July 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WILLIAMS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Wefing and Parker.
Tried to a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing, the trial court merged the latter conviction into the former and because this was defendant's second Graves Act offense, sentenced defendant to forty years in prison. The trial court directed that defendant serve 85% of that term before being considered eligible for parole. N.J.S.A. 2C:43-7.2. Further, it directed that defendant serve this sentence consecutive to a sentence imposed upon him in Ocean County. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
From testimony presented at the trial, the jury could have found the following facts. On the evening of September 23, 2003, Jessica Smith was at the back counter of Katsin's Pharmacy in Red Bank. As she was preparing to close out her register, she was approached by a man wearing a hat and sunglasses who asked if she had anything for a bad hip. She helped the man, whom she later identified as defendant, find several items. Two other employees were in the store, Alicia Morris who was working at the front counter, and Brian Pucci, who was in the office, as well as several customers. Defendant approached Smith's rear register, and as Smith began to ring up his purchases, defendant pulled out a gun and told her to open the register. At that point two other men entered the store; one remained at the front counter with Morris while the other went to the rear to help defendant. The man who remained in the front wore a ski mask which looked as if the holes had been enlarged from their original size.
Smith had trouble opening the cash drawer and Pucci came to help her. He opened the drawer, which contained approximately $100; the robbers took the money. They then had Pucci and Smith empty their pockets. Defendant was agitated at how little money they had gotten and took Pucci into the store's rear office, insisting he come up with more money. He saw Smith's purse in the office and took her wallet. He then struck Pucci in the back of the head with his gun and Pucci began to struggle with him. The other man entered the office and punched Pucci. After beating Pucci, the two men fled out the rear door.
The third robber had remained standing at the front counter with Morris. His mask slipped and she recognized him as Larry Gibbs.*fn1 She told Gibbs both that she was going to tell her father and that his confederates had left. He ran out the front door.
Pucci, Morris and Smith ran out the back door of the pharmacy and saw the three robbers getting into a dark blue, boxy, cargo-style minivan. The three returned to the pharmacy, locked the back door and called 9-1-1.
The police responded promptly. Pucci was taken to the hospital for treatment of the injuries he had received in his altercation with defendant and the other robber.
Detective Robert Clayton of the Red Bank Police Department was the lead detective on the case. In conjunction with his investigation, he took the items that defendant had left on the counter when he took out the gun. He also took photographs of the scene, including the rear office, where Pucci's blood was visible on the floor.
Pucci, Smith and Morris each gave statements. In her statement, Morris said she had recognized co-defendant Gibbs because she had babysat for his son.*fn2 The police prepared three photo arrays, each of which contained defendant's picture, although in a different position. When an array was displayed to Smith, she selected defendant's picture; she said she was "99%" sure he was the robber. When Morris and Pucci were each independently shown a photo array, they each selected the same picture, but it was not of defendant.
John Samsel was a pharmacy employee who was not working the day of the robbery. When he reported for work the following day, he set about cleaning up the disarray he found. While doing so, he found a pair of sunglasses in the rear office where Pucci had struggled with his assailant. When Samsel learned that they did not belong to any of the store's employees, he turned them over to the police.
Three days after the robbery, maintenance staff at Lakewood Two Apartments noted a wallet in a storm drain. They retrieved it and learned it belonged to Smith. They contacted Smith who in turn contacted the police who arranged to pick it up. The spot where Smith's wallet was found was less than one-half mile from defendant's residence.
Approximately a week and a half later the police executed a search warrant for defendant's residence and van. Clayton testified that the van, which had been rented by defendant's fiancée, matched the description of the van used by the robbers. From the van's interior the police recovered a blue ski mask and a letter written by co-defendant Gibbs to a prospective employer that was dated September 23, 2003, the date of the robbery. In defendant's home the police recovered a loaded .45 caliber handgun and a pellet gun. Defendant was placed under arrest.
While defendant was in custody, the police took buccal swabs. They also took swabs from the frames of the sunglasses that Samsel found in the pharmacy office. These swabs were forwarded to the State Police Laboratory for DNA testing.
