July 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL MARTINEZ, A/K/A ANGEL MARTINEZ CARTAGE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2009
Before Judges Parrillo and Messano.
Defendant Angel Martinez appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree conspiracy to commit robbery and carjacking, N.J.S.A. 2C:5-2, 2C:15-1 and 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1(b); first-degree carjacking, N.J.S.A. 2C:15-2(b); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). After merging the conspiracy and robbery convictions, the judge sentenced defendant to seventeen years in prison on that count, twenty-one years in prison on the carjacking charge, and eight years in prison on the assault charge. He imposed an 85% period of parole ineligibility as to each sentence pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and ordered the sentences to run concurrently.
Defendant raises the following issues on appeal:
BECAUSE THE PHOTOGRAPHIC ARRAY PROCEDURE USED WITH THE VICTIM CREATED AN UNRELIABLE RESULT, THE COURT ERRED IN FAILING TO EXCLUDE THAT IDENTIFICATION AS WELL AS THE VICTIM'S SUBSEQUENT IN-COURT IDENTIFICATION OF DEFENDANT.
THE COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE DEFENSE OF "AFTERTHOUGHT THEFT" REGARDING THE CARJACKING CHARGE. IT ALSO ERRED IN DENYING THE DEFENSE MOTIONS FOR JUDGMENT OF ACQUITTAL AND FOR A NEW TRIAL AS TO THAT CHARGE, BECAUSE THE STATE HAD FAILED TO PROVE THAT THE ROBBERY OCCURRED "IN THE COURSE OF" THE THEFT OF THE CAR. (Partly Raised Below)
DEFENDANT WAS IRREPARABLY PREJUDICED BY THE STATE'S FAILURE TO PROVIDE HIM WITH ADEQUATE NOTICE THAT THE VICTIM CLAIMED TO HAVE RECOGNIZED HIM AS A REGULAR CUSTOMER OF THE CAB COMPANY FOR WHICH THE VICTIM DROVE.
THE AGGRAVATED ASSAULT CONVICTION MUST BE MERGED INTO THE ROBBERY CONVICTION. (Not Raised Below)
In a supplementary pro se brief, defendant raises the following points:
THE PROSECUTOR'S IMPROPER COMMENTS DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV, N.J. CONST. (1947) ART. I, PARS, 1, 9, & 10.
THE TRIAL COURT ERRED IN PERMITTING ONLY A PARTIAL READ BACK OF THE TESTIMONY OF A CRUCIAL WITNESS. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We agree with defendant that his conviction for aggravated assault must merge into the robbery conviction, and therefore remand the matter to the Law Division for re-sentencing. In all other respects, we affirm.
On August 29, 2003, at approximately 11:30 p.m., taxi driver Giovanny Mino was dispatched to pick up passengers on Bloomfield Avenue in Newark. Mino picked up two men and drove them to James and Nesbit Streets, as requested. When the cab arrived at its destination, one of the men told Mino to "park on the right side of the street." Given the neighborhood, Mino became apprehensive and turned on the inside light in the cab. The man sitting on the passenger side of the rear seat immediately turned the light off, and the other, seated behind Mino, grabbed him around the neck.
The man on the passenger side moved to the front seat and held Mino down as the other man stabbed him from behind in the shoulder and neck. Pleading with the men not to kill him, Mino offered them his money, but the two assailants continued their assault and ripped the cab driver's money from him. Eventually, Mino was able to grab the weapon, a screwdriver, from the man in the back seat. He opened the door and ran as the man in the front seat drove the cab away.
Mino ran to the police station located on Nesbit Street. He was taken by ambulance to the hospital where he was treated for his wounds. After leaving the hospital the next day, Mino returned to the police station, gave a statement, and provided a description of his assailants. While there, he viewed "a lot" of photographs from picture albums in an attempt to identify his assailants, but was unable to do so. Mino was subsequently contacted by Detective Jose Danoys who informed him that a suspect had been located, and asked Mino to come to the station to view additional photographs. Mino assumed that he would be able to identify his assailants in these new photographs. He was shown six pictures and identified the sixth one as that of the person who was in the front seat, held him down, and drove the cab away when he fled. Mino immediately recognized this man because he was a regular customer of the cab company and he would always call requesting to be picked up from Pennington Street.*fn1 Mino identified defendant in the courtroom as that man. On August 31, after a civilian called the police department and reported a vehicle on the street that appeared to be stolen, Mino's cab was recovered on Pennington Street.
