September 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MWANSA CHIPEPO A/K/A MNANSA CIPEPO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2009
Before Judges Graves and Ashrafi.
Defendant Mwansa Chipepo and his wife, co-defendant Venette Chipepo, were charged with second-degree conspiracy to promote or facilitate the crime of aggravated arson, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:17-1(a) (count one); and second-degree aggravated arson by starting a fire in the Township of Maplewood, New Jersey, with the purpose of destroying a building or structure, in violation of N.J.S.A. 2C:17-1(a)(2) (count two). Following a joint trial, which began on May 9, 2006, and concluded on May 18, 2006, defendant was found guilty on both counts.*fn1 On February 6, 2007, the trial judge merged count one into count two and sentenced defendant to an eight-year prison term for aggravated arson.
On appeal, defendant presents the following arguments through counsel:
THE STATE ARGUED FACTS NOT IN EVIDENCE, DEPRIVING MR. CHIPEPO OF A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND XIV; N.J. CONST. ART. I, PARAS. 1 AND 10.
MR. CHIPEPO'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS WERE VIOLATED WHEN THE STATE'S WITNESS NARRATED A VIDEOTAPE, THEREBY USURPING THE JURY'S FACT FINDING FUNCTION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARAS. 1, 9, AND 10.
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Additionally, defendant argues in a pro se supplemental brief that he "was denied his right to the effective assistance of trial counsel, right to a fair trial and to due process of the law under the state and federal constitution." Based on our examination of the record, the briefs, and the applicable law, we have concluded that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
On April 9, 2004, at approximately 9:44 p.m., the Maplewood Fire Department responded to a fire at the residence of Taswiyah Raoof, who was not at home when the fire started.
Defendant and his wife resided next door.
When Lieutenant Carl Kling of the Maplewood Fire Department arrived on the scene, he observed "fire all around" a basement window. Kling also saw "scorching along the driveway and up against the side of the house," and he realized "it was an outside fire that was going into the basement. So, we did have fire into the basement."
Kling testified "there was an odor of gasoline" in the basement and, when Kling was performing a "secondary search" of the house, he saw a TV monitor in the front bedroom that was on. Kling assumed that the monitor was hooked up to surveillance cameras outside of the residence because he could see his personnel working outside. When the police interviewed Raoof, she confirmed she had a security video system with cameras that were working when the fire started, and the cameras were attached to a recording device. At trial, Raoof testified that when she watched the video of the events that took place just before the fire, she saw two people in her driveway, but she could not identify who they were.
The next day, on April 10, 2004, while canvassing the area for evidence, the police found a black plastic trash bag with a gas can inside located in some bushes approximately 100 yards from where the fire had occurred. Sergeant Michael Marucci testified that when he emptied the contents of the gas can into a container, "[i]t smelled like gasoline." In addition, Marucci testified the "gas can appeared to be new," and he decided to check area stores to see if he could determine where it was purchased. As a result of his investigation, Marucci learned that a gas can, along with trash bags, gloves, and an "Aim & Flame" were sold at a local Home Depot store on April 9, 2004.
Marucci testified the transaction had been recorded by a surveillance camera and that he viewed the video:
Q: Did you recognize any of the individuals depicted in that video that you watched?
Q: Who did you recognize?
A: Mr. and Mrs. Chipepo.
Q: In looking at the video, could you see in the video any of the items that were being purchased at that time?
Q: What items could you identify by looking at the video?
A: I identified a gas can. I identified a lighter. I identified a pair of gloves. And I identified a... box of Glad trash bags.
In addition, Marucci testified he observed another video taken by a Home Depot surveillance camera that showed Mr. and Mrs. Chipepo entering and leaving the store.
In his opening statement and in his summation, the prosecutor told the jury that the State did not intend to prove "that the two actors shown in the video setting fire to Ms. Raoof's house are these two [defendants]." Instead, the State's theory was "that whoever those two individuals were they were acting in full concert with Mwansa Chipepo and Venette Chipepo," who were Ms. Raoof's neighbors.
Defendant elected not to testify, and he did not call any witnesses in his defense. However, in a statement to the police on April 14, 2004, defendant denied any involvement in the fire. In his written statement, defendant said he was in New York City on April 9, 2004, and he returned home about an hour after his wife called and told him about the fire.
Venette Chipepo testified in her own behalf and denied any wrongdoing. According to Mrs. Chipepo, she and her husband owned investment properties and they used a lawnmower to maintain those properties. She claimed they needed a new gas can so they bought one and left it on their deck. She also testified that at the time of the fire, she was having dinner with her mother at "TGIF in West Orange."
During his opening statement, the prosecutor said: "There had been an ongoing, let's say, less than friendly neighborly relationship between...." At that point, defense counsel objected on the ground that the State had represented before trial that it would not offer any evidence of prior bad acts of defendants under N.J.R.E. 404(b). After a lengthy sidebar discussion in which the State disputed that its reference to the neighborly relationship required use of evidence under N.J.R.E. 404(b), the State agreed to move on in its opening statement without further reference to that topic.
Defendant initially contends that this partial comment by the prosecutor deprived him "of a fair trial and due process of law." We cannot agree. We have reviewed the challenged statement in light of the entire trial record, including the proofs the State was prepared to offer, and the statement by Venette Chipepo that she "figured that her and her husband would be suspects," and we have concluded that the prosecutor's statement did not constitute prosecutorial misconduct. See State v. Frost, 158 N.J. 76, 83 (1999) ("[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial.").
In his second point, defendant claims his right to a fair trial and due process were violated when Detective Marucci was allowed to narrate the digital copies of two silent videotapes taken by Mrs. Raoof's security cameras. In overruling defendant's trial objection, the trial court stated: "The jury can see the same thing that he says he's observing. The jury can evaluate his credibility of what he sees. And with a tape with no sound, I think it's appropriate for the full development of the record to have this kind of testimony." We agree. See State v. Loftin, 287 N.J. Super. 76, 100 (App. Div.) (holding that detective was allowed to narrate videotape and to testify that suspect shown on hotel surveillance videotape was defendant because the testimony "satisfied both prongs of N.J.R.E. 701"), certif. denied, 144 N.J. 175 (1996).
Defendant also challenges his sentence, claiming "the trial court abused its discretion by placing too much weight on the usual aggravating factors----risk of another offense and need to deter." However, we are satisfied from our review of the record that the trial court correctly applied the sentencing guidelines and its findings regarding the presence of aggravating factors and the absence of mitigating factors were based on competent and credible evidence in the record. Consequently, we find no illegality and no clearly mistaken abuse of discretion. State v. Kromphold, 162 N.J. 345, 355 (2000); State v. Roth, 95 N.J. 334, 363-65 (1984).