The scientist who performed this DNA testing no longer worked at the laboratory at the time of trial, having relocated to Wisconsin. Christopher Huber, who supervises forensic scientists at the laboratory, reviewed her analysis, notes and conclusions and testified in her stead at defendant's trial. He testified that defendant's DNA was tested against four samples taken from evidence recovered by the police: the left arm of the sunglasses, the right arm of the sunglasses, the interior of the ski mask recovered from defendant's van, and the exterior of that ski mask. Huber testified that no DNA was found on the left arm of the sunglasses and defendant was excluded as a possible contributor to the DNA found on the inside of the ski mask. He also testified that defendant was identified as the source of the major DNA profile found at ten of the thirteen loci examined from the DNA recovered from the right arm of the sunglasses. He explained that this major DNA profile occurs in only one out of every 13.4 trillion people in the African-American population. With respect to the outside of the ski mask, Huber testified that a mixture of DNA was present, with no major DNA profile. He also stated that only one out of 1.2 million African-Americans could have contributed to this mixture. Finally, Huber testified that while co-defendant Gibbs could not be excluded as a contributor to the DNA found on the ski mask, he could not have been a contributor to the DNA found on the sunglasses.
Defendant did not testify and did not present any witnesses. Co-defendant Gibbs presented one witness, the mother of his two children. She testified that Morris never babysat for them and that the blue ski mask found in the van belonged to their younger son Cameron.
Defendant presents the following arguments on appeal:
THE STATE INTRODUCED FORENSIC REPORTS ON DNA EVIDENCE BUT FAILED TO CALL THE ANALYST WHO TESTED THE EVIDENCE AND WROTE THE REPORTS. (Not Raised Below)
THE DEFENDANT WAS PREJUDICED BY IRRELEVANT EVIDENCE THAT SUGGESTED THAT HE HAD COMMITTED A CRIME WITH A GUN IN ANOTHER COUNTY. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE MATTER SHOULD BE REMANDED FOR A HEARING TO DETERMINE WHETHER JUROR NUMBER FOUR KNEW THE DEFENDANT AND TO DETERMINE WHETHER DEFENDANT WAS IN THE HOSPITAL AT THE TIME OF THE CRIME.
DEFENDANT'S EXTENDED-TERM SENTENCE IS EXCESSIVE BECAUSE THE JUDGE ERRONEOUSLY APPLIED THE "NO FREE CRIMES" NOTION TO JUSTIFY RUNNING THE SENTENCE CONSECUTIVE TO A PREVIOUSLY IMPOSED EXTENDED TERM WHILE, IN REALITY, WILLIAMS'S PRIOR ARMED ROBBERY WAS IMPROPERLY DOUBLE-COUNTED TO INCREASE HIS SENTENCE.
Defendant's first argument revolves around the State's use of Christopher Huber as its expert witness on DNA in the place of the forensic scientist who actually conducted the tests. This, defendant urges, violated his right of confrontation, guaranteed by both the Sixth Amendment to the United States Constitution and by article I, paragraph 10 of the New Jersey Constitution.
The right of confrontation is fundamental to our criminal jurisprudence. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." State v. Berezansky, 386 N.J. Super. 84, 90 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008)(quoting Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 1371, 158 L.Ed. 2d 177, 199 (2004)). Even prior to Crawford, our Supreme Court stressed the importance of a defendant's right to confront the preparer of laboratory certificates drawn in conformity with N.J.S.A. 2C:35-19. State v. Simbara, 175 N.J. 37 (2002).
And subsequent to Crawford, we have reversed convictions for driving while intoxicated when the State failed to produce the individual who prepared the laboratory certificates attesting to defendants' blood alcohol level. State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007); State v. Berezanksy, supra, 386 N.J. Super. 84; see also State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) (finding error where trial judge admitted laboratory report attesting to defendant's blood alcohol content despite the State's failure to produce the individual who prepared the report, but sustaining defendant's conviction on independent grounds).
In each of those cases, however, the defendant objected at trial to the failure to produce the individual responsible for the particular testing. Here, on the other hand, defendant made no objection at trial to the State's production of Huber to testify with respect to the testing performed by another scientist at the laboratory. Indeed, from our review of this matter, it is apparent that defendant attempted to use this substitution to his own advantage, arguing to the jury that it should reject Huber's testimony as unreliable because he had not been involved in the testing and analysis that he testified to.
We decline to permit defendant to take one strategic path at trial and, when that is unsuccessful, strike out on another one on appeal.