Although defendant did not testify, misidentification was raised as a defense through two police witnesses. Danoys testified that Mino never described either assailant as having a tattoo. Danoys also noted that when he issued a warrant for defendant's arrest, he described him as 5'10" tall, weighing 195 pounds, a description that was inconsistent with that given by Mino. Defendant called Detective Vincent Corti as his witness. On August 21, 2003, Corti came into contact with defendant and noted that he had a tattoo of the words "Angel Xavier" on his left arm. At trial, Corti identified defendant's tattoo as being the same one he saw that day. The jury rejected this defense, and convicted defendant.
In Point I, defendant contends that the photographic identification procedure was unduly suggestive and tainted the in-court identification made at trial. The issue arose during a pre-trial Wade*fn2 hearing, at which the State's only witness was Danoys.
On September 1, Danoys prepared a photo lineup with six photos "identical to each other" and selected by other detectives based on Mino's description of his assailant. He showed the photos to Mino "one at a time[,]" and utilized a three page standard form that he described in great detail. Danoys translated the instructions on the form into Spanish so Mino could understand them. The form advised Mino that the police were making no representation that a suspect would be in the photo array. Mino identified defendant's photo, the sixth and last shown to him, and he wrote number six on the form.
During cross examination, Danoys confirmed that on August 30, Mino had looked at fifty photographs, but did not identify his assailant. The six photographs presented to Mino on September 1 were selected by "other detectives from the squad [who] said there were robberies in th[e] area and they had a suspect." The detectives used a picture of defendant to generate by computer five other photographs depicting men that "looked like the suspect[.]" The five other photographs all depicted light or white skinned, Spanish males with black hair wearing white t-shirts. Prior to calling Mino to the police station to view the six photos, Danoys had learned that the stolen cab had been found on Pennington Street on August 31, and that defendant, who was a suspect in other local robberies, lived on Pennington Street.
The judge found that initially "Mino was shown a series of photographs selected by the computer that matched the general description" he had given the police. Mino did not recognize his assailant in any of the fifty photographs he was shown. The judge further found that two days later, Mino viewed a photo array which was "a computer  printout [of] six photographs . .
. [o]ne . . . of the defendant . . . who . . . had [been] identified as a suspect in other robberies. The photographs all showed Hispanic males . . . and were  similar to defendant in this case." The judge found that Mino "was told that there's no representation made that there is a suspect in this group[.]" He concluded that although defendant's photo was the sixth and last shown to Mino, that was of "no moment" and determined that the State had met its burden of proof. He admitted the photographic identification evidence at trial.
Defendant argues the judge erred in failing to exclude the out-of-court identification because the procedure used was unduly suggestive and unreliable. Specifically, because Danoys informed him that the police had a suspect before he viewed the second set of photos on September 1, Mino believed a photo of his assailant would be in the display. Defendant argues, therefore, that the procedure was impermissibly suggestive, and Mino's in-court identification was tainted. We disagree.
We note initially that defendant never raised this specific argument below. Danoys was the only witness produced at the Wade hearing. He testified that he utilized a form that specifically advised Mino that the police were making no representation that a suspect's photo was contained in the array. Testimony to the contrary was only adduced when Mino testified before the jury. At that point, defendant never objected, nor did he request that the judge reconsider the propriety of the out-of-court procedure in light of this revelation.
The standards we apply to assess this issue were recently reiterated by the Supreme Court in State v. Adams, 194 N.J. 186 (2008). "In our two-pronged approach to determine the admissibility of an out-of-court identification, the reviewing court must first 'ascertain whether the identification procedure was impermissibly suggestive.'" Id. at 203 (quoting State v. Romero, 191 N.J. 59, 76 (2007)). If it was, "the court must then decide 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Romero, supra, 191 N.J. at 76). "The essential question is whether there was sufficient reliability in the identification to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." Id. at 204.
