During testimony about the search of the blue van, the lead detective on the case stated that the search warrants were signed by an Ocean County judge. Defendant claims that this disclosure unduly prejudiced him "by suggesting to the jury that a neutral judge had already determined that there was sufficient independent proof of the defendant's guilt to justify searching the van and seizing the ski mask that he was purportedly wearing." Defendant relies on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), to support this argument.
In State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), however, the Supreme Court held that a jury is not presumed to find a defendant guilty upon learning that a search warrant was issued. Id. at 240. The State may introduce evidence of a search warrant to demonstrate that the police were acting legally. Ibid. But, a prosecutor may not present evidence of a warrant to convince a jury that a judge has reviewed evidence of the defendant's guilt beyond that produced at trial. State v. McDonough, 337 N.J. Super. 27, 34 (App. Div.) (citing State v. Alvarez, 318 N.J. Super. 137, 148 (App. Div 1999); Milton, supra, 255 N.J. Super. at 520, certif. denied, 169 N.J. 605 (2001)).
Here, the detective referred to an Ocean County judge signing the warrant in the context of explaining the basis for the search. We find no plain error in the trial court's failure to strike the testimony.
Defendant next argues that the trial court abused its discretion in denying his motion for acquittal on the ground that the State's evidence was speculative as to his identity.
At the close of the State's case or after all of the evidence has been presented, a defendant may move for a judgment of acquittal on one or more of the offenses charged if there is insufficient evidence to warrant a conviction. R. 3:18-1. When such a motion is made, the trial judge must determine whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State. [State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975) (citations omitted).]
If a rational jury could find the defendant guilty beyond a reasonable doubt based upon the State's proofs, the motion must be denied. State v. Martin, 119 N.J. 2, 8 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 573 (1979)). We apply the same standard in reviewing denial of a motion for judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964); State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996).
Defendant contends that his motion for a judgment of acquittal should have been granted because there was only "speculative evidence" of his identification. We disagree. Morris' testimony, which was corroborated by other evidence, identified defendant by both his voice and his eyes. Defendant's contention that Morris misidentified him was an issue of credibility for the jury, not grounds for a judgment of acquittal. State v. Wilder, 193 N.J. 398, 405-06 (2008); State v. Perez, 177 N.J. 540, 552-53 (2003).
Defendant further argues that the trial court erred in denying his motion for a new trial. On a motion for a new trial,
[t]he trial judge . . . may grant the defendant a new trial if required in the interest of justice . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
Our standard for assessing the propriety of the trial court's denial of defendant's motion for a new trial is essentially the same as that for denial of a motion for judgment of acquittal. Indeed, defendant "reasserts the argument raised" in his prior point that there was insufficient evidence as to his identification, rendering it "speculative." We have addressed this argument previously and need not do so again.
With respect to defendant's sentencing arguments, he maintains that sixteen years for one count of first degree robbery was manifestly excessive. Defendant's record, however, with five prior convictions for indictable offenses, four municipal court convictions and three separate New Jersey state prison sentences, warranted the sixteen years on the first degree offense. We are satisfied that the trial court properly considered the aggravating and mitigating factors and that the sentence is neither manifestly excessive nor unduly punitive under the circumstances and does not constitute an abuse of discretion. State v. Roth, 95 N.J. 334 (1984).
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