July 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
QUASIM HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-01190-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2009
Before Judges Carchman and R. B. Coleman.
Following an unsuccessful motion to suppress and a jury trial, defendant Quasim Hall was convicted of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d; and second-degree eluding, N.J.S.A. 2C:29-2b. Defendant was acquitted of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4d. After appropriate mergers, defendant was sentenced to a twelve-year term of imprisonment with a mandatory eighty-five percent period of parole eligibility. N.J.S.A. 2C:43-7.2.
These are the facts adduced at the motion to suppress and trial. On April 18, 2004, at approximately 2:45 AM, two males robbed Scott Gibson in the secondary parking lot of Uncle Charlie's, a go-go bar in Linden. While Gibson stood between two cars, one man approached from behind as the other came upon Gibson from the front, brandishing a weapon.
According to Gibson, the man who approached from the front put a handgun to Gibson's stomach and demanded that he "give it up." He described the gunman as having braids, black jeans, a hat and a black sweat jacket and the other man as having blue jeans, a blue-gray jacket and a white and blue hat. The gunman then removed the chain from Gibson's neck and took approximately $150 from Gibson's wallet, while the other man firmly grasped Gibson around the neck and shoulder. After robbing Gibson, the two assailants walked back to the main parking lot outside of Uncle Charlie's.
Walter Braden, Gibson's friend, had parked his car adjacent to Gibson's car and witnessed the robbery. He saw two people matching the description given by Gibson approach Gibson between the cars. One of them displayed a handgun in his front waistband and then proceeded to remove something from Gibson's pocket as the other man removed the gold chain from Gibson's neck. Braden then saw the two men return to the main parking lot, and he called the police.
Following the report of the robbery, Officers Andrew Parella and William Bizub, who were on patrol in their marked police cruiser, began pursuing the suspect vehicle, a beige four-door sport utility vehicle. During the chase, another marked police cruiser, containing Officers Joseph Kaulfers and William Mack also began to pursue the suspect vehicle. As the suspect vehicle proceeded, the officers observed two objects, later identified as handguns, being thrown from the vehicle. The officers stopped the suspect vehicle and apprehended defendant and two other individuals. According to Officer Kaulfers, Gibson identified defendant, the driver of the vehicle, as the man who placed the object to his stomach and also identified the man in the front passenger seat as the one who ripped the chain from his neck. Upon examining the vehicle, Officer Kaulfers observed two baseball hats, one of which was blue and white, on the front passenger seat and Gibson's chain on the floor of the front passenger seat. Officer Kaulfers further observed a shell casing behind the driver's seat. During a search incident to arrest of defendant, police found defendant in possession of "$156 in cash, a set of keys and one four-inch knife with a black handle."
After placing defendant under arrest, Linden Police Detective David Kother administered Miranda*fn1 rights to defendant. Defendant proceeded to give a statement that varied from Gibson's recollection of the events. According to defendant, he, alone, approached Gibson in the parking lot and brandished a knife. As he frisked Gibson, he found a gun secured under Gibson's shirt. Defendant took the gun, the chain from around Gibson's neck, whatever money Gibson had in his pockets and returned to the main parking lot. There defendant fought briefly with another man until defendant decided to leave. As defendant approached the car he heard gun shots and picked up two friends, Kareem Prunty and Albert Haley. Once all three entered the car, defendant drove off. He did admit to throwing the gun out of the window. Defendant moved to suppress his statement to the police, because he claimed to have been read his Miranda rights while intoxicated. Judge Triarsi denied the motion.
At the conclusion of the trial, Judge Espinosa, the trial judge, instructed the jury consistent with the model charge concerning the offenses charged against defendant. She explained that the jury could find defendant guilty of robbery in the first-degree if they find that defendant committed a robbery with the use of a deadly weapon. The judge further explained that, because the State alleged that the robbery took place with a gun while defendant asserted that he used a knife to perpetrate the robbery, the jury could find either to be true to constitute robbery in the first degree. The jury determined, among the other charges, that defendant committed the robbery with a knife.
This appeal followed.
On appeal, defendant raises the following issues.*fn2
THE TRIAL COURT'S CHARGE TO THE JURY ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF AND DENIED APPELLANT A FAIR TRIAL
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING THAT APPELLANT'S STATEMENT WAS ADMISS[I]BLE AND NOT IN VIOLATION OF MIRANDA V. ARIZON[A], 384 U[.]S[.] 436 (1966).
We have carefully reviewed the record and briefs and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following observations.
With regard to the issue of the jury charge, the jury had before it, two versions of how the robbery took place. The first proffered by Gibson who asserted that defendant was brandishing a handgun and the second by defendant who admitted the robbery; however, he claimed he used a knife. Defendant's claim that there was insufficient evidence of a knife is unavailing given both defendant's confession and the presence of a knife in the vehicle.
Defendant raises the issue of the jury charge for the first time on appeal. As such it must be considered as plain error.
R. 2:10-2. Defendant must demonstrate that the error is such that it "possessed a clear capacity to bring about an unjust result." State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970))). We find no error, and the judge properly charged the jury setting forth the requisite elements of the offense.
Finally, Judge Triarsi's determination on the motion to suppress was based, in part, on the credibility of the witnesses, including defendant. The judge found defendant to be incredible. Under our standard of review, we will defer to such findings. See State v. Locurto, 157 N.J. 463, 474 (1999) (stating "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record"); State v. Morgan, 393 N.J. Super. 411, 422 (App. Div. 2007) (quoting the rule from Locurto, supra); State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (quoting the rule from Locurto, supra).