In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977), the United States Supreme Court set forth the factors to be considered by the trial court in determining reliability as follows:
[T]he 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Ibid.]
When we review the trial judge's determination as to the reliability of the witness's identification, his findings are "entitled to very considerable weight." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973). "[T]he trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." Adams, supra, 194 N.J. at 203.
Viewing the totality of the circumstances surrounding the photographic identification procedure, we are convinced it was not unduly suggestive, and that Mino's identification was sufficiently reliable to be admitted. The procedure Danoys utilized was in full compliance with the New Jersey Attorney General Guidelines. See Att'y Gen. Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (April 18, 2001); see also State v. Delgado, 188 N.J. 48, 61 (2006) (noting "the 2001 guidelines issued by the . . . Attorney General's Office were intended to ensure that identification procedures . . . minimize the chance of misidentification of a suspect")(internal quotations omitted). Moreover, Mino had ample time to see defendant at close range as he was held down during the struggle in the front seat of the cab. In addition, Mino's trial testimony revealed that he was familiar with defendant, who was a frequent fare of the cab company, and whom Mino had previously observed on the street. In short, the procedure was not unduly suggestive, and the reliability of Mino's identification was more than adequately established. We find no basis to reverse.
In Point II, defendant contends the judge 1) erred in failing to charge the jury as to "the defense of 'afterthought theft' regarding the carjacking charge"; and 2) erred in denying defendant's motion for acquittal or judgment notwithstanding the verdict (j.n.o.v.) because the evidence was insufficient to prove beyond a reasonable doubt that the theft of the car was "in the course of" the robbery or assault of Mino. We find no error.
At the close of the evidence, defendant moved to dismiss the carjacking count because the State had not offered any testimony linking the robbery and assault to defendant's "attempt to steal the car." The judge denied the request, concluding the jury could infer from all the evidence that defendant intended to take the car and that the assault was in the course of the theft. Defendant made no specific request to charge the jury regarding this argument, and did not object to the judge's charge, which fully complied with our Model Criminal Jury charge. Before sentencing, defendant moved for (j.n.o.v.) or for a new trial arguing, among other things, that the State had failed to prove that he committed the assault or robbery upon Mino "in the course of committing" the unlawful theft of his cab. In denying the motion, the judge concluded.
It is clear defendant exercised control over the vehicle with, at the very least, the intent to temporarily withhold the motor vehicle from  Mino . . . . The defendant twice shut off the interior lights of the vehicle, prevented  Mino from operating the vehicle by holding his hands and tearing his clothes and he thereafter drove off in the vehicle . . . .
The judge further found that "a jury could easily infer that the defendant and his friend intended to permanently deprive the owner of the vehicle given that they continued to assault  Mino and rendered him incapacitated after they had succeeded in getting all the money he had[.]"
We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
We apply the same standard to our review of the denial of defendant's motion for j.n.o.v. or for a new trial. See State v. Perez, 177 N.J. 540, 549 (2003).
A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle . . . he: (1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle; (2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury; (3) commits or threatens immediately to commit any crime of the first or second degree . . . .
An act shall be deemed to be "in the course of committing an unlawful taking of a motor vehicle" if it occurs during an attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt or commission. [N.J.S.A. 2C:15-2(a).]
Defendant argues that the theft occurred after Mino fled from the cab, i.e., after the assault and/or robbery were completed, and there was no other evidence to demonstrate that these crimes were committed "in the course of committing an unlawful taking of a motor vehicle[.]" However, as the judge pointed out, defendant and his companion exerted control over the vehicle during the course of the assault and robbery. Defendant denied Mino access to the lights in the cab, he pulled his hands off the steering wheel, and continued the assault even after Mino handed over all his money. Defendant did not flee from the cab when the robbery was completed, but, instead drove it away when Mino fled. Based upon this evidence, we conclude the jury could infer beyond a reasonable doubt that the robbery and assault occurred in the course of the theft of Mino's car. Therefore, defendant's motions for acquittal, and for j.n.o.v. or a new trial, were properly denied.
Nor do we find defendant's argument regarding the jury charge to be persuasive. Defendant never requested a specific instruction be given to the jury on this issue. Therefore, we must consider whether the failure to provide any guidance beyond the contents of our model jury charge amounts to plain error clearly capable of bringing about an unjust result. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of a legal impropriety . . . 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. Burns, 192 N.J. 312, 341 (2007) (internal quotations and citation omitted) (emphasis added).
Defendant relies on State v. Lopez, 187 N.J. 91, 101 (2006), arguing that the judge was required to tell the jury that if his theft of the cab was an "afterthought," he was not guilty of carjacking. In Lopez, the Court affirmed our reversal of the defendant's conviction for robbery, finding the trial judge improperly instructed the jury that defendant could be guilty of "afterthought robbery." Ibid. In doing so, the Court noted, "our [robbery] statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force." Ibid.
We would agree with defendant's proposition that our Criminal Code does not criminalize "afterthought carjacking" because the language of N.J.S.A. 2C:15-2(a) essentially tracks the language of N.J.S.A. 2C:15-1(a). However, in the absence of a specific request, the judge's failure to define something that is not a crime is not reversible error. Moreover, in Lopez, defendant's testimony presented the issue squarely for the jury's consideration, resulting in the State's request to have the trial judge charge "afterthought robbery." Here, defendant did not testify and, in fact, the argument was never raised in defense counsel's summation.
The judge told this jury that the State must prove defendant acted "with the purpose to either permanently depriv[e] the owner of the motor vehicle, or temporarily withhold the motor vehicle from the owner[.]" The judge also noted that defendant must "knowingly inflict bodily injury, or use force upon . . . [the] person in possession or control of [the] motor vehicle" to be guilty. And, lastly, that defendant had to do so "in the course of committing the unlawful taking of [the] motor vehicle[.]" These are accurate statements of the law, and the instructions adequately explained to the jury the essential elements of the crime. We find no error.
Mino testified that he knew defendant as a "customer of the compan[y]" who would frequently call for a cab. Defense counsel objected and argued at sidebar that he was surprised because these facts were not in discovery. The judge found that the prosecutor had only learned of the information two days earlier, and had told defense counsel about it that day. The judge further noted that defendant was free to investigate the records of Mino's employer over the weekend, and he overruled the objection.
Defendant raised the issue for a second time during his motion for a new trial. The judge, however, found that "defendant and defense counsel always knew that  Mino  maintained that he had known of [defendant] in the past because, at the very least, he had seen him outside of a bar on Bloomfield Avenue . . . . This is a case in which the victim all along had said that he had known [defendant] or . . . seen him in the past, and so that doesn't come as a surprise." Furthermore, the judge noted that defendant was apprised of Mino's anticipated testimony immediately before trial began, and had a full week to investigate the allegation that he was a frequent customer of the cab company before he rested and summations were given. The judge denied the motion.
Defendant reiterates his argument before us. We find it to be of insufficient merit to warrant any extensive discussion in this opinion. R. 2:11-3(e)(2). The prosecutor did not know of the specific information beforehand and immediately advised defense counsel when she found out as the trial commenced. Defendant did not request an adjournment to investigate, and, in fact, apparently failed to investigate Mino's claim during the ensuing week of trial. Moreover, defendant was aware through the discovery that was provided that Mino told the police that he would be able to recognize defendant having seen him before on Bloomfield Avenue. The judge's decision to admit the testimony, to which we accord significant deference, State v. Morton, 155 N.J. 383, 453 (1998), does not provide a basis for reversal.
In his pro se brief, defendant argues reversal is required because of comments the prosecutor made in summation, and because of the manner in which the judge responded to the jury's request for a read back of testimony. We do not find either argument persuasive.
