July 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH KENION, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 2, 2008
Before Judges Cuff, C.L. Miniman and Baxter.
A jury found defendant Keith Kenion guilty of two counts of first degree kidnapping, N.J.S.A. 2C:13-1b(1) (Counts One and Three); two counts of third degree criminal restraint, N.J.S.A. 2C:13-2a (Counts Two and Four); two counts of first degree robbery, N.J.S.A. 2C:15-1a(1) (Counts Seven and Nine); one count of first degree conspiracy, N.J.S.A. 2C:5-2 (Count Ten); one count of second degree burglary, N.J.S.A. 2C:18-2 (Count Eleven); one count of second degree conspiracy, N.J.S.A. 2C:5-2 (Count Twelve); one count of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Thirteen); and two counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Counts Fourteen and Fifteen).*fn1
After merging Count Four with Count Three, defendant was sentenced to an extended term of life in prison with a No Early Release Act (NERA)*fn2 parole disqualifier. Count Two merged with Count One and the judge imposed a thirty-year term of imprisonment subject to a NERA parole disqualifier. On Count Seven, the judge imposed a term of twenty years with a NERA parole disqualifier. The judge merged Count Ten with Count Nine and imposed a similar term as Count Seven. Count Twelve merged with Count Eleven and the judge imposed a ten-year term of imprisonment with a three-year period of parole ineligibility. On Counts Thirteen and Fourteen, the judge imposed ten-year terms of imprisonment with three-year parole disqualifier terms. On Count Fifteen, the judge imposed a five-year prison term. All terms are to be served concurrent with the term of imprisonment imposed on Count Three.
Between 1:30 and 2:00 a.m. on September 8, 2003, Anthony and Carolyn Young, ages 81 and 80, respectively, were awakened in their Vineland home by two intruders who entered their bedroom, bound them and placed masks over their faces. At the time, Mr. Young was confined to a wheelchair as a result of a previous injury. One of the assailants pushed Mr. Young towards the bedroom window and hit him in the head with a ceramic banana, causing the banana to break. The assailant then struck Mr. Young in his left eye with a ceramic apple.*fn3 When asked, Mr. Young informed his assailant that he kept his coin collection in the drawer in a blue bag. The person who assaulted and gagged Mr. Young was later identified as defendant.
Mrs. Young identified one of the assailants as co-defendant Wayne Parker,*fn4 son of Thurman Parker, a recent tenant of a nearby house owned by the Youngs. According to Mrs. Young, Parker repeatedly struck her in the head, placed duct tape over her eyes, ordered her out of the bed, and dragged her downstairs. On the way downstairs, Parker stated that he knew that the Youngs stored coins and money in their safe. Next, Parker led Mrs. Young to the safe and ordered her to open it. Mrs. Young could not see without her eyeglasses so Parker called upstairs to defendant to locate them. When defendant could not find the glasses, Parker brought Mrs. Young upstairs to retrieve her glasses, but she, too, could not locate them. Parker again brought Mrs. Young downstairs to the safe, after which defendant located her glasses upstairs and brought them to her. Mrs. Young struggled with the combination lock, but eventually succeeded in opening the door to the safe. Parker took Mrs. Young into another room to retrieve the key required to open locked drawers in the safe.
Mrs. Young opened the safe and asked Parker for a glass of water. Parker led her to the kitchen, then to a couch, where he placed pillows on top of her head, causing her to feel like she was going to suffocate. Parker refused to allow Mrs. Young to go to the bathroom and forced her to urinate on the floor.
At some point, a third man entered the house. This man, John Palmer, assisted defendant and Parker with gathering and removing items from the house. As the three men assembled the cash and other items, the Youngs' doorbell sounded, causing the men to run from the house. Before leaving, Parker bound Mrs. Young with ripped clothing and left her on the couch. One of the assailants hit Mrs. Young on her rear as they exited the Youngs' home.
After a while, Mrs. Young untied herself and returned upstairs to Mr. Young, who was unresponsive and appeared to be dead. Mrs. Young used scissors to free Mr. Young from his tape restraints. Mrs. Young then helped Mr. Young to the TV room where she instructed her husband to use his nebulizer*fn5 to help him breathe. When she saw that Mr. Young had the nebulizer in place, Mrs. Young called 9-1-1.
At approximately 3:00 a.m. on the night of the home invasion, Dorothy Nelson, a newspaper delivery driver, pulled into the Youngs' driveway to deliver their morning newspaper. She noticed a beige Honda automobile parked in the U-shaped driveway of the residence. Nelson observed the vehicle backing up and then she heard a crash which sounded like breaking glass. Next, she saw an individual jump from the hedges next to the Youngs' home and enter the car on the passenger side before the driver of the vehicle pulled it forward and out of the driveway. As Nelson dropped off the Youngs' newspaper, she observed that the Youngs' porch door was slightly ajar. Based on Palmer's trial testimony, we know that Nelson observed defendant's and Parker's second departure from the scene. They had returned to retrieve Parker's cell phone.
At approximately 3:15 a.m., the Vineland Police Department dispatched Officer Steven Triantos to the Youngs' residence. He and Sergeant John Lauria were the first persons to arrive at the scene and were greeted at the kitchen door by Mrs. Young. Triantos observed that the door was broken off the frame and hinges. Mrs. Young was very upset and visibly shaken. Triantos noticed that the elderly woman had a laceration to her lip and a bloody nose. Mrs. Young told the officers that her husband had been beaten and he was upstairs in the bedroom.
On the way upstairs to the bedroom, Officer Triantos noticed that the house had been ransacked. He spoke briefly with Mr. Young, who was having difficulty speaking; the elderly gentleman's face was swollen and he appeared to be in pain.
Subsequently, police recovered evidence outside the Youngs' home. EMS personnel gave Triantos the duct tape which had been used by the perpetrators to cover Mrs. Young's face.
Detective Christopher Brunetta interviewed Mrs. Young at the hospital for approximately one and one-half hours while she was treated for her injuries. Brunetta observed that the woman had suffered multiple injuries and that she appeared shaken and scared.*fn6 Mrs. Young provided Brunetta with physical descriptions of three individuals*fn7 who committed the crimes against her and her husband. In addition, she informed the officer that she thought her neighbor and former tenant, Thurman Parker, was involved in the break-in and that Parker had a son, Wayne, whose residence was unknown.
By September 12, 2003, police suspected that Wayne Parker and John Palmer were involved in the Young robbery. Detectives Scott Collins and Steve O'Neill of the Vineland Police Department conducted an interview with Lena Bricker, grandmother of Wayne Parker's girlfriend, Lena Wilson. Thereafter, Collins and O'Neill traveled to Cumberland County College to locate Wilson, and transport her to police headquarters for an interview.
After meeting with Wilson, the police executed a search warrant of Wilson's automobile which was still located at the college. Inside the vehicle, police discovered a glass serving tray which belonged to the Youngs. A search warrant executed at Wilson's home recovered coins belonging to the Youngs.
The police then executed a search warrant at Thurman Parker's home and recovered proceeds from the burglary in the bedroom used by Wayne Parker. During the search of the Parker residence, Sergeant Vincent Solazzo observed a blue Honda Civic automobile driven by John Palmer pass the Parker residence. Solazzo noticed two other individuals riding with Palmer in the vehicle. After the car drove by a second time, Solazzo and Detective Francine Webb followed the vehicle in Webb's unmarked car and instructed a marked patrol vehicle to perform a motor vehicle stop of Palmer's car.
Solazzo approached the front passenger-side door, ordered Parker to exit the vehicle, and noticed defendant in the backseat. Initially, Parker was uncooperative, and appeared ready to flee. Solazzo observed Parker throw a coin book to the ground upon exiting the vehicle. In addition, the officer recovered a fabric bag containing coins from Parker's pocket.
Webb removed the driver, Palmer, from the vehicle, handcuffed him and performed a pat-down search, and ordered him to the ground. In Palmer's back pocket, she discovered a coin enclosed in a glass case.
Once Palmer was secured and searched, Webb proceeded to remove defendant from the vehicle. The detective performed a visual inspection of the back seat for weapons and noticed a bag on the floor from which several two-dollar bills and coins had spilled. In addition, Webb observed a paper money guide and a coin book on the seat next to the one occupied by defendant. The detective asked defendant, "[A]re you Keith[?]" to which defendant answered, "[Y]es. I'm from North Carolina. I'm Keith Kenion."
Webb removed defendant from the vehicle, handcuffed him and turned him over to Patrolman Kirchner who performed a pat-down search. Kirchner recovered a roll of money containing two-dollar bills from defendant's right front pants pocket. Thereafter, he transported defendant to police headquarters. Palmer and Parker were also arrested.
At the station, Palmer signed a consent form to search his vehicle. Numerous coins, jewelry and books on coin values were recovered from the vehicle, as was a woman's vanity with the initials "CGM," a cell phone, a pack of Newport cigarettes, and various clothing items.
Detectives Collins and Webb interviewed Palmer, after which he provided a handwritten statement of the events which occurred at the Youngs' home. Next, Palmer took the police to Parker's aunt's house, where they recovered a plastic storage container which held various items stolen from the Youngs' home. In addition, Palmer accompanied the police to a dumpster where he claimed defendant discarded sneakers worn during the burglary. Police recovered a pair of sneakers which contained carpet fibers matching uncommon carpet fibers found at the Youngs' home.
Two months after his initial interview and handwritten statement, Palmer submitted to a second interview with Collins and provided two additional recorded statements. Following their interview with Palmer, Detectives Collins and Shane Harris interviewed Parker, who provided a recorded statement to the detectives.
Defendant also provided a recorded statement to Detectives Webb and Ed Ramos. In his statement, defendant admitted participating in the home invasion, binding Mr. and Mrs. Young, and stealing items from the residence. Defendant, however, denied ever striking either of the victims.
When the three suspects were transported to the Cumberland County jail, they were placed in the same holding cell. While there, defendant attempted to attack Palmer, but was restrained by Parker.
Subsequently, Palmer negotiated a plea agreement with the State whereby he pled guilty to two counts of first degree robbery with concurrent ten- to twenty-year periods of incarceration on each count, subject to a NERA parole ineligibility term. All other charges against Palmer were dismissed pursuant to the plea agreement.
On January 31, 2006, Palmer testified on behalf of the State at defendant's trial. He explained his friendship with Parker and Parker's girlfriend, Wilson. He stated he met defendant the night of the home invasion. Palmer knew that defendant was Parker's cousin.
Palmer testified that on the evening of September 7, 2003, he drove his girlfriend's "goldish" 2002 Honda Civic to Vineland. Palmer was under the impression that he was traveling to Vineland to purchase marijuana and assist Parker in moving things out of his parent's home. Palmer picked up Parker and defendant at a Wawa convenience store in Vineland.
After picking up Parker and defendant, Palmer drove to an apartment complex to purchase marijuana. Next, the three men traveled to a 7-11 convenience store where Parker went into the store while Palmer and defendant remained in the car and purchased gasoline. Parker exited the 7-11 with gray duct tape and blunt cigars to smoke the marijuana. Palmer drove the trio around while they smoked the marijuana before he dropped Parker and defendant off at the home Parker's father formerly rented from the Youngs. Palmer testified that Parker and defendant took the duct tape with them.
Palmer left and went to a fast food restaurant for something to eat, but the restaurant was closed. He then drove to Wawa to use the bathroom, smoked another marijuana cigar and used his girlfriend's cell phone to talk to her for approximately one hour. While Palmer was talking to his girlfriend, Parker called. Palmer observed that Parker sounded rushed and hurried. Following their brief conversation, Palmer returned to the rental home next to the Youngs' home. When he turned into the driveway, he noticed someone waving him to the driveway of the Youngs' residence. He exited his car and Parker started handing bags to him. Palmer entered the Youngs' home and Parker handed him more bags. On Palmer's second trip into the house, he noticed defendant at the safe and Mrs. Young facedown on the couch. He observed the broken door frame and Parker grabbing more items from the home. At the time, both Parker and defendant were wearing masks.
At some point, Palmer heard what he thought was an alarm sounding, after which the three men rushed to the car. Palmer left the Youngs' driveway and made a right, when Parker realized he had left his cell phone in the Youngs' home. Palmer returned to the Youngs' home, after which he and Parker got out of the car. Palmer grabbed some other bags by the door while Parker retrieved his cell phone. Parker handed Palmer some glassware at the same time Dorothy Nelson arrived to deliver the morning newspaper. Thinking it was the police, Palmer dropped the glassware, causing it to shatter, and ran to the car. Parker ran out the door and towards his parents' former home. Palmer began to back his car out of the driveway. When Nelson's car did not move, he drove forward and Parker jumped back into the car. Defendant never left the car during the second trip to the Youngs' residence.
Palmer drove to Parker's girlfriend's home. During the ride, Parker and defendant discarded their masks and gloves. After they arrived at Parker's girlfriend's home, the three men and Parker's girlfriend carried bags of stolen property into the residence. Once inside, Parker and Wilson began to argue. Thereafter, Palmer and the girlfriend left to get something to eat at Wawa, before returning to her home. Parker and defendant remained at the girlfriend's home. Palmer then noticed that Parker and defendant discarded their clothing in a trash bag. Later they tossed it into a dumpster. In the home, Palmer noticed many of the stolen items from the Youngs' home, including old coins, coins wrapped in plastic, two-dollar bills, liquor and jewelry. In addition, he observed an old wooden record player with a large horn on top.
Palmer testified that he went along with the robbery because he was afraid he would end up tied up on the couch like Mrs. Young, if he did not. In addition, he thought he would be rewarded if he kept quiet.
The next morning, Palmer drove himself, Parker, and defendant to the Cumberland Mall to purchase a book about coins to determine the value of those stolen from the Youngs. Palmer purchased two coin books at the mall and defendant bought a new pair of sneakers. One of the coin books, in addition to a book given to the three men by a South Street vendor in Philadelphia, was recovered by police inside Palmer's vehicle on the day of their arrest. Palmer then dropped off Parker and defendant at Wilson's home and went to his girlfriend's apartment. Subsequently, Palmer purchased two additional coin and currency books at the Deptford Mall.
At some point, Palmer returned to Vineland to drive Parker and defendant to a store in Richland to sell some of the stolen jewelry. Once in Richland, Parker and defendant went into a store called Antique Depot and "got rid of a couple of stop watches and . . . old watches," while Palmer waited in the car. From there, Palmer drove to Parker's home.
Carolyn Bailey, owner of Antique Depot, testified that Parker and defendant came into her store in September 2003, seeking to sell several items that were later determined to have been stolen from the Youngs' residence. Bailey explained that she was familiar with Parker prior to that occasion. In addition, she stated that she had a brief conversation with defendant at the time, where he related to her that he was from North Carolina. Bailey agreed to purchase some of the items from the two men, however, she did not have cash to pay them on the spot; nonetheless, they left the merchandise with her.
Approximately two to three days after Parker and defendant visited Antique Depot, a police officer stopped by the store and discussed the robbery with Bailey. Following their conversation, the owner turned over the items left by the two men. In addition, Bailey identified Parker and defendant from photographs provided by the officer as the two men who had come into her store seeking to unload the stolen merchandise.
On September 16, 2003, Palmer drove Parker and defendant to Jeweler's Row and South Street in Philadelphia in a further attempt to sell the stolen items. A vendor on South Street agreed to purchase some of the merchandise and the three individuals returned to New Jersey to retrieve additional items. Palmer dropped Parker off at Parker's aunt's house then went to Wawa before returning to pick up Parker. Parker got into Palmer's car with bags containing several coins stolen from the Youngs.
From there, Palmer drove the men to Parker's parent's residence, where they observed what they believed to be unmarked police vehicles in front of the home. At Parker's instruction, Palmer drove around the block. While doing so, Parker telephoned his parents but no one answered. When making a second pass in front of the residence, the men were recognized by a detective and subsequently pulled over by a marked patrol unit.
On appeal, defendant, through counsel, raises the following arguments:
LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE BY PRECLUDING RECROSS-EXAMINATION CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.
THE DEFENDANT'S STATEMENTS MADE TO DETECTIVES NEGRON AND WEBB AT THE VINELAND POLICE STATION SHOULD HAVE BEEN SUPPRESSED BECAUSE THE RECORD BELOW LACKED AN ADEQUATE EVIDENTIAL FOUNDATION FOR THE TRIAL COURT TO HAVE FOUND THAT THE DEFENDANT WAS SPECIFICALLY GIVEN THE REQUIRED INFORMATION UNDER MIRANDA.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE DETECTIVE WEBB DID NOT HAVE PROBABLE CAUSE TO ARREST THE DEFENDANT.
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE MRS. YOUNG'S INADMISSIBLE TESTIMONY, THE PROSECUTOR'S INABILITY TO CONTROL MRS. YOUNG, AND THE TRIAL COURT'S INABILITY TO ISSUE A PROPER CURATIVE INSTRUCTION, RENDERED THE DEFENDANT'S TRIAL UNFAIR.
MRS. YOUNG'S IN-COURT IDENTIFICATION OF THE DEFENDANT VIOLATED THE DEFENDANT'S RIGHT TO DISCOVERY AND RENDERED THE TRIAL FUNDAMENTALLY UNFAIR (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION.
THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY (NOT RAISED BELOW).
A. THE TRIAL COURT FAILED TO INCORPORATE THE FACTS OF THE CASE IN ITS INSTRUCTIONS ON ACCOMPLICE LIABILITY (NOT RAISED BELOW).
B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT CO-DEFENDANT PALMER'S PLEA OF GUILTY CANNOT BE VIEWED AS EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).
IMPOSITION OF THE EXTENDED TERM BASE SENTENCE OF LIFE IMPRISONMENT ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE KIDNAPPING ON COUNT THREE WAS MANIFESTLY EXCESSIVE AND REPRESENTED AN ABUSE OF THE COURT'S DISCRETION.
A. THE COURT ABUSED ITS DISCRETION IN GRANTING THE PROSECUTOR'S MOTION TO IMPOSE AN EXTENDED TERM SENTENCE.
B. IMPOSITION OF A BASE TERM OF LIFE IMPRISONMENT WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant raises the following arguments:
TRIAL COURT'S FAILURE TO EXCLUDE CONFESSION AND FAILURE TO SUPPRESS EVIDENCE DERIVED FROM AN UNCONSTITUTIONAL "STOP", AND AN ARREST THAT WAS MADE WITHOUT PROBABLE CAUSE IN VIOLATION OF DEFENDANT[']S STATE AND FEDERAL CONSTITUTIONAL RIGHTS.
A. Unconstitutional "stop".
B. Unconstitutional arrest.
TRIAL COURT'S FAILURE TO EXCLUDE EVIDENCE DERIVED FROM COMPLAINT WARRANTS ISSUED IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL RIGHTS IS REVERSIBLE ERROR. U.S.C.A. CONSTITUTION AMENDMENTS IV, XIV: CONSTITUTIONAL ARTICLE 1, PARAGRAPH 7.
THE COURT LACKED SUBJECT MATTER JURISDICTION, AND PERSONAL JURISDICTION TO COMPEL THE DEFENDANT'S PARTICIPATION IN ANY AND ALL PROCEEDINGS IN VIOLATION OF CONSTITUTIONAL AMENDMENTS IV, AND XIV.
We commence our discussion with defendant's contention that the trial judge improperly limited the examination of witnesses. The trial judge informed counsel that he permits direct examination, cross-examination and redirect examination of witnesses. He also informed them that he permits recross-examination sparingly when it is appropriate. He said:
[M]y review of the rules is I permit direct, cross, and redirect.
I recognize that I have the discretion to permit a recross. I do that sparingly.
Don't count on it. But I recognize that, frankly, in every trial there's at least one or two times when it becomes appropriate.
But I will guide your objections accordingly. That would be the appropriate way to handle [it] if a redirect gets out of hand. (emphasis added).
On the fourth day of trial, the judge denied defendant's motion to relax the rule. In doing so, defendant did not refer then or at any other portion of the trial to a specific witness. Defendant urges that this "blanket prohibition" violated his Sixth Amendment right to confrontation. We disagree.
"'[A] trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so.'" State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.) (quoting Horn v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993)), certif. denied, 181 N.J. 546 (2004). "The exercise of this authority, however, is circumscribed by the judge's responsibility to act reasonably and within constitutional bounds." Ibid. (citing Ryslik v. Krass, 279 N.J. Super. 293, 297-98 (App. Div. 1995)).
Accordingly, the scope of cross-examination is a matter which is generally within the trial court's control, and its decisions in that regard will not be disturbed "in the absence of palpable mistake," Ostroski v. Mount Prospect Shoprite, Inc., 94 N.J. Super. 374, 382 (App. Div.), certif. denied, 49 N.J. 369 (1967), without "a clear abuse of discretion which has deprived [a party] of a fair trial," Persley v. New Jersey Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.) (citing Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993)), certif. denied, 177 N.J. 490 (2003); or "'unless clear error and prejudice are shown,'" State v. Martini, 131 N.J. 176, 263 (1993) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990)).
Pursuant to N.J.R.E. 611(a), the trial court is given broad discretion to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Section (b) of N.J.R.E. 611 provides that, "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination."
N.J.R.E. 611 had no predecessor under the former rules of evidence. However, the broad discretion vested in the trial court to control the mode and order of interrogating witnesses and presenting evidence "is comparable to the broad discretion invested by the common law in trial judges to control the scope and mode of examination of witnesses" during both direct and cross-examination. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611 (2008) (see, e.g., Bosze v. Metro. Life Ins. Co., 1 N.J. 5, 9-10-11 (1948) (trial judge has discretion to control scope of witness's testimony); Marion v. Pub. Serv. Elec. & Gas Co., 72 N.J. Super. 146, 158-59 (App. Div. 1962) ("[t]rial judge has discretionary power to exclude any evidence he deems too remote").
Thus, because the prior law was generally to the same effect, the scope of redirect and recross examination is presumably governed by N.J.R.E. 611(a), which gives the trial court reasonable control of the mode of interrogating witnesses. See State v. Cooper, 10 N.J. 532, 564-65 (1952) (noting trial court properly exercised its discretion in refusing to allow recross examination); Amaru v. Stratton, 209 N.J. Super. 1, 12-13 (App. Div. 1985) (same); Wimberly v. Paterson, 75 N.J. Super. 584, 610 (App. Div.) (approving trial court discretion to define the scope of redirect examination), certif. denied, 38 N.J. 340 (1962), overruled on other grounds by Johnson v. Dobrosky, 187 N.J. 594, 609 n.7 (2006); Schwartau v. Miesmer, 50 N.J. Super. 399, 410, 413 (App. Div.) (permitting re-cross examination of witness to correct prior testimony), certif. denied, 28 N.J. 34 (1958); and see Brambley v. McGrath, 347 N.J. Super. 1, 8 (App. Div. 2002) (noting purpose of redirect examination is to respond to new information elicited during cross-examination).
Defendant correctly argues that his right to confrontation includes the right to cross-examine witnesses produced by the State. None of the cases cited by defendant, however, discuss a right to engage in recross-examination of a witness. Rather, each case discussed by defendant involves a limitation of the initial cross-examination of a State's witness. See, e.g., State v. Castagna, 187 N.J. 293, 312 (2006) (limitation placed on the defendant's right to cross-examine adverse witness concerning the witness's polygraph results did not violate the defendant's right to confrontation); State v. Budis, 125 N.J. 519, 532, 541 (1991) (trial court restriction of a defendant's ability to cross-examine child sexual assault victim violated the defendant's right to confrontation).
Further, defendant cites no instance in which he requested a further opportunity to examine a witness and the judge denied the request. Indeed, the judge stated that he allows re-cross examination once or twice in virtually every trial. Based on this record, we discern no error in the management of this trial.
Defendant argues that the trial judge should have granted a mistrial when Mrs. Young testified that she had been sexually assaulted by one of the intruders. The State argues that the trial judge took appropriate measures to mitigate the effect of this testimony to assure a fair trial.
Prior to trial, the judge ordered the prosecutor to instruct Mrs. Young not to refer during her testimony to the sexual assault she alleged occurred during the robbery. During cross-examination, defense counsel provided Mrs. Young with a copy of her statement to police. He requested she review it and focused her attention on a particular portion of the statement. It is apparent his direction was an attempt to prevent any reference to the sexual assault allegation. Despite his efforts, Mrs. Young read aloud the portion of the statement in which she stated that she performed oral sex on Parker after he threatened her life. Later, in response to a question about the color of her assailant's pants, she stated that she did not know if she touched his pants when she performed oral sex.
The following morning, defendant moved for a mistrial. The trial judge denied the motion and decided to deliver a limiting instruction later in the trial to avoid underscoring the remarks so soon after Mrs. Young's testimony. In his decision on the mistrial motion, the judge noted that Mrs. Young's two references to the sexual assault were not the only references to that event. During jury voir dire, prospective jurors were alerted to the possibility that there would be references to such an event. They were asked if the possibility of such testimony would influence their ability to fairly evaluate the evidence. The jury also heard from several witnesses that a sexual assault had occurred. For example, Detective Webb testified that defendant told her in his interview that "he didn't want to go down for a sexual assault." The judge also forcefully informed the jury that defendant was not charged with sexual assault. He further informed the jury that he had allowed limited testimony about the alleged sexual assault in order to allow the jury to determine whether the statement given by defendant was voluntary.
In determining whether prejudicial testimony has been eradicated by a trial court's curative or limiting instruction or whether it is so harmful that it cannot be eliminated except by declaring a mistrial, the burden is on the state to prove no possible injury to defendant. State v. Samurine, 47 N.J. Super. 172, 181 (App. Div. 1957), rev'd in part on other grounds, 27 N.J. 322 (1958). The criterion is not whether the evidence, stripped of the wrongful testimony, is sufficient to support a conviction, but rather whether the prejudicial remarks, viewed within the context of the case, may have possibly affected the jury's deliberations. Id. at 181-82. All doubts must be resolved in favor of the defendant. Id. at 182.
Here, we are satisfied that Mrs. Young's references to the sexual assault by Parker did not deprive defendant of a fair trial. The jury knew from the beginning of the trial that there might be some evidence of a sexual assault. Moreover, the record strongly suggests that Mrs. Young became confused during cross-examination or simply misunderstood the questions posed by defense counsel. The judge forcefully informed the jury that defendant was not charged with that offense and that the jury could consider it only in the context of defendant's claim that his inculpatory statement was not voluntarily given. We must assume that the jury understood and followed this instruction. State v. Manley, 54 N.J. 259, 270-71 (1969); State v. Pleasant, 313 N.J. Super. 325, 335 (App. Div. 1998), aff'd, 158 N.J. 149 (1999).
Finally, it is unlikely Mrs. Young's testimony caused prejudice to defendant that the judge's timely curative and final instructions did not assuage. The State marshalled overwhelming evidence of defendant's participation in the robbery and assaults of the Youngs.
During her cross-examination, in response to a series of questions about whether there were two or three intruders, Mrs. Young stated that defendant was one of the men who had entered her home. This was the first and only time the victim identified defendant as one of the intruders. Defendant argues that the prosecutor withheld critical information that denied him a fair trial and requires a new trial.
The police report recorded that Mrs. Young stated that two men entered her home. At trial, she testified that three men were in her home. Defense counsel asked her to review the police report and confirm that the report differed from her testimony. She admitted the discrepancy and then stated, "[a]nd this gentlemen, here, he had that real curly hair, and it stuck out, some of it came out of the cap." She then testified that defendant had changed his hair from the night of the intrusion and she noticed the change as soon as she entered the courtroom. Defendant argues that the State withheld evidence from him and denied his right to discovery.
Defendant did not object to this in-court identification; he made no motion for a mistrial or any other relief. We, therefore, must determine whether the prosecutor erred and, if so, whether that error rises to the level of plain error. R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). Defendant correctly argues that he enjoys a constitutionally protected due process right to request and obtain from the prosecution evidence that is either material to his guilt or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed. 2d 215, 218 (1963); State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.), certif. denied, 101 N.J. 335 (1985). To that end, courts have identified three factors on which to focus in determining whether a discovery violation leads to a denial of a defendant's due process rights:
(1) [W]hether there was bad faith or connivance on the part of the government, State v. Serret, 198 N.J. Super. 21, 26 (App. Div. 1984)[, certif. denied, 101 N.J. 217 (1985)]; State v. Washington, 165 N.J. Super. 149, 155 ([App. Div.] 1979); (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense, [California v. ]Trombetta,  U.S. [479, 488-89], 104 S.Ct. [2528,] at 2534, 81 L.Ed. 2d [413,] at 422 [(1984)]; State v. Serret, supra, 198 N.J. Super. at 27; [and] (3) whether defendant was prejudiced by the loss or destruction of the evidence, State v. Serret, supra, 198 N.J. Super. at 27; State v. Washington, [supra,] 165 N.J. Super. at 155. [Hollander, supra, 201 N.J. Super. at 479.]
These factors are applied, however, only when there has been suppression, loss, or destruction of physical evidence by the prosecution in a criminal trial. Ibid. Absent bad faith, relief is granted only where there is a showing of manifest prejudice or harm arising from the failure to preserve the evidence. George v. City of Newark, 384 N.J. Super. 232, 243-44 (App. Div 2006); State v. Dreher, 302 N.J. Super. 408, 489 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed. 2d 723 (1998), overruled on other grounds by State v. Brown, 190 N.J. 144, 159 n.1 (2007).
Undoubtedly, a prior statement, oral or written, in which the victim identifies a defendant as a person involved in the episode that forms the basis of the prosecution is material information that should be provided to a defendant. Furthermore, the prosecutor has an obligation to make available to defendant all physical and documentary evidence, including statements by the victim. R. 3:13-3(c)(6) and (7). Here, however, there is nothing in the record that suggests that there was a prior statement, oral or written, of the victim in which she identified defendant as one of the men in her home. In fact, the record indicates that Mrs. Young's reference to defendant and his distinctively curly hair was a surprise to everyone. Mrs. Young admitted that she never provided a physical description of defendant to police or the prosecutor at any time prior to trial. She explained that she never told anyone that she observed curly hair under a stocking because "I wasn't asked."
Notably, defendant relies on cases where the State possessed actual knowledge of material information that was willfully suppressed, lost or destroyed. That is not this case. Therefore, we find no error, much less plain error.
During the prosecutor's summation, she urged the jury to reject defendant's contention that the two-dollar bills found in his possession were change given to him by a drug dealer when he purchased some marijuana. In doing so, the prosecutor advised the jury that drug dealers normally carry $10 and $5 bills. Defendant argues that this extra-record information deprived him of a fair trial and requires a reversal. We hold that the prosecutor improperly introduced extra-record information in her summation but the error did not deprive defendant of a fair trial.
Generally, attorneys are afforded broad latitude in summations. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001); Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div.), certif. denied, 163 N.J. 395 (2000). Thus, "counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd . . . ." Colucci, supra, 326 N.J. Super. 177. The broad leeway, however, is qualified by the requirement that the comments on the evidence "must be based in truth, and counsel may not 'misstate the evidence nor distort the factual picture.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci, supra, 326 N.J. Super. at 177).
In assessing whether a prosecutor's remarks during summation require reversal of a defendant's conviction, an appellate court must determine whether "the prosecutor's conduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). As such, the court should look at such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remark stricken, and whether the judge instructed the jury to disregard it. Ramseur, supra, 106 N.J. at 322-23.
During her summation the prosecutor reminded the jury that defendant stated that the two-dollar bills found in his pocket upon arrest were change given to him by a drug dealer after he purchased marijuana:
PROSECUTOR: Now, the first statement that Keith Kenion gives to the police is given at about 5:30, 5:35 when he's read his rights the first time by Detective Negron, and O'Neill was present and witnessed the Miranda warnings.
At that point in time, he's like, "I wasn't around. I don't know anything about a robbery." And the detective in this room was like, "Well, what about the 38 $2 bills you had on your person?" "Oh, that. I bought four dimes of marijuana. I bought so many bags of marijuana, and the drug dealer gave me $2 bills."
That's -- normally, they carry tens and twenties, but I guess nowadays they're carrying twos, "And the drug dealer gave me the twos in change. And then I went to the Wawa and I bought some stuff, and then the clerk in Wawa gave me the rest. There was about $20 worth of $2 bills." So that's his explanation.
Following the State's summation, defendant raised several objections. As to the discussion of the two-dollar bills, the judge noted that the prosecutor fashioned her argument on facts not based on any evidence adduced during the trial. "Frankly," he said, "it's you testifying in a closing." Judge Farrell denied defendant's motion for a mistrial, and issued a curative instruction to the jury. Regarding the two-dollar bill reference, he informed the jury:
During her closing, [the assistant prosecutor] made some comment regarding the types of bills that drug dealers use in making change. I instruct you that there is no testimony or evidence in the case relating to that fact and you should, therefore, disregard it.
The decision to grant a mistrial or to provide the jury with a curative instruction is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall [trial] setting." State v. Winter, 96 N.J. 640, 646-47 (1984). The adequacy of such instruction necessarily focuses upon the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached. Id. at 647.
Nothing in the record suggests that Judge Farrell's curative instruction was ineffective. The jury did not question the charge, which suggests that it was not confusing or misleading, and that it was well-understood. Jurors are deemed capable of following instructions given to them by the trial judge. Pleasant, supra, 313 N.J. Super. at 335 (citing Manley, supra, 54 N.J. at 270-71; State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998)). Moreover, because defendant failed to object to the curative instruction, we must be satisfied that this error was "clearly capable of producing an unjust result." R. 2:10-2. That is not so in this case where the evidence presented by the State against defendant was simply overwhelming.
Defendant also contends that the instruction provided to the jury on accomplice liability was inadequate because the judge failed to mold the instruction to the facts of the case and failed to adequately explain accomplice liability and the lesser-included charges. He also argues that the judge should have informed the jury that co-defendant Palmer's guilty plea could not be considered as evidence of defendant's guilt.
We review the instructions provided to the jury as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). When we do so, we are satisfied that the judge constructed a jury charge that fully and fairly apprised the jury of the law governing the charged offenses as those charges pertained to the unique facts of this case. The accomplice liability charge clearly stated that the jury must be satisfied that defendant shared the same mental state as the principal actor, if it found that defendant acted as an accomplice rather than a principal. The charge fully complied with the rule announced in State v. Savage, 172 N.J. 374, 388-89 (2002) and State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993). Of greater significance, the State charged defendant as a principal not an accomplice.
Furthermore, the judge provided extensive guidance to the jury on the issue of co-defendant Palmer's guilty plea. As required by State v. Adams, 194 N.J. 186, 207-08 (2008), the judge informed the jury that it must scrutinize Palmer's testimony in light of his specific interest in the proceeding, that Palmer's guilty plea may only be utilized in its consideration of his credibility and may not be utilized as substantive evidence of defendant's guilt. Finally, the charge delivered by the trial judge did not bolster co-defendant's credibility as occurred in State v. Murphy, 376 N.J. Super. 114, 123 (App. Div. 2005).
Defendant's arguments that the record does not contain substantial credible evidence that he voluntarily, intelligently and knowingly waived his Miranda*fn8 rights and that the police lacked probable cause to arrest him (Points II and III of counsel's brief and Points I and II of defendant's pro se supplemental brief) are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Judge Farrell granted the State's motion for an extended term and sentenced defendant on Count Three, the kidnapping of Mr. Young, to an extended life term in prison subject to the 85% NERA parole ineligibility term. Although defendant concedes that he has the requisite prior convictions to qualify for imposition of an extended term as a persistent offender, N.J.S.A. 2C:44-3a, he argues that the record does not support the judge's finding that imposition of an extended term is required to protect the public.
In State v. Pierce, 188 N.J. 155, 166-68 (2006), the Court held that the second step of the State v. Dunbar, 108 N.J. 80 (1987), analysis, protection of the public, does not fit within the prior conviction exception of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), because it involves assessments and evaluations that go beyond the objective facts of a defendant's criminal record. Therefore, need to protect the public is not a precondition to a defendant's eligibility for imposition of an extended term. Pierce, supra, 188 N.J. at 170. Instead, once the court finds that the statutory eligibility requirements for an extended term sentence are met, the range of sentences "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. The Court also announced that this rule shall have pipeline retroactivity. Id. at 173-74. Here, defendant, represented by knowledgeable counsel, has not sought a remand for reconsideration of his sentence.
In consideration of the State's application for an extended term, Judge Farrell employed the four-step analysis required by Dunbar, supra:
First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. [Fourth], it must determine whether to impose a period of parole ineligibility. [108 N.J. at 89.]
As to the second step, protection of the public, the judge stated that he believed the public interest required an extended term due to the types of offenses, the time frames, and the escalation of his conduct from drug offenses, breaking and entry, and weapons offenses to robbery and kidnapping of two elderly, infirm persons in their home. He described the crime as "totally unprovoked" and "brutal" with continuing physical and emotional effects on Mr. Young.
Although we do not disagree with this assessment, the second prong informs the base term rather than the threshold issue of whether a discretionary extended term should be imposed. Although not raised by counsel, we hesitate to overlook the issue when the Court has found constitutionally infirm the use of the second prong of the Dunbar analysis as a determinant of whether a discretionary extended term should be imposed. We, therefore, remand for resentence. To the extent that the life term previously imposed is a product of the statutory prescription of a presumptive base term of life for first degree kidnapping, N.J.S.A. 2C:44-1f(a), the judge should be mindful of the questionable continuing validity of this presumptive term. See State v. Natale, 184 N.J. 458, 487-88 (2005).
Defendant also challenges the aggravating factors found by Judge Farrell. The balance of the analysis of the aggravating and mitigating factors is unremarkable. The record reveals the keen awareness of the judge that reference to aggravating factors one, two, and twelve might involve the double counting condemned in State v. Jarbath, 114 N.J. 394, 404 (1989). When the harm caused to a victim is more than minimally required to meet the grading requirements of an offense and when the indignities imposed on the victim are egregious, the additional injuries and the enhanced circumstances may be considered as aggravating circumstances. State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992).
Affirmed; remanded for resentencing.