July 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-04-0454.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2009
Before Judges Lisa and Sapp-Peterson.
Defendant appeals his conviction, following a jury trial and the sentence imposed, for second-degree robbery, N.J.S.A. 2C:15-1(a)(1) and/or (2) and 2C:2-6; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) and 2C:2-6. He was acquitted of first-degree robbery and resisting arrest. Defendant received an aggregate thirteen-year sentence that included imposition of a consecutive sentence and a six-year, eight-month period of parole ineligibility. We affirm.
These are the relevant facts presented to the jury at trial. On November 22, 2006, at 1:49 a.m., Felix Briceno (Briceno) was dropped off at the corner of 18th Street and Park Avenue in Paterson by a friend after working his shift at Toys "R" Us in Flanders. Once dropped off, Briceno intended to purchase wine from a liquor store located within a block of his residence. He planned to celebrate his promotion at work. The liquor store, however, was closed. As he headed in the direction of his home, a hooded man approached and pointed a gun at him. At that point, Briceno was half a block away from his home. The hooded man pointed the pistol at Briceno's head and asked Briceno for his money and cell phone. Two other men approached Briceno. One of the men went through Briceno's pockets. Briceno saw the face of the man who pointed the gun at him. He later described that man to police as having a dark complexion. The men took Briceno's wallet, which contained his money, driver's license and credit card.
As a car approached with its headlights pointed at the robbers, they fled the scene. The robbers ran to the corner of the street and turned right. Approximately one minute later, Briceno observed a police cruiser coming down the street. He flagged the cruiser down, provided a description of his assailants, and pointed in the direction to which they fled. Briceno entered the police cruiser to accompany the police around the area in an effort to locate the suspects. Police also broadcast the robbery over the police radio for other units to be on the lookout for the perpetrators.
Officer Paul Miccinilli and his partner, Detective Tim Tabor, received the dispatch and responded to the area of 16th Avenue and Rosa Parks Boulevard. Based upon his prior experience apprehending suspects hiding in backyards and under cars, he started checking these areas. He saw defendant lying facedown on the ground with his hands underneath him in the backyard of 198-200 16th Avenue. Defendant matched the description broadcast to police, so he was placed under arrest. He struggled with police at that point, but with the assistance of another officer, Miccinilli was able to complete the arrest.
At the time of his arrest, defendant was wearing a "big black" jacket. Police recovered a nine millimeter gun with a defaced serial number from the right front pocket of the jacket. They also recovered Briceno's driver's license and credit card from the left front pocket of the jacket.
Following defendant's arrest, police drove Briceno to the area where defendant was being detained and asked him to look at the detained person and state whether the man was one of the men who robbed him. Briceno, without leaving the police cruiser, identified defendant as the man who pointed the gun at him.
Defendant testified and denied any involvement in the robbery. He claimed that he was robbed by three hooded individuals on November 22. Defendant testified that the men who robbed him forced him into an alley and beat him. He hid until the police found him and arrested him for robbery. Defendant claims the police planted the jacket, gun and other evidence on him.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A WADE*fn1 HEARING TO DETERMINE THE ADMISSIBILITY OF THE OUT-OF- COURT IDENTIFICATION OF DEFENDANT PURSUANT TO A SHOWUP PROCEDURE AT THE SCENE OF ARREST, PARTICULARLY SINCE THE VICTIM WAS UNABLE TO MAKE AN IN-COURT IDENTIFICATION AND THERE WERE NO INDEPENDENT GROUNDS FOR THE IDENTIFICATION.
THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW).
THE FAILURE OF THE TRIAL JUDGE TO INSTRUCT THE JURY WITH THE MODEL CHARGE ON CROSS-RACIAL IDENTIFICATION WHERE IDENTIFICATION WAS THE KEY ISSUE IN THE CASE AND THERE WAS INADEQUATE CORROBORATION OR OTHER EYEWITNESS ACCOUNT CONSTITUTED PLAIN ERROR. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO MERGE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO THE SUBSTANTIVE THEFT OFFENSE INCLUDED WITHIN THE ROBBERY COUNT.
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF THE CHARGES IN COUNTS TWO AND SIX, AND THE TRIAL JUDGE ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR NEW TRIAL.
IMPOSITION OF A CONSECUTIVE SENTENCE ON COUNT III WAS MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant raises the following points for our consideration:
THE TRIAL JUDGE ERRED WHEN INSTRUCTING THAT THE BURDEN OF PROOF WAS ON THE DEFENDANT, AS OPPOSED TO THE STATE WHEN CHARGING THE JURY ON THE POSSESSIN OF A WEAPON FOR UNLAWFUL PURPOSE, THEREBY DEPRIVING DEFENDANT OF HIS DUE-PROCESS RIGHT TO A FAIR TRIAL, UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTION.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
Defendant argues that the trial court erred in not granting defendant's motion for a Wade hearing to determine the admissibility of the out-of-court identification of defendant pursuant to a showup procedure at the scene of arrest. The State urges that the trial court properly denied defendant's request for a pretrial hearing after defendant failed to make a threshold showing of an "impermissibly suggestive" identification.
