July 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EARL SMITH, A/K/A BEN WATKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. I-96-07-2385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2009
Before Judges Wefing, Parker and Yannotti.
Following an eight-day trial, a jury convicted defendant in 1998 of conspiracy to commit robbery, a crime of the second degree, N.J.S.A. 2C:5-2; two counts of robbery while armed, a crime of the first degree, N.J.S.A. 2C:15-1; one count of aggravated assault involving serious bodily injury, a crime of the second degree, N.J.S.A. 2C:12-1(b)(1); two counts of possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4(a); and two counts of unlawful possession of a weapon, a crime of the third degree, N.J.S.A. 2C:39-5(b). It found defendant not guilty of one count of aggravated assault.
Defendant absconded prior to sentencing and was not apprehended until 2003 and sentenced in 2004. The trial court merged the convictions for conspiracy, aggravated assault and possession of a weapon for an unlawful purpose into the robbery convictions and imposed two concurrent sixteen-year terms for the two robbery convictions, each with a six-year period of parole ineligibility. It also sentenced defendant to two five-year terms for unlawful possession of a weapon, one consecutive to the robbery sentence and one concurrent. The aggregate term was thus sixteen years in prison, with a six-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
Defendant's convictions rest upon an incident which occurred on February 15, 1996, at a pharmacy located at 278 Park Avenue in Newark. Two men were working at the pharmacy just after it opened, Theophilus Olaokpo, the pharmacist in charge, and Raphael Nwankwo, who owned the business. Three men entered the pharmacy and headed toward the prescription area; two were carrying guns and the third a bag, presumably to carry the robbery proceeds. Nwankwo testified that one of the men put a gun to his head and demanded that he open the safe. When Nwankwo said he had no money, the man punched him. Nwankwo offered the cash in the register but the man declined, insisting on the safe. Olaokpo also offered the men the money in the cash register and his wallet but the men continued to insist they wanted the safe. Olaokpo managed to hit the alarm button under the cash register. Ordinarily a silent alarm, it sounded in the store and the men ran out. Before leaving, one turned and fired his gun at Nwankwo. The bullet struck Nwankwo in the penis.
Witnesses told the police that they saw an older model black or brown Cadillac leaving the scene of the robbery. Police investigation led them to the owner of the car, Grant Fluker, Jr. Fluker, who originally faced the same charges as did defendant, testified at defendant's trial pursuant to a plea bargain he had negotiated. He said that three men came to his apartment that morning, wanting to borrow his car. Fluker said he refused their request until one of the three produced a gun and insisted that Fluker drive them. He agreed to do so. Fluker said he drove to the scene and remained in the car until the three men returned. One of them gave him twenty dollars. Fluker identified the three men as Leslie Duncan, Norris Williams and defendant. As did Fluker, co-defendant Duncan also negotiated a plea bargain and testified at defendant's trial.
Detective George Mendez of the Newark Police Department interviewed defendant on March 26, 1996, after advising him of his Miranda rights and defendant signing a written waiver. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant told Detective Mendez that Williams had told him that the pharmacy kept "one hundred grand" in a safe; defendant and Williams met up with Duncan, who told them he could secure a car. Defendant said they persuaded this fourth person to come along by putting a gun to his head. Defendant said they took money from the cash register and fled when the alarm went off. He told Detective Mendez that his gun accidentally discharged as he hit a shelf while he was running from the store.
Defendant raises the following issues on appeal.
DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT.
THE DEFENDANT'S RIGHTS UNDER THE CONFRONTATION CLAUSE WERE VIOLATED BY THE ADMISSION OF A POLICE OFFICER'S HEARSAY TESTIMONY THAT HE HAD ARRESTED DEFENDANT AFTER RECEIVING INFORMATION FROM AN OUTSIDE LAW ENFORCEMENT AGENCY. (Not Raised Below)
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY THE CO-DEFENDANT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY FAILING TO INSTRUCT THE JURY THAT AN ACCOMPLICE MAY INTEND TO COMMIT A LOWER-DEGREE OFFENSE THAN THE MAIN ACTOR. (Not Raised Below)
THE COURT ABUSED ITS DISCRETION IN IMPOSING SIXTEEN-YEAR TERMS ON THE ROBBERIES AND FIVE-YEAR TERMS ON THE WEAPONS OFFENSES. POINT SIX THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ROBBERY AND UNLAWFUL POSSESSION OF A WEAPONS CONVICTION IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005). (Not Raised Below)
The trial court conducted a pre-trial hearing to determine whether the statement defendant gave to Detective Mendez would be admissible at his trial. This hearing spanned several days and included testimony from several witnesses, including defendant.