In addition, we are satisfied that the admission of these laboratory reports was not clearly capable of producing an unjust result. R. 2:10-2. Smith said she was "99% certain" in her identification of defendant. Her wallet was found a short distance from defendant's home. There was testimony that the .45 caliber gun recovered from defendant's home resembled that used in the robbery. The van in defendant's driveway closely resembled the description given of the getaway car used by the robbers.
At several points during defendant's trial, there were passing references to defendant's involvement with Ocean County authorities. There was, for instance, reference to the fact that the search warrant which authorized the search of defendant's home and van had been issued by a judge in Ocean County. There was testimony that the guns recovered in that search were stored at first with Ocean County authorities before being transferred to the custody of Monmouth County. There was also testimony that the ski mask recovered from the van had been stored "out of [Monmouth] County" and that defendant's buccal swab was taken by an Ocean County physician.
Defendant made no objection to any of these references at any time during his trial but now contends that they in some manner alerted the jury that he had committed another offense with a weapon in Ocean County. This, argues defendant, was an improper use of "other crimes" evidence under N.J.R.E. 404(b). We see no merit to defendant's contention that these brief references, offered to establish the chain of custody of various items, constituted plain error. R. 2:11-3(e)(2).
Defendant's next argument focuses on one word in the court's instructions. After defendant informed the trial court that he had decided not to testify, the court asked whether defendant wanted an instruction to the jury that it could not consider that fact in its deliberations. Defendant replied that he did. Accordingly, the trial court told the jury the following:
Now, ladies and gentlemen, Mr. Williams elected not to testify at trial. It is his constitutional right to remain silent. . . . You must not consider for any purpose or in any manner at arriving at your verdict the fact that Mr. Williams did not testify . . . .
That fact should not enter into your deliberations or discussions in any manner or at any time. Each defendant is entitled to have the jury consider all of the evidence presented at trial.
Presumption of innocence. That is, each defendant is presumed innocent even if he chose not to testify.
Defendant made no objection to this charge but now contends that its use of the word "even" conveyed to the jury the not-so-subtle message that defendant should have testified. He maintains that the charge should state that a defendant is presumed innocent whether or not he chooses to testify. While the phraseology defendant now suggests may be an acceptable alternative, the trial court's adoption of the wording of the model jury charge does not constitute plain error.
When defendant appeared before the trial court for sentencing, he raised two issues which he said entitled him to a further hearing. The first was with respect to juror number four. Defendant said that on the third day of trial, his daughter reminded him that he and juror number four had gotten into a verbal altercation at a bowling alley. This, he said, prejudiced the juror against him. He said he had informed his attorney of this as soon as his daughter brought it to his attention. In response to the trial court's question, defendant's attorney said this was the first time he heard of this.
Defendant also told the trial court that he had been in the hospital on the day of the robbery. He wanted the opportunity to present documentary corroboration of this.
The trial court denied both requests, properly in our judgment. They were unsupported by anything beyond defendant's mere assertion. Defendant had been arrested in October 2003, and his trial did not take place until July 2006. He had had ample opportunity to recall that he was hospitalized on September 23, 2003, and to obtain evidence to that effect. We see no need for a remand on either issue.
Defendant's final argument on appeal is that his sentence is excessive. Defendant was convicted of committing another first-degree robbery in Ocean County and was sentenced for that crime in January 2005 to a term of twenty-five years, with an 85% period of parole ineligibility. When defendant appeared in Monmouth County to be sentenced for the convictions which are before us on appeal, he was subject to a mandatory extended term because this represented his second Graves Act offense.
N.J.S.A. 2C:43-6(c). The sentencing court in Monmouth County directed that its sentence be served after defendant completed his Ocean County sentence. This, defendant argues, was excessive and constituted "double-counting."
Defendant's crimes in Ocean County were independent of and unrelated to his crimes in Monmouth County. Unrelated criminal episodes warrant consecutive sentences. State v. Ghertler, 114 N.J. 383 (1989).
Defendant refers to N.J.S.A. 2C:44-5(a)(2) and its prohibition against the imposition of more than one extended term. Under that statute, no more than one extended term sentence can be imposed at one sentencing proceeding. It does not bear upon defendant, who was sentenced separately in two counties for crimes committed in different locations, on different dates, with different victims.
In conjunction with our consideration of defendant's argument, we have had the opportunity to review the pre-sentence report that was prepared for defendant. It notes that defendant had been arrested more than twenty times and had eight prior indictable convictions. We see no abuse of the trial court's sentencing discretion.