January 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADRIAN MILLER, A/K/A MICHAEL SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Carchman and Parrillo.
Following a jury trial, defendant Adrian Maleek Miller was convicted of first-degree armed 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; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following this verdict, the same jury convicted defendant of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1). After granting the State's motion for a mandatory extended term and appropriate mergers, the judge sentenced defendant to a mandatory extended term of thirty years subject to NERA, N.J.S.A. 2C:43-7.2, on the first-degree armed robbery offense to run concurrent to an eighteen-month sentence on fourth-degree aggravated assault offense; fifteen years on the second-degree weapons offense and five years on the third-degree weapons offense, together with mandated fines and penalties. The sentences were to also run consecutive to the sentences defendant was presently serving on unrelated convictions. Defendant appeals, and we affirm.
These are the relevant facts adduced from the trial record. Wonil Pak was the owner of the Super Discount Store located at 700 Main Street in Asbury Park. He was working behind the counter on the evening of August 15, 2006, when a man, later identified as defendant, walked in at approximately 6:00 p.m.
Defendant picked up a hand phone and gave Pak a ten dollar bill to pay for it. When Pak handed defendant his change, defendant pulled a gun out of his pocket and pointed it at Pak, demanding money. Pak handed some cash to defendant, who demanded more. Defendant then jumped onto the cashier counter and attempted to take money from the cash register. Pak hit defendant's hand, causing defendant's gun to fall to the floor. A struggle between Pak and defendant ensued. During this struggle, defendant grabbed Pak's neck, and Pak proceeded to bite defendant's hand. Both men fell to the floor in front of the counter and the gun went off "two or three times." Following the discharge of the weapon, defendant fled. Pak then pressed a panic alarm button, alerting the police to the scene.
Officer Charles Grays of the Asbury Park Police Department responded to the alert, arriving on the scene within two to three minutes. Grays observed three shell casings on the floor of the store as well as a black baseball cap, a pair of sunglasses and a gray and white Nike sneaker. Pak indicated that these items were not in his store before defendant's arrival.
A witness, Whitney Valentin, walked into the store while the robbery was in progress. Although Valentin signed a statement indicating that he was present during the robbery and describing defendant, he later denied remembering any events of that night or signing any statement to that effect.
Pak was subsequently escorted to police headquarters, where he gave a videotaped statement. Pak described the man as "a little bit taller [than him], and a little bit skinny, as was black male." In his statement, Pak identified the assailant as wearing a dark colored short-sleeved shirt. While testifying at trial, Pak corroborated his earlier description but indicated that defendant was wearing dark clothing and a cap.
While Pak was at police headquarters providing a formal statement to officers, Wanda Lopez residing a short distance from Pak's store, heard a knocking at her door at 6:30 p.m.
She called her husband, Raymond Lopez, who immediately returned home. Upon arriving home, Mr. Lopez observed a black male laying in his back yard, appearing hurt. He recognized the man as defendant, a friend of his son's. Mr. Lopez called 9-1-1.
Officer Tyrone McAllister of the Asbury Park Police Department responded to Mr. Lopez's call and arrived at the Lopez residence at approximately 6:51 p.m. Officer McAllister observed defendant, whom he described as a black male, in the back yard, wearing black sweatpants and white socks but no shoes and no shirt. A gray and white Nike sneaker was found on the ground five or six feet from defendant, and a black t-shirt was found at the bottom of the Lopez's pool. Officer McAllister observed defendant had a gunshot wound to his abdomen and called the paramedics.
Defendant was transported to the Jersey Shore Medical Center where he was treated for a gunshot wound and eventually identified himself as Adrian Miller, after having originally identified himself as Michael Smith.
The following day, August 16, 2006, Detective Arthur Wisliceny of the Monmouth County Prosecutor's Office reported to the Medical Center to take photographs of defendant's injuries. Detective Wisliceny took several photographs of defendant's body, including his left hand, which he observed had sustained "an injury of some type."
At trial, the State proffered George Chin, a criminalistics expert with the New Jersey State Police, who had examined the sneaker retrieved from Pak's store and the sneaker found near defendant at the Lopez residence. Chin concluded "they basically comprised a pair." Both shoes were a size 12, white Nike Air Max sneakers. The sneaker found at the store was a right shoe, while the sneaker found next to defendant was for the left foot. Mr. Chin stated that both sneakers displayed similar "wear and tear."
