November 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAMIR JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0121.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Graves and J.N. Harris.
Three robberies occurred in the darkness of August 25, 2003, all within one mile of each other in Paterson. Two victims were together at the time they were accosted by an individual wielding a weapon and were forced to turn over their personal property. The other victim was robbed by a person at knifepoint earlier in the evening - perhaps only minutes earlier - and was relieved of an empty wallet.
Defendant was apprehended on the night in question and charged with committing the crimes. The robberies and associated weapons possession charges were tried together. The jury convicted defendant of two counts of first-degree robbery, one count of second-degree robbery, one count of third-degree possession of a weapon for an unlawful purpose, and one count of fourth-degree unlawful possession of a weapon.
Defendant moved prior to the first trial to sever the charges. The motion was denied by Judge Ralph L. DeLuccia, Jr. Defendant's first trial was held in September 2006, before Judge Ronald G. Marmo. That trial ended in a hung jury. Commencing on May 29, 2007, defendant was retried before Judge Marmo and a new jury in a trial that lasted four days. Judge Marmo, after taking the jury's verdict, merged the weapons convictions into the robbery convictions and imposed an aggregate sentence of eight years, subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals and we affirm.
In the early morning hours of August 25, 2003, defendant Shamir Jackson approached an individual near Main and Barclay streets in Paterson. Defendant demanded that the victim empty his pockets at knifepoint,*fn1 initially taking the victim's wallet, but then dropping it on the ground when it proved bare of cash. Defendant then drove away.
Following the encounter, the victim called 9-1-1. When police officer Luis Cruz responded to the scene, the victim described the perpetrator as a black male wearing a grey, hooded sweatshirt and blue jeans, with braided hair. The license plate number of the automobile was provided to police officer Cruz.
On the same night, defendant approached two men standing outside a bar located on the corner of 21st Avenue and Gray Street. One victim later told the police that defendant exited his car, flashed what appeared to be a police badge, identified himself as a police officer, and told the men to get against the wall. Defendant was said to be holding a knife. Defendant removed two one-dollar bills from one of the victim's pockets. The other victim was ordered to relinquish his cell phone before defendant drove away.
Immediately after the second robbery, one of the victims and a friend jumped in the friend's car and followed defendant's automobile. The other victim remained outside the bar, and flagged down police officer Gary DeStefano fifteen minutes after the robbery. The police officer was informed that a "black male . . . with braids wearing a white T-shirt and blue jeans" pulled up to the corner in a "black, older model, four-door box-type vehicle." A description of the suspect and automobile was broadcast on police radio.
Police officer Steven Leischman was on patrol across town approximately two miles from the bar. As he was driving along, he observed the victim and friend's motor vehicle. The driver was sounding the horn and gesturing towards defendant's automobile directly in front of him. Officer Leischman activated his overhead lights and stopped defendant's automobile a few blocks later. The motor vehicle carrying one of the victims and his friend also stopped at the scene. Officer Leischman observed a gold-handled knife, a cell phone, and two one-dollar bills lying on the front passenger seat in defendant's automobile. Defendant was positively identified by two of the victims as the man who robbed them together at knifepoint. Defendant was placed under arrest.
On February 11, 2004, an indictment was filed, charging defendant with three counts of first-degree robbery, N.J.S.A. 2C:15-1(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
On May 5, 2006, Judge DeLuccia denied defendant's motion to sever two of the robbery counts from the other one. For purposes of the motion, the parties did not dispute the material facts; therefore, no testimony was taken and the court relied on documentary evidence appended to the motion papers to establish the facts.
Judge Marmo presided over the retrial where the jury returned a verdict convicting defendant of two counts of first-degree robbery, one count of second-degree robbery as a lesser-included offense, one count of third-degree possession of a weapon for an unlawful purpose, and one count of fourth-degree unlawful possession of a weapon. On September 7, 2007, Judge Marmo sentenced defendant to three concurrent eight-year terms with an 85% period of parole ineligibility. The court merged the weapons convictions into the robbery convictions for the purposes of sentencing.
Defendant presents the following points for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO SEVER.
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY NOT TO CONSIDER EVIDENCE OF ONE OFFENSE AS EVIDENCE ESTABLISHING THE OTHER (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING DEFENDANT TO THE MINIMUM TERM PERMISSIBLE UNDER THE CRIMINAL CODE.
We reject these arguments and affirm.
Rule 3:7-6 permits joinder of multiple charges in a single indictment where "the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." The safety valve for prejudicial joinder, separate trials, may be ordered pursuant to Rule 3:15-2(b).
Here, the attacks involved common circumstances and took place within a few minutes of each other, and in close proximity, indicating that they were part of a "common scheme." See State v. Long, 119 N.J. 439, 475-76 (1990) (upholding joinder for two shootings, the latter one fatal, occurring more than two hours apart); State v. Hardison, 204 N.J. Super. 1, 10 (App. Div. 1983) (holding two armed robberies committed within an hour to be part of a common plan or scheme), aff'd, 99 N.J. 379 (1985).
An appropriate test for whether prejudicial joinder requires severance is if evidence of one crime would be substantively admissible to prove guilt of another crime under N.J.R.E. 404(b). State v. Pitts, 116 N.J. 580, 601-02 (1989). Where the same evidence would be equally admissible in separate proceedings, there is no prejudice to defendant in joining the offenses in a single indictment. Ibid. Even if tried separately, the earlier attack would have been admissible as probative of defendant's motive, intent, preparation, and plan to commit armed robberies later that evening. N.J.R.E. 404(b). Thus, the court properly tried the two events together. See State v. Oliver, 133 N.J. 141, 151 (1993).
The admission of other-crimes evidence is governed by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). However, the rule permits admission of other-crimes evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. The rule is designed "to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged." See State v. Barden, 195 N.J. 375 (2008).
Due to its "unique tendency to turn a jury against the defendant," the admission of other-crimes evidence must be handled cautiously. State v. Reddish, 181 N.J. 553, 608 (2004) (quoting State v. Stevens, 115 N.J. 289, 302 (1989)). Indeed, as the Court has stated, "[t]he 'inflammatory characteristic of other-crime evidence . . . mandates a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice.'" State v. Cofield, 127 N.J. 328, 334 (1992) (quoting Stevens, supra, 115 N.J. at 303). As a result, N.J.R.E. 404(b) is viewed as a rule of exclusion rather than a rule of inclusion. State v. Darby, 174 N.J. 509, 520 (2002).
In light of these concerns, the Court has established a four-part test that other-crimes evidence must meet in order to be properly admitted into evidence:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
Here, all of the events occurred within one overnight period, in close locational proximity, and with similar operational attributes. There was clearly nothing unduly prejudicial in presenting these linked events to the jury. Accordingly, we hold that Judge DeLuccia acted within his sound discretion in denying defendant's severance motion. See State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Erazo, 126 N.J. 112, 131 (1991).
Defendant contends for the first time on appeal that the trial judge erred in failing to tailor the jury instructions to the facts of this case to exclude the possibility that the jury would establish guilt of one crime by reference to another. We disagree.
Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287-88 (1981). It is hardly surprising that most people do not understand legal jargon; thus, the court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find."
Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the nature of the jury charge, an appellate court is to examine the entire charge and the totality of the circumstances to see whether it was ambiguous, misleading, or misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).
"The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion." Bradford v. Kupper Associates, 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1999). Therefore, a showing of plain error must occur when the defendant claims error on appeal, but did not object to the charge below. R. 1:7-2. Plain error is an error that is "clearly capable of producing an unjust result." R. 2:10-2. In order to reverse, we must find that this capability is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
In this case, when viewed as a whole, the instructions were more than adequate to protect defendant from a jury untethered from the law. The judge clarified the deliberative process for the jury, explaining:
"[t]he elements of armed robbery are the same. They don't change from Counts One, Two, or Three. But you must deliberate each count separately. You must evaluate the evidence separately as it applies to each of the five allegations. It must be individual deliberations, and a separate verdict as to each of the five."
Based upon these instructions, together with the totality of the jury charge that was given, the verdict leaves us confident that it was rendered in conformity with law.
Lastly, the sentence imposed by the judge, while arguably outside of the mainstream, was not such an outlier as to warrant a remand. Judge Marmo was aware of what he was doing as he struggled to solve the sentencing calculus:
I know this is not consistent with the case law. And I don't know that I have something to show an Appellate division [panel] how I'm coming to this conclusion consistent with the case law, because I don't. But I can't disagree with the prosecutor's recommendation. I think that is an appropriate sentence for this particular man, even though these crimes warrant a far greater sentence than this.
That is, he knowingly found that the mitigators clearly outweighed the aggravators so as to justify a downward departure on the degree of the conviction, but then imposed a sentence in the mid-to-high range (eight years) for a second-degree conviction. Defendant claims that the sentence should have been the minimum term. We disagree.
We review a judge's sentencing decision utilizing an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. Roth, 95 N.J. 334, 363-64 (1984). "[A] trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); R. 3:21-4(e). When reviewing the propriety of a sentence, we make sure the sentencing guidelines were followed, and that the findings on aggravating and mitigating factors were based upon "'competent credible evidence in the record,'" and the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting Roth, supra, 95 N.J. at 364-65).
As the Court stated in State v. Balfour, the decision to sentence a defendant as a second-degree offender and to then impose the maximum sentence within the second-degree range "are distinct decisions, each of which 'independently reflects the exercise of judicial discretion.'" State v. Balfour, 135 N.J. 30, 38 (1994)(citing State v. Kruse, 105 N.J. 354, 362 (1993)). Here, the sentencing judge was fully aware of his conundrum, yet made sufficient findings to support the sentence.
Here, the trial court found two aggravating factors pursuant to N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense) and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found four mitigating factors pursuant to N.J.S.A. 2C:44-1(b)(7) (no prior criminal activity), N.J.S.A. 2C:44-1(b)(8) (conduct was the result of circumstances not likely to recur), N.J.S.A. 2C:44-1(b)(9) (character of defendant indicates that he is unlikely to commit another offense), and N.J.S.A. 2C:44-1(b)(11) (excessive hardship to dependents). The sentencing judge had grave reservations about acceding to the State's recommendation of sentencing defendant as a second-degree offender, but nevertheless granted that lenity while imposing an otherwise reasonable term within the appropriate range of sanctions. This bespeaks judicial mercifulness, not abuse of discretion. We have no hesitation in sustaining the exercise of that discretion, particularly where the sentencing judge was painfully aware of his challenging task and did not act capriciously.