During closing argument, the prosecutor, in direct response to defense counsel's claim that Mino was being "manipulative" in his testimony, told the jury that Mino "was the one who was being manipulated, and his testimony was getting convoluted based on the things that he was asked, and the fact [that] he needed an interpreter . . . ." She urged the jury to use its common sense and find Mino credible. The judge overruled defendant's objection made at the end of the summation, finding that the comments were not made to disparage defense counsel, but rather were in response to defense counsel's summation, and highlighted the problems Mino faced in having to testify through an interpreter.
"[P]rosecutors . . . are expected to make vigorous and forceful closing arguments to juries[,]" State v. Frost, 158 N.J. 76, 82 (1999), and are afforded "considerable leeway" in their remarks. State v. Smith, 167 N.J. 158, 177 (2001). They may not, however, engage in unfair tactics or unfairly disparage the defense. Frost, supra, 158 N.J. at 84-86. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). To warrant reversal, the prosecutor's comments must be "so egregious that [they] deprived  defendant of a fair trial." Frost, supra, 158 N.J. at 83.
Here, the prosecutor's summation comments simply did not amount to misconduct that requires reversal.
During deliberation, the jury requested to see the entirety of Mino's testimony. In response, the judge said "we can arrange to have the court reporter read back to you Mr. Mino's entire testimony . . . . If that's what you're looking for, I just want to let you know it's read back in real time, so you're asking for a substantial portion of testimony to be read back  which will take a fair amount of time." The judge then asked the jury to "retire to the jury room" and "reformulate" their request to "narrow it down." However, the judge also told the jury that if their desire was "to have the entirety of the testimony read back" they would be accommodated.
The jury returned with another note that contained extensive questions regarding Mino's testimony. After conferring with counsel, and with their consent, the judge ordered the read back of Mino's entire testimony. "The rules governing the read back of testimony are relatively straightforward. It is well-established that 'the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court.'" State v. Wilson, 165 N.J. 657, 660 (2000) (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). The judge did not mistakenly exercise his discretion in responding to the jury's request as he did.
Defendant contends that his conviction for aggravated assault must merge as a matter of law with his conviction for robbery. We agree, and therefore remand the matter to the trial court for re-sentencing.
N.J.S.A. 2C:1-8 provides in pertinent part that a person "may not . . . be convicted of more than one offense if . . .
[o]ne offense is included in the other[.]" "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[.]" N.J.S.A. 2C:1-8(d). However, in analyzing whether two convictions for different offenses merge as a matter of law at sentencing, we employ a flexible approach that considers the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.
[State v. Mirault, 92 N.J. 492, 501-02 (1983) (quoting State v. Davis, 68 N.J. 69, 81-82 (1975)).]
The indictment charged defendant with first-degree robbery in that, in the course of committing a theft upon Mino, he "was armed with, did use or threaten the immediate use of a deadly weapon." See N.J.S.A. 2C:15-1(b). The indictment also charged him with second-degree aggravated assault in that he "purposely, knowingly or recklessly . . . cause[d] or attempt[ed] to cause serious bodily injury" to Mino. See N.J.S.A. 2C:12-1(b)(1). In his charge, the judge told the jury that the State had to prove beyond a reasonable doubt that "defendant was armed with, used, or threatened immediate use of a deadly weapon, here a screwdriver," for defendant to be found guilty of first-degree robbery.*fn3 When he charged as to the aggravated assault, and a number of lesser-included assault offenses, the judge instructed the jury on the concept of accomplice liability. He then defined second-degree aggravated assault as requiring proof that defendant "caused serious bodily injury to another."
The evidence in the case clearly demonstrates that "the time and place" of each violation were the same. There was no break in the chain of continuous events that supported each crime and both were consummated in the front seat of Mino's cab. The assault upon Mino, though requiring different proofs than those required to sustain the first-degree armed robbery conviction, was "an integral part of a larger scheme or episode." The intent to use a deadly weapon to accomplish the robbery was the same intent defendant shared with his companion in using the deadly weapon to cause Mino's serious bodily injury. In short, we agree with defendant that under the circumstances presented, the two offenses merge as a matter of law for sentencing purposes. We therefore are compelled to remand the matter to the trial judge for re-sentencing.
Affirmed; remanded solely for the purpose of re-sentencing. We do not retain jurisdiction.