In State v. Herrera, 187 N.J. 493, 504 (2006), the Court stated that one-on-one showups are "inherently suggestive" because there is only one person from whom the victim can make an identification, and generally that person is in police custody. Nonetheless, the Court recognized that in some circumstances, on-or-near-the-scene identifications "'are likely to be accurate, taking place, as they do, before memory has faded [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Ibid. (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)). In Herrera, although the defendant was identified while he sat handcuffed in the back of a police vehicle, the Court found that this inherently suggestive identification "did not render the identification procedure per se improper and unconstitutional." Id. at 505 (citing State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003)). The Court reached this conclusion because there was additional corroborative evidence that enhanced the reliability of the identification. Id. at 505-06. Consequently, a one-on-one showup procedure is not "impermissibly suggestive" per se. Rather, impermissible suggestiveness requires courts to engage in a fact sensitive evaluation based upon the totality of the circumstances with consideration of such factors as "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 140, 154 (1997). Where these and any other relevant factors have been considered and a court is convinced that the identification is reliable, the outof-court identification should be admitted into evidence. State v. Adams, 194 N.J. 186, 204 (2008) (citing Herrera, supra, 187 N.J. at 503-04)).
Here, within a minute after the three robbers fled the scene, Briceno flagged down a police cruiser that was in the area and gave police a description of his assailants and showed them the direction towards which his assailants fled. Less than ten minutes later, police discovered defendant lying facedown in a backyard in an area where Briceno directed police. Moreover, within a minute after defendant was cuffed, Briceno arrived with police and positively identified defendant as one of the robbers.
In our view, the one-on-one showup here was inherently suggestive but not impermissibly suggestive. There were additional factors that enhanced the reliability of Briceno's out-of-court identification. Specifically, defendant was apprehended in the vicinity where Briceno was robbed. He was also apprehended within ten minutes after the robbery. At the time he was apprehended, police recovered a gun from him, as well as Briceno's driver's license and credit card. Without telling Briceno that these items were recovered from defendant, Briceno made a positive identification of defendant as one of the robbers. Under these circumstances, we do not find the trial court erred when it determined defendant failed to make the requisite threshold showing entitling him to a Wade hearing.
The denial of a Wade hearing does not translate into a corresponding denial of a jury instruction on identification or cross-racial identification, if identification is a key issue. See State v. Cotto, 182 N.J. 316, 325 (2005) (holding that "[w]hen identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." (quoting State v. Green, 86 N.J. 281, 291 (1981))). See also State v. Cromedy, 158 N.J. 112, 132 (1999) (holding that cross-racial identification is a subset of eyewitness identification requiring a special jury instruction.) Defendant did not request any jury instruction on identification, nor object to its omission at trial. Therefore, the court's failure to give these special instructions requires reversal only if their omission constituted plain error. See State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005). "The determination of [whether the omission of these instructions constitutes] plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." Cotto, supra, 182 N.J. at 326. The corroborative evidence the State presented here was strong. Defendant was found in an area where Briceno told police the robbers had fled. Defendant was found in possession of a gun, as well as Briceno's driver's license and credit card. In view of this compelling corroborative evidence, we are unable to conclude that the trial court's failure to give these special jury instructions on identification testimony and cross-racial identification constituted plain error.
We address one further point reflected in the record relevant to whether the failure to charge the jury on cross-racial identification was plain error. Defendant is described in the record as a black male, while Briceno is described as Hispanic. Hispanic is an ethnic rather than a racial identifier. See State v. Romero, 191 N.J. 59, 68 (2007), (noting "[e]thnicity generally, and 'Hispanic ethnicity' specifically, is accepted as different from race"). The Court in Romero observed that in the interest of due process, "there is insufficient data to support the conclusion that people of the same race but different ethnicity, specifically Hispanic ethnicity, require a Cromedy instruction whenever they are identified by someone of a different ethnicity." Id. at 71-72.
In the absence of proof in the record that Briceno was of a different race than defendant, we are further persuaded the court's failure, sua sponte, to give a jury instruction on cross-racial identification did not constitute plain error. R. 2:10-2.
Although convicted of second-degree robbery, defendant was indicted for armed robbery. N.J.S.A. 2C:15-1. Defendant contends that the trial court erred in failing to merge defendant's conviction for possession of a weapon for an unlawful purpose into the substantive theft offense included within the robbery count. The State urges that defendant's conviction for possession of a weapon for an unlawful purpose does not merge into his second-degree robbery conviction.
N.J.S.A. 2C:1-8 provides:
Conviction of included offense permitted. A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged.
Pursuant to N.J.S.A. 2C:15-1(a)(2), "a person is guilty of [second-degree] robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury."
