February 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY L. KEETS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Alvarez and Coburn.
Defendant Troy L. Keