December 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN A. BLACK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-10-01268, 04-10-01269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Rodríguez, Reisner and Yannotti.
Defendant, Jonathan A. Black, appeals from his convictions, following a jury trial, of two counts each of first degree robbery, N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. These convictions were based on armed robberies of a Quick Chek convenience store and a 7-Eleven store, which occurred thirty minutes apart. Judge Joseph P. Perfilio merged the convictions for first degree robbery and possession of a weapon for an unlawful purpose on each indictment and imposed two consecutive fourteen-year terms subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The judge imposed two concurrent five-year terms for each unlawful possession of a weapon conviction. Therefore, defendant was sentenced to an aggregated twenty-eight year term with an eighty-five percent NERA parole disqualifier. We affirm.
On April 20, 2004, at approximately 12:22 a.m., two masked black males armed with handguns robbed a 7-Eleven store located on Stuyvesant Avenue in Union. Adel Hannaragaie, a 7-Eleven manager, and his friend, Anwar Menawy, were in the back of the store eating ice cream. When the robbers entered the store, they went directly to the back area where the men were located.
Both robbers were armed with black handguns and had their weapons "out" during the entire incident.
One robber, the taller and skinnier of the two, waited with Menawy in the back. That robber wore a short-sleeve white t-shirt, long pants, work boots, and a mask. The shorter robber had "long black braids" and was wearing work boots, a black jacket, short blue jeans, and gloves. The men stole the money from two cash registers and left the store. The store security cameras recorded the incident but provided no identifying information.
Quick Chek Robbery
Approximately thirty minutes later, around 1 a.m., two armed, masked, black males entered a Quick Chek store located on Morris Avenue, also in Union. LaRenda Pridgen-Parrish, a shift manager, and Youdelyne Previlon were working at the time. One robber, who was skinnier than the other wore blue jean shorts, a white t-shirt, Timberland boots, gloves, and a black face mask. He took Previlon behind the counter. As he did so, he knocked over a "battery stand" and his gun fired into the ceiling. He pushed Previlon to the floor. The robber then had Parrish take all the money out of the cash register and he placed it in a bag.
The other robber was light-skinned, had shoulder-length dreadlocks, and was "more muscular" than the skinnier robber. He wore a black hooded sweatshirt, blue jean shorts, brown Timberland boots, a black mask, and no gloves. While Parrish attempted to open the register, the muscular robber stood on the other side of the counter, threatening to kill her if she did not "hurry up." He was carrying a larger gun than the other robber. During the incident a customer, Rodrigo Patrick Erazo, entered the store. The muscular robber pointed his gun at Erazo and told him to get on the floor or he would be killed.
The security cameras and VCR were not activated at the time of the robbery and did not record the incident. Police Sergeant Harry Capko responded to the scene and found a shell casing behind the counter. None of the witnesses remembered seeing a car at the scene of either robbery.
The Vehicle Stop
During a robbery at a Foot Locker store six days later, a customer tried to enter the store but was turned away. The customer noticed that "a 1995 Mitsubishi Galant, silver, with gray tinted windows, and damage to the right front fender and [a broken right front] headlight" was partially blocking the exit. Other witnesses reported that of the two robbers, one was wearing an "olive green military jacket," and the other wore "a black hooded sweatshirt."
Two days after the Foot Locker robbery, at approximately 12:23 a.m., Officers Pietro DiGena and Barry Cohen observed a vehicle matching the witnesses' description. The officers stopped the silver Mitsubishi. They instructed the four occupants of the vehicle to roll down their windows "to see better into the car." Through the driver's window, the officers saw that "the front passengers were passing something back to the rear seat passengers," which suggested "they were trying to conceal something." The officers instructed the occupants to stop their movements. The movements stopped only after several requests.
The police officers determined that defendant was the driver of the Mitsubishi and was wearing a black hooded sweatshirt. The front-seat passenger was later identified as Kevin Drake. He was wearing a green military jacket.
The officers used flashlights to illuminate the interior of the Mitsubishi. They saw "masks and gloves on the floor of the vehicle." The occupants were taken out of the Mitsubishi oneby-one, patted down for weapons, and instructed to sit on the curb.
Officer Frank Marano looked into the rear seat on the passenger side and saw that "the seat cushion was pulled away from the side of the vehicle," which suggested to him that "something may have been hidden." When he pulled on the seat cushion "it popped out." Leaning into the vehicle, Marano saw "the handle of a Colt handgun with the hammer back and the safety off. . . . in the metal work that led into the trunk." Because of the "safety issue" that the weapon might discharge, Marano went around to retrieve the gun through the trunk.
To retrieve the gun, Marano had to move a "speaker box" in the trunk. There he found a second, .45 caliber, semiautomatic handgun on the driver's side in a location identical to that of the first gun. He also found a knife with a six-inch blade in the pocket of the driver's door and defendant's high school identification card under the tire in the wheel well. Defendant told the officers at the scene that he borrowed the Mitsubishi from a friend's mother to go to the movies and to get "prom stuff" the next day.
Officer Michael Sanford later tested the guns and found both were fully operable. A casing test-fired from the Colt .380 automatic handgun matched the .380 casing recovered from the scene of the Quick Chek robbery. Officer Michael O'Brien was unable to obtain any fingerprints from the weapons.
The customer who entered during the Quick Chek robbery remembered the guns being "silver or grayish in color" and that at least one of the weapons was "much bigger" than the Colt .380 found in the Mitsubishi trunk. At trial, he did not recognize either of the guns offered as evidence as being those used in the robbery.
Parrish, the Quick Chek manager, was inconsistent in her account of which robber held which handgun, but she identified both of the weapons taken from defendant's car as being the handguns used in the robbery.
Defendant and his passengers were arrested and taken to the Union Township jail. According to defendant, Detective Gregory Rossi told him "the first one [who] talks, walks." Approximately fifteen hours after he was arrested, defendant was brought into an interrogation room. Officer Christopher Baird gave defendant his Miranda*fn1 warnings verbally and gave him a standard Miranda waiver form. Defendant signed the form and agreed to speak to the officers. During the interrogation, which lasted approximately one hour, defendant was calm and cooperative throughout the interview. Defendant read and signed his statement, initialing each page at the bottom.
Subsequently, defendant moved to suppress his statement. Judge Perfilio conducted a hearing. Defendant testified that:
(1) he signed the Miranda warnings statement after signing the confession; (2) he was threatened with the arrest of his friend's mother, the one who lent him the Mitsubishi; and (3) "the police made up words and put them in the [confession]." Defendant denied any guilt.
Detectives Baird, Miller, and Rossi testified that none of the three officers ever promised defendant anything or threatened him in any way. In particular, the officers denied threatening to arrest the friend's mother. Defendant did not request a lawyer during the interrogation.
Following the hearing, Judge Perfilio denied the motion to suppress the confession, finding beyond a reasonable doubt, that Miranda warnings were properly given and that defendant made a voluntary statement after knowingly, voluntarily, and intelligently waiving his rights.
Defendant also moved to suppress evidence from the vehicle stop. In a letter opinion dated July 11, 2005, Judge William L'E. Wertheimer denied defendant's motion to suppress. After reciting the facts, Judge Wertheimer noted "both sides agree that the police lawfully stopped the vehicle based on the motor vehicle violation [, a broken headlight]." He then found the police had reasonable suspicion to search the vehicle:
Specifically, the officers had a reasonable suspicion that the defendant[s] were armed because: (1) the vehicle was reported to be at the scene of an armed robbery; (2) the two front seat passengers had clothing on that matched the description of the armed robbery suspects; (3) there were gloves and masks on the floor of the car; (4) the officer[s] observed the front seat passengers hand something repeatedly to the back seat; (5) when asked about the movements, the defendants denied making the movements; and (6) the stop took place at approximately 12:23 a.m.
Judge Wertheimer also found the scope of the search was justified based on the above factors, which gave the officers a reasonable suspicion that the suspects were armed, as well as the dislocated seat cushion. The initial search was limited to the area where the officers saw "furtive movements." Upon discovering the handgun behind the cushion, "safety concerns" further justified going through the trunk to secure the handgun, which in turn revealed the other weapons. The police then properly seized the weapons in the trunk pursuant to the plain view exception. Thus, the judge found exigent circumstances existed based on the inherently mobile nature of the vehicle and on the officers' justified belief that the suspects were in possession of deadly weapons.
Defendant was tried alone for the 7-Eleven and Quick Chek robberies, which were tried jointly with no objection from defendant. The jury found defendant guilty of all charges.
Defendant appeals contending:
THE TRIAL COURT ERRED DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.
A. The Trial Court Erred In Concluding The Search And Seizure Was Justified Pursuant To The Automobile Exception To The Search Warrant Requirement.
B. The Trial Court Erred In Concluding The Conduct Of The Police Was Proper On The Basis That The Occupants Of The Vehicle Defendant Was Operating Were Armed, Thus Permitting The Search of The Occupants As Well As The Interior Of The Vehicle Itself.
C. The Improper Search and Seizure Which Resulted In Defendant's Arrest Necessarily Tainted The Statement The Police Subsequently Obtained From Him At Headquarters.
We agree with Judge Wertheimer that the search of the Mitsubishi was a valid protective search pursuant to Terry v. Ohio, 392 U.S., 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). Such searches are permissible where there is reason to believe a subject is armed and dangerous. Id. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909. This exception is calculated to enable an officer to ascertain whether a suspect is actually carrying a weapon and to neutralize the threat of harm. Id. at 23, 88 S.Ct. at 1881, 20 L.Ed. 2d at 907. Such a search requires an objectively reasonable suspicion that a suspect is armed and dangerous. State v. Thomas, 110 N.J. 673, 679-80 (1988). The governing standard is "whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger." State v. Valentine, 134 N.J. 536, 543 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909).
Terry searches have been extended to the interior of an automobile.
"[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." [Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed. 2d 1201, 1220 (1983).]
A Terry search of an automobile is thus subject to the same objective reasonableness standard as a regular Terry stop. New Jersey adopted this standard in State v. Lund, 119 N.J. 35, 48-49 (1990).
Here, the police officer had probable cause to stop the vehicle and evidence linking the occupants to the armed robberies. These facts sustain an objectively reasonable suspicion that the occupants of the vehicle might be armed and dangerous. When a pat-down search did not reveal any weapons, a continued search of the car was justified by the suspicious movement within the car coupled with other evidence linking the occupants to an armed robbery. The police had an objective reason to believe the occupants were armed. When no weapons were found on the occupants, the reasonable assumption was that weapons might be concealed within the automobile itself. A continued search of the vehicle was necessary to ensure the safety of the three officers, who were out-numbered by the four suspects.
Defendant also contends:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ONCE THE JURY OBSERVED INFORMATION ON THE BACK OF ONE OF THE EXHIBITS ENTERED INTO EVIDENCE WHICH INFERENTIALLY CONNECTED DEFENDANT WITH AN UNRELATED ROBBERY INVOLVING A SHOOTING.
During deliberations, the jury noticed writing on the back of an exhibit. The writing referenced an Exxon station robbery/shooting but did not mention the defendant by name. The jury asked, "What is on the back of this board with the map. It references a .45 cal. and .380 in Union. Unconnected to this case? We would like the court to be aware of it." Defense counsel had previously noticed the writing and requested the State turn the board so it was not exposed to the jury. Apparently, neither side realized the writing was being submitted to the jury as an exhibit. Defendant moved for a mistrial. Judge Perfilio found the statement was potentially prejudicial but denied the motion, finding that there was no "overriding, absolute manifest necessity for the mistrial." He instructed the jury:
It is completely unconnected to this case. It has nothing to do with this case, this defendant, anything having to do with this case. It was done in error. It went in there in error and your perceptions are very, very good it seems. You are to completely disregard anything that was on that board.
First of all, as I said, you can only consider evidence. That wasn't evidence. What is on the front was evidence, the map. You can't consider that in any way or have it enter into your deliberations in any manner in any way at all. It should not prejudice either side in this case. It was a mistake that was not caught.
The jury then requested a read back of defendant's testimony. A small portion of this testimony was redacted, as it included a question and answer relating to the writing on the back of the poster board.