Possession of a handgun for an unlawful purpose is defined as "[a]ny person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." N.J.S.A. 2C:39-4(a)(1).
Proof of possession of a weapon for an unlawful purpose is not an element of second-degree robbery. N.J.S.A. 2C:39-4(a). Second-degree robbery is not "established by proof of the same or less than all the facts required" to prove the commission of possession of a weapon for an unlawful purpose. N.J.S.A. 2C:1-8. Hence, the weapon's offense does not merge into the second-degree robbery.
Defendant next contends that the evidence was insufficient to convict him of possession of a weapon for an unlawful purpose and aggravated assault. Defendant's new trial motion filed prior to sentencing urged the trial court that the jury's verdicts on the weapons offenses were inconsistent with its acquittal of defendant on the armed robbery charge. The trial court rejected this argument and we do as well.
It is well settled that "an inconsistent verdict in a criminal trial is not a basis to set aside a jury's determination of guilt." State v. Pleasant, 313 N.J. Super. 325, 336 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). As long as each of the verdicts, albeit inconsistent, were supported by sufficient evidence in the record, the jury's verdict should not be reversed, irrespective of the jury's findings on other counts. The evidence clearly supports defendant's robbery of Briceno, his unlawful possession of a handgun, and his pointing the gun at Briceno. Courts are urged not to "attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty." State v. Muhammad, 182 N.J. 551, 578 (2005). We adhere to that admonishment here.
The remaining points raised on behalf of defendant and by the defendant in his supplemental brief that the imposition of a five-year custodial sentence on the unlawful possession of a weapon conviction, consecutive to the sentence imposed on the robbery conviction, was manifestly excessive, and the court erred when charging the jury on the burden of proof, are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
Defendant argues that because he must serve eighty-five percent of the sentence on the robbery count, which was above the mid-range, imposition of a consecutive term on the unlawful possession of a weapon conviction was manifestly excessive. The Supreme Court has emphasized:
The imposition of an appropriate sentence is entrusted to the sound discretion of the sentencing judge. Thus, the scope of appellate review is normally limited to the question of whether that discretion has been abused by the imposition of a sentence which is manifestly excessive under the particular circumstances of the case.
[State v. Leggeadrini, 75 N.J. 150, 156-57 (1977) (citations omitted)].
Generally, an appellate court will not revise a sentence that is within the statutory limits in the absence of a clear showing of abuse of discretion. State v. Tyson, 43 N.J. 411, 417 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed. 2d 279 (1965) (citing State v. Benes, 16 N.J. 389, 396 (1954)).
Here, the trial judge properly exercised his discretion in sentencing defendant. The record reads:
However, again and I'll state this with respect to Count 2 also, the aggravating factors substantially outweigh the mitigating factors. And on Count 3 of Indictment 07-04-454 you are sentenced to the custody of the Commissioner of the Department of Corrections for a term of 5 years where you shall remain until released in accordance with the law.
This sentence will run consecutive to the sentence imposed on Counts 1 and 2. And I'll indicate for the record pursuant to State v. Yarbough, 100 N.J. 627 [(1985)], and State v. Car[e]y,  N.J. 413 [(2001)], that this crime . . . meets the criteria for a consecutive sentence in that this crime is predominantly independent from the offenses . . . for which you were sentenced on Counts 1 and 2 of this indictment. It is indicated thereon there are no free crimes.
The sentencing record here does not reveal a sentence imposed that was manifestly excessive under the totality of the relevant circumstances. See State v. Megargel, 143 N.J. 484, 494, 504 (1996).
Finally, in his pro se "letter brief in lieu of a more formal brief," defendant contends the court committed reversible error when it stated defendant bore the burden of proof on the possession of a weapon for an unlawful purpose charge. Because this claimed error was not raised before the trial court, we review it under the plain error standard. R. 2:10-2.
We agree that the court misspoke as to the burden of proof when instructing the jury on that offense. Nonetheless, a review of the entire jury instruction, as we are required to do, State v. Brown, 190 N.J. 144, 160 (2007), persuades us that the inadvertent, singular reference to defendant bearing the burden of proof in part of the court's instruction on this offense did not have a clear capacity to bring about an unjust result. This is so for two reasons. First, as the judge commenced his instruction of this offense, he began by instructing the jury that the "State has the burden of proving beyond a reasonable doubt each of the following four elements of the crime." Second, at the outset of the court's instruction to the jury, the court instructed the jury that defendant "has pleaded not guilty to the charges" and:
The defendant on trial is presumed to be innocent and unless each and every essential element of an offense charged is proved beyond a reasonable doubt the defendant must be found not guilty of that charge.
The burden of proving each element of a charge beyond a reasonable doubt rests upon the State and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or offer any proof relating to his innocence.
The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The State has the burden of proving the defendant . . . guilty beyond a reasonable doubt.
We conclude that the jury was not confused or misled by this obviously inadvertent and isolated mistake on the trial judge's part.