The first witness at the Miranda hearing was Detective Mendez. Mendez said he first knew of defendant's involvement in the robbery through Fluker. He did not question defendant, however, until March 26, 1996, when he received a telephone call from Lieutenant Zeiser, a member of an FBI task force.*fn1 Zeiser told Mendez that defendant was being held at the Newark headquarters of the FBI and that Mendez could come there to question him. Zeiser also told Mendez that a confidential informant had provided information to the FBI about defendant's involvement in this robbery. Mendez did not inquire why the task force was holding defendant.
Mendez went to FBI headquarters to question defendant. Zeiser was present, as was Police Officer Michael Gillens. Mendez testified that before he asked any questions of defendant, he told defendant that he was a suspect in the pharmacy robbery. He informed defendant of his Miranda rights, both verbally and in writing. Defendant acknowledged he understood those rights and signed a card waiving them. Lt. Zeiser witnessed the written waiver. Mendez testified that defendant did not appear to be impaired in any way and understood his rights. Mendez said defendant never gave any indication that he wanted to stop answering questions or that he wanted an attorney to be present. Nor did defendant give any indication to Mendez that he had consulted with an attorney about this matter before Mendez questioned him. Mendez testified that he asked defendant whether he wanted an attorney but did not ask him whether he already had an attorney. Mendez was not aware at the time of this questioning that defendant had been indicted for another robbery under the name Ben Watkins. He also said he never threatened defendant.
After defendant executed the written waiver of rights, Mendez proceeded to question him. Mendez typed defendant's response to his questions. This interrogation lasted fifty-seven minutes. We have earlier in this opinion summarized the essence of defendant's statement to Detective Mendez.
Defendant's version of what occurred at FBI headquarters on March 26 differed significantly from the testimony of Mendez and Zeiser. Defendant said he was arrested that day by the FBI for outstanding parole violations. He said that when he was arrested, he was told that Fluker had already inculpated him in the pharmacy robbery. He said that he was placed in a room and handcuffed to a chair and that Zeiser never left the room. He maintained that a number of officers came in and out of the room, asking him about the Park Avenue robbery and who was his attorney in the Ben Watkins matter. Defendant said that his response was that he did not want to make any statement and wanted to see his attorney. He said that Lt. Zeiser told him he should cooperate and that if he could turn in someone with guns, he would be back on the street. He also said that an individual identified only as "Malik" told him the same thing.
Defendant said he was threatened during this process and was scared. He said he was told that if he did not cooperate he would get a long sentence, including time in federal prison. He said that although he had been questioned before, he had never been badgered in such a manner. He testified that he continued to ask to see his lawyer, but his requests were ignored.
Defendant said this continued for approximately one and one-half hours until Detective Mendez arrived. He said Mendez also threatened him. He said the statement Mendez identified in his testimony was not accurate, that it contained questions he was not asked and answers he did not give. He estimated that he spent three to four hours at the task force headquarters, handcuffed to the chair and was never asked if he wanted food, water or to use the toilet. He agreed that he never asked for such things.
He also said that Zeiser and Mendez left the room for about fifteen minutes and that when Zeiser returned to the room, he assured defendant that he was doing the right thing and that they would look out for him. Defendant said he signed the statement after receiving those assurances.
Defendant testified that he dropped out of school in the fifth grade but had since earned his GED degree. He agreed he had a prior record, having been convicted of robbery in the early 1980s and had another pending robbery charge. He knew that there was an outstanding warrant for his arrest for a violation of parole.
After testimony concluded at the Miranda hearing, the trial court heard oral argument from the attorneys on the question whether defendant's statement was voluntary and admissible at trial. The trial court placed its oral decision on the record, finding that defendant's arrest on March 26, 1996, was lawful in light of the outstanding arrest warrant for defendant. The trial court also found that there was probable cause to detain and question defendant in connection with the Park Avenue robbery. The trial court found that defendant, contrary to his testimony, had not been threatened and that he had been given his Miranda warnings before he was questioned. The trial court rejected as not credible defendant's assertion that Mendez typed answers defendant had not given. The trial court concluded that the State had met its burden to prove that defendant's statement was voluntary and that there had been no violation of defendant's Miranda rights.
Defendant argues on appeal that the trial court erred in its conclusion. We have reviewed the record of the Miranda hearing, and we are satisfied that all of the trial court's findings have ample support within the record. Those findings are binding upon us on appeal, and we thus affirm the ruling of the trial court that defendant's statement was freely and voluntarily made. State v. Locurto, 157 N.J. 463 (1999).
An appellate court reviewing a trial court's determination with respect to the admissibility of a defendant's statement should not overturn that decision unless it finds that the trial court decision was not based on "sufficient credible evidence." State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div. 2006), aff'd, 190 N.J. 169 (2007) (quoting State v. Knight, 183 N.J. 449, 468 (2005), certif. denied, 189 N.J. 426 (2007)). This court should not weigh the evidence or make conclusions from the evidence and also should not make credibility determinations. Ibid. A trial court's assessments of such factors should only be reversed if it is "clearly mistaken" and justice demands reversal. State v. Elders, 192 N.J. 224, 244 (2007). We have no basis to disregard the findings and conclusions of the trial court on the question whether defendant voluntarily waived his Miranda rights.
Finally, we note for the sake of completeness on this issue that it was not material that defendant was represented by counsel on an unrelated indictment unless defendant made a request to speak to that attorney. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed. 2d 158, 166-67 (1991) (explaining that the Sixth Amendment right to counsel is offense-specific and does not prevent later questioning on an unrelated matter). The trial court, of course, concluded that defendant did not ask to speak to the attorney representing him on the outstanding robbery indictment.
At trial, Detective Mendez testified as to the progress of his investigation into the robbery at the pharmacy. The following colloquy occurred.
Q: What if anything occurred after the 21st?
A: On March 26th, I received a telephone call in from an outside agency, law enforcement agency. They supplied me with information relative to the investigation.
And as a result of that information and investigation I was able to arrest one Earl Smith.
Defendant made no objection to this testimony at the time it was given but now contends it was a violation of his rights under the confrontation clauses of the United States and New Jersey Constitutions. U.S. Const. amend. VI; N.J. Const. art.
I, ¶10. He contends that this testimony was sufficiently prejudicial to satisfy the plain error standard. R. 2:10-2.
In support of his position, defendant relies upon a recent decision of our Supreme Court, State v. Branch, 182 N.J. 338 (2005). In that case, the Court reversed the defendant's burglary conviction because a police officer responded affirmatively to the question whether, based on information received, had he developed a suspect, and thus included defendant's picture in a photo array. Id. at 348. That photo identification was the only evidence linking the defendant to the crime.
The jury only needed to know that the police fairly displayed the photographs to the witnesses and that the process led to a reliable identification. The detective's reasons for including defendant's photograph in the array were not relevant and were highly prejudicial. The detective implied that he had information from an out-of-court source, known only to him, implicating defendant in the burglary. That hearsay was contrary to this State's evidentiary rules and decisional law, and violated the Federal and State Confrontation Clauses. [Id. at 352-53.]
The Supreme Court concluded that because, in its view, "this was a close case," id. at 353, the admission of this testimony "may have tipped the scales" and thus had "the capacity to cause an unjust result." Id. at 354.
While this jury should not have been permitted to hear that Mendez received information from another law enforcement agency linking defendant to this investigation, we are satisfied that in the context of this case, its admission cannot be deemed plain error. Here, as opposed to Branch, supra, the prosecution had substantial evidence against defendant, including the testimony of two of the other participants in the robbery and defendant's own statement in which he admitted his participation although contending his gun discharged accidentally. The brief reference by Detective Mendez provides no basis to reverse these convictions.
Defendant's next two contentions revolve around two portions of the trial court's instructions to the jury. As with the testimony of Detective Mendez that defendant challenges on appeal, there was no objection at trial to the court's charge, and thus defendant must establish that the court's charge constituted plain error. R. 2:10-2.
The Supreme Court has stated that plain error in a court's charge to the jury means "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
The trial court gave the following instruction to the jury on considering the credibility of certain of the witnesses who appeared before it.
You have heard evidence that Raphael Nwankwo, Grant Fluker and Leslie Duncan have previously be[en] convicted of crime.
This testimony may only be used in determining credibility or believability of these witnesses' testimony. A jury has a right to consider whether a person who has previously failed to comply with society's rules, as demonstrated through a criminal conviction would be more likely to ignore the oath requiring truthfulness on the witness stand than any law abiding citizen. You may consider in determining this issue the nature of the prior conviction and when it occurred.
You are not, however, obligated to change your opinion as to the credibility of a witness simply because of a prior conviction. . . .
Now on the subject of credibility of the witnesses, evidence has been introduced to show that Grant Fluker and Leslie Duncan have been previously convicted and are awaiting sentence. In criminal trials, this is when a witness takes the stand to testify, the fact that he has previously been convicted and is awaiting sentence, it is permitted to be placed before you for your consideration, for you to consider and to evaluate this testimony as to specific limited issues of interest, bias, prejudice, or ulterior motives that may have been shown, if any, by that witness.
Grant Fluker and Leslie Duncan have testified to the facts which may show some involvement on these witnesses' part in the criminal situation out of which the indictment and trial of the defendant here have arisen.
The law requires that the testimony of such witness be given careful scrutiny. In weighing this testimony, you may consider whether the witness has a special interest in the outcome of the case and whether this testimony was influenced by hope or expectation of any favorable treatment or reward, or by any feelings of the advantage of reprisal.
If you find this witness to be credible and worthy of belief, you have a right to convict defendant on this testimony alone provided, of course, that upon a consideration of the whole case you are satisfied beyond a reasonable doubt of defendant's guilt.
Defendant contends that this charge was fatally defective because it did not tell the jury that it could not use the guilty pleas of Fluker and Duncan as substantive evidence of his own guilt.
Although a co-defendant's guilty plea may be considered for credibility purposes, it may not be used as substantive evidence of the defendant's guilt. . . . [A] defendant is entitled to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.
In sum, the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt. [Adams, supra, 194 N.J. at 208 (quotations omitted).]
We reject defendant's contention that the trial court's failure to include such a limiting instruction in this portion of its charge constituted plain error. In support of his position, defendant relies upon State v. Stefanelli, 78 N.J. 418 (1979), and State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005). Both cases, however, are distinguishable.
In Stefanelli, the prosecutor argued in his summation that a co-defendant's guilty plea was evidential of defendant's guilt. It was in that context that the Court said that the jury should have been instructed that it could only consider that guilty plea for purposes of credibility. Stefanelli, 78 N.J. at 434. Here, the prosecutor did not make that argument in summation. And, even in Stefanelli, the Court concluded that the absence of such an instruction was not plain error. Id. at 436-37.
In Murphy, supra, we did find that such a limiting instruction was required. 376 N.J. Super. at 122-23. In that case, however, the trial court had included in its instructions the statement that a judge will only accept a guilty plea if he or she is satisfied the individual committed the crime. Id. at 121. Here, the trial court made no such statement in its instructions.
Defendant's next assertion of plain error in the trial court's charge is directed to resolve that portion dealing with accomplice liability. The trial court instructed the jury with respect to accomplice liability in the following manner.
I have got to talk to you about liability for another's conduct. . . . .
"A person is guilty of an offense if it is committed by his own conduct, or the conduct of another person for which he is legally accountable, or both.
A person is legally accountable for the conduct of another person when he is an accomplice of such other person, in the commission of an offense. A person is an accomplice of another person in the commission of an offense, if with the purpose of promoting or facilitating the commission of the offense, he solicits such other person to commit it, or aids, or agrees to, or attempts to aid such other person in planning it or committing it." . . . .
In this case the State alleges that the defendant is equally guilty of the crime also committed by the alleged co-conspirators, because he acted as their accomplice with the purpose that the crimes that he has been charged with were committed. . . . .
In order to convict a defendant as an accomplice, under the specific charge you must find that the defendant had a purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of the substantive crime with which he is charged.
It is not sufficient to prove only that defendant had knowledge that another person was going to commit the crimes charged. The State must prove that it was defendant's conscious object that the specific conduct charged be committed.
Defendant contends that this language was insufficient because it did not make clear to the jury that it could find that although the other participants may have intended to commit robbery while armed, he intended only to commit robbery, and thus it could find him guilty of robbery, as opposed to finding him guilty of robbery while armed. In support of this proposition, defendant relies on State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).