It is settled that, "[a] motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion. . . . Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right." State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S.Ct. 675, 98 L.Ed. 1097 (1954). A mistrial may be granted where "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." State v. Rechtschaffer, 70 N.J. 395, 405 (1976) (quoting United States v. Perez, 22 U.S. 579, 6 L.Ed. 165 (1824)).
Moreover, a mistrial is inappropriate where the jury's exposure to inadmissible evidence does not implicate constitutional issues and where the error is not "'of such nature as to have been clearly capable of producing an unjust result.'" State v. La Porte, 62 N.J. 312, 318-19 (1973) (quoting R. 2:10-2). This, in turn, calls for an analysis of the strength of the evidence against a defendant. The jury in La Porte was exposed to the fact that the defendant was a suspect in another robbery. Id. at 317-18. The Supreme Court found the judge's immediate and strongly-worded curative instruction, coupled with the strength of the evidence against the defendant, rendered any error inconsequential. Id. at 318.
We are mindful that, although a jury is presumed to follow a trial court's instructions, State v. Burns, 192 N.J. 312, 335 (2007), there are situations where limiting instructions would be ineffective or the jury would not "reasonably be able to follow the trial court's instructions." State v. Blanchard, 44 N.J. 195, 199 (1965).
Here, Judge Perfilio did not err in denying defendant's motion for a mistrial. Not only did the writing not directly reference defendant, the jury itself suggested the language was unrelated to the convenience store robberies. The curative instruction underscored these points. Further, there was substantial evidence of defendant's guilt: defendant's incriminating statement; the bullet casing found at the Quick Chek matching the gun found in the car defendant was driving; and the masks and gloves on the floor of the car. It seems unlikely the jury would have acquitted defendant but for its exposure to the writing.
Although the writing had the potential to prejudice defendant, the curative instruction, coupled with the fact the writing only indirectly referenced defendant, suggests there was no "manifest necessity" or threat to the "ends of public justice" in denying defendant a mistrial. The evidence against defendant underscores the lack of prejudice in the jury's exposure to the writing.
Defendant also contends:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION (Not Raised Below).
Because this issue was not raised at trial, it is reviewed pursuant to the "plain error" standard. That is "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." R. 2:10-2.
Defendant's argument fails for several reasons. First, identification was never at issue in the case. The robbers were masked in both robberies and none of the witnesses ever stated defendant was present at the scene of either robbery. Rather, the State relied largely on defendant's incriminating statement and on circumstantial evidence of defendant's involvement: the bullet casing found at the Quick Chek matching the gun found in the Mitsubishi and the masks and gloves found on the floor of the Mitsubishi. This distinguishes the present case from those where the failure to give an instruction warranted reversal. See, e.g., State v. Green, 86 N.J. 281 (1981).
Second, even if an identification instruction had been appropriate, the failure to give one, particularly in the absence of any request for such an instruction, was harmless. As noted, the State's case did not rely on eyewitnesses placing defendant at the scene of either convenience store robbery. There was other substantial evidence of defendant's involvement.
Defendant also contends:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (Not Raised Below).
In his summation, defense counsel suggested the police officers who testified, particularly Miller, lacked credibility. The Assistant Prosecutor said during her summation:
Now, [Detective] Miller testified today. He is a 28-year veteran of the Union Police Department. Now, aside from [Detective] Miller, the defendant also testified that there were other detectives present. Also veterans of the Union Police Department. I ask you why would they want to fabricate a statement? And if they were going to fabricate a statement or they were going to fabricate this case, wouldn't they have made it a hundred percent?
Neither side objected to these aspects of the other's summation. Further, given the weight of the evidence against defendant, the prosecutor's statement was not "clearly capable of producing an unjust result."
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Judge Perfilio found that "aggravating factors [N.J.S.A. 2C:44-1a] (3), (6), and (9) clearly, convincingly[,] and substantially outweigh nonexistent mitigating factors and there is a need to protect the public." The aggravating factors are: "(3) The risk that the defendant will commit another offense;" "(6) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;" and "(9) The need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a). In particular, the judge found persuasive the fact that defendant committed multiple, similar robberies within a short period of time using the same methods against multiple victims, and that one of the robberies, of an Exxon station, turned into a shooting that was particularly egregious.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The aggravating factors preponderate and justify imposition of a term closer to the top of the range. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).