Swabs of epithelial cells taken from the sweatband of the cap found in the store and the sleeve of the t-shirt found in the Lopez's pool yielded matching DNA, which was defendant's DNA. The probability of a random match for defendant's DNA profile among black males was estimated to be one in 114 quadrillion. No fingerprints were obtained from the gun found at the store as the "type of surface is not conducive to . . . fingerprints. It is very textured." Fingerprints from the sunglasses were also unobtainable. Officer James Ryan, a ballistics expert, was not able to conclusively show that that the fragmented cartridges were fired from the gun found at the scene. However, he stated that in his opinion three shell casings were fired from that gun.
Defendant did not testify or call any witnesses on his own behalf. This appeal followed.
On appeal, defendant argues:
THE TRIAL COURT ERRED BY ALLOWING DE FACTO OPINION TESTIMONY CONCERNING BITE MARKS ON DEFENDANT'S HAND, THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL.
THE 30 YEAR SENTENCE IMPOSED ON THE ROBBERY COUNT IS MANIFESTLY EXCESSIVE.
Defendant filed a pro se brief and asserted that "[t]he trial judge deprived defendant of his right to a fair trial by allowing hearsay."
Defendant first asserts that Detective Wisliceny's testimony was improperly admitted since he had not been qualified as an expert.
Detective Wisliceny had been called to the Super Discount store on the evening of August 15, 2006, after the robbery had occurred. Upon his arrival, a briefing was conducted during which he was advised by the officers present of the "conversations [they had] with the victim, Mr. Pak," which "revealed that an unidentified black male had entered the store in an attempt to rob Mr. Pak." After he processed the scene, Detective Wisliceny's assignment led him to the Jersey Shore Medical Center where he was directed to take pictures of defendant.
The trial court conducted a N.J.R.E. 104 hearing outside of the presence of the jury to determine whether and to what extent Detective Wisliceny could testify regarding the photographs he took of defendant's hand. Defense counsel maintained that the detective could not testify that the injury to defendant's hand was caused by a bite mark unless he was qualified before the court as an expert in bite mark analysis. He conceded that while Detective Wisliceny could "say that I took the photograph of the hand because I was directed to," and further state that he "saw something there", he should not be allowed to render an opinion as to whether the injury he observed were bite marks.
The judge agreed with counsel and precluded the prosecutor from eliciting an opinion from Detective Wisliceny that the injury on defendant's hand was a bite mark.
The Judge: You can ask [Detective Wisliceny] to describe what the picture is, meaning the location. You can ask him to describe whether or not it appears to be a fresh injury because you can't tell from the copy of the photo that I have.
But if you're going to try to elicit an opinion from him that it is a bite mark, unless you're going to qualify him as some type of expert in the identification of bite marks, I'm not going to let him render his own opinion.
Certainly you can argue that it's a bite mark in your summation.
Judge Mellaci further stated he would allow Detective Wisliceny to testify that he was led to photograph the victim because Pak had indicated he had bit his assailant.
At trial, the detective said:
Prosecutor: [W]hat was your main purpose in going [to the Jersey Shore University Medical Center]?
Wisliceny: To document the injuries of Mr. Miller.
Prosecutor: And did you photograph various areas of Mr. Miller's body?
Wisliceny: I did.
Prosecutor: And did you photograph his left hand?
Wisliceny: I did Prosecutor: And can you tell us why that was?
Defense Counsel: Objection, Your Honor. He's already testified that he was there to photograph.
The Court: Well, is the reason you photographed because you observed something on his hand?
Wisliceny: I had prior information about something that was on his hand from the victim.
The Court: I'm going to permit it. That is what we talked about. Again, he can testify factually to what he saw, what he did and why he did it but he cannot offer opinions in this area.
Prosecutor: Did you observe something to the left hand of Adrian Miller?
Wisliceny: An injury of some type yes. . . . .
Prosecutor: Was there anything you were aware of as a result of the investigation and your review of the videotaped statement that the injury on the left hand of any significance?
Wisliceny: During the videotaped statement being interviewed by Detective DuBrosky, Mr. Pak indicated through the interpreter which was a Long Branch Officer Kim, that he had bitten the defendant. I don't recall if he specified it was the right hand or the left hand.
Detective Wisliceny never opined that the injury was a bite mark, only that he saw an injury on defendant's hand.
Judge Mellaci correctly allowed Detective Wisliceny to testify regarding the bite mark, as it clearly was probative of the identity of defendant as the assailant.
This was a circumstantial case, and evidence from which the jury could draw reasonable inferences was properly admissible. See State v. Brown, 80 N.J. 587, 592 (1979) (stating that "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true). Pak's statement that he had bit assailant's hand clearly established that whether defendant had an injury to his hand was relevant to identifying defendant as the assailant.
Detective Wisliceny was neither qualified as an expert nor was such qualification necessary. His testimony did not exceed the bounds of proper lay opinion and did not cross into the realm of expert testimony. He testified as to his personal observation of defendant's hand only. The subject matter was not beyond understanding of the average person and did not involve specialized knowledge based upon the detective's "experience, training, [and] education." N.J.R.E. 702.
We "have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. Kittrell, 279 N.J. Super. 225, 235 (App. Div. 1995) (quoting State v. LaBrutto, 114 N.J. 187, 198 (1989)). In order to admit lay opinion testimony under the rule, the trial court must determine that (1) "the witness' opinion is 'rationally based' on the witness' personal perception," and (2) "the opinion will be helpful to an understanding of the witness' testimony or the case in general." Ibid. (quoting LaBrutto, supra, 114 N.J. at 198). See also Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978), aff'd 82 N.J. 214 (1980).
Unlike State v. Timmendequas, 161 N.J. 515 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001), relied on by defendant, the witness did not conclude, as in Timmendequas, that the victim Pak inflicted the injury observed in the photograph. In Timmendequas, the expert opined that the defendant's wound was inflicted by the victim. Timmendequas, supra, 161 N.J. at 622.
We conclude that Judge Mellaci did not abuse his discretion in allowing the detective to testify, State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, sub.nom., Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001), and find no error in such ruling.
Defendant next contends that while the aggregate sentence of thirty years imprisonment with an eighty-five percent parole ineligibility was within the range of allowed sentences, his sentence was excessive within the range of extended terms.
Here, Judge Mellaci found two aggravating factors, the risk that defendant would commit another offense and the extent of his prior record and the seriousness of the offense he was convicted. The sole mitigation factor was that an extended sentence would constitute an excessive hardship. Defendant contends that his criminal history is not extensive and that even though he had several previous charges involving the unlawful possession of a weapon, none of them involved the actual use of a weapon. Furthermore, defendant urges that the judge should have given consideration to the fact that he suffered a severe injury and almost lost his life. Defendant maintains that as a result of his "near death experience" he now "feels completely different than he did before he was shot."
Defendant urges more than the law requires. Sentencing "require[s] that an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence" and that "the factfinder apply correct legal principles in exercising its discretion." State v. Dalziel, 182 N.J. 494, 501 (2005). Judge Mellaci did just that. He weighed both aggravating factors with the one mitigating factor and found that the mitigating factor should be given little weight.
Aggravating and mitigating factors are not to be assessed quantitatively, State v. Hodge, 95 N.J. 369, 378 (1984), instead New Jersey's sentencing construct "contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002). No such abuse of discretion that would shock the judicial conscience occurred here.
While a trial judge is required to justify the sentence by referencing the aggravating and mitigating factors, we will not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record. State v. Cassady, 198 N.J. 165, 168 (2009).
Judge Mellaci did in fact consider defendant's injury.
I understand you were shot and I understand you almost died.
But none of that would have happened -- in the Civil law they have a saying that goes, but for. But for you walking into that store, but for you having that handgun, but for it being loaded, but for you having pulled it at some point when you jumped across the counter or before you jumped across the counter, nothing that happened after that would have happened. Okay? So I understand what you're saying. I understand it changed your life greatly. But for you, in my estimation, I'm not asking you to agree to this, none of this would have happened.
We find no basis to alter this sentence.
In his pro se filing, defendant urges that the judge erred in admitting hearsay. We have carefully reviewed the record and conclude that defendant's pro se argument is without merit. R. 2:11-3(e)(1)(E), and requires no further discussion.
© 1992-2010 VersusLaw Inc.