In Bielkiewicz, however, the jury could have inferred from the court's charge that it could not find an accomplice guilty of a lesser offense than the principle. Id. at 531. Here, however, that risk is not present for the jury was told that defendant had to have had the "conscious object that the specific conduct charged be committed."
Defendant's remaining arguments revolve around his sentence. He contends that his sentence is manifestly excessive, that the trial court erred in imposing consecutive sentences and that the matter should be remanded under State v. Natale, 184 N.J. 458 (2005). We agree that the matter must be remanded. The trial court did not give any reasons for its determination that defendant's sentence for unlawful possession of a weapon should be served consecutively to his sentence for first-degree robbery. Further, defendant is entitled to the pipeline retroactivity afforded under Natale. Id. at 494.
Defendant has filed a pro se brief in which he raises the following additional contentions.
THE TRIAL COURT FAILURE TO DISCLOSE EXCULPATORY EVIDENCE WAS PLAIN PREJUDIC[IAL] ERROR, DEPRIVING DEFENDANT OF A FAIR TRIAL VIOLATING DEFENDANT['S] 5TH, 6TH, 9TH, 14TH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION
THE DEFENDANT IS ENTITLED TO A NEW TRIAL ON THE NEWLY DISCOVERED EVIDENCE
THE TRIAL COURT COMMITTED PLAIN ERROR IN INJECTING A RACIAL COMMENT DURING THE JURY SELECTION VIOLATING DEFENDANT['S] RIGHT TO A FAIR TRIAL
THE TRIAL COURT HAD COMMITTED PLAIN ERROR BY ADMITTING THE STATE WITNESS INCONSISTENT STATEMENT WITHOUT A PRELIMINARY HEARING DEPRIVING DEFENDANT OF A FAIR TRIAL
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT[']S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL U.S. CONST. AMENDS. V, VI, XIV, N.J. CONST. (1947) ART. I, PARS. 1, 9, 10
With respect to defendant's first pro se argument, we have reviewed the material to which he points and are satisfied that it does not constitute exculpatory material within the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). Not only is the material itself not exculpatory, it was not within the possession of the prosecution.
With respect to defendant's second pro se argument, the newly-discovered evidence to which he points is that which he addressed in his first argument. The items in question are not material to the question of defendant's guilt or innocence and do not justify a new trial.
With respect to defendant's third pro se argument, he has failed to provide transcripts. We thus decline to address the matter.
Defendant's fourth pro se argument involves an incident which occurred during the testimony of Duncan. At trial, Duncan testified pursuant to his guilty plea. However, confusion developed over what his sentence would be under the guilty plea. From that point forward, Duncan resisted answering questions based on a statement he had previously given to the police.
That statement was never admitted into evidence. At the following day of trial, the confusion was cleared up by Duncan's lawyer, and he cooperated with questioning.
Both defense counsel and the prosecution requested a hearing pursuant to State v. Gross, 121 N.J. 1, 17 (1990), maintaining that the State was attempting to use the prior inconsistent statements of Duncan as substantive evidence rather than just for impeachment purposes. The trial court declined to hold such a hearing. Since defendant objected to the trial judge's refusal to hold a hearing, the standard of review is whether that decision constituted harmful error.
N.J.R.E. 803(a)(1) allows admission of a prior inconsistent statement as substantive evidence. However, in Gross, supra, the New Jersey Supreme Court found that admission of such evidence was only proper after a hearing. 121 N.J. at 17. In Gross, a witness had pled guilty to his role in the murder in question. Id. at 4. His testimony differed from a sworn statement he had given to the police. Id. at 4-6. The witness's statement to the police, different from his testimony, was admitted into evidence. Id. at 6.
Gross is distinguishable. In the present case, Duncan's statement was never admitted into evidence. Furthermore, Duncan was available for cross-examination, and he did end up testifying consistently with his prior statements. He never testified inconsistently; rather he refused to cooperate until he understood the terms of his plea bargain. Given the weight of evidence against defendant at the trial, even if it were error not to hold a Gross hearing, it did not produce an unjust result.
Defendant's final pro se argument is cumulative error. State v. Orecchio, 16 N.J. 125, 129 (1954). Having found no error, however, there can be no cumulative error.
Defendant's convictions are affirmed; the matter is remanded to the trial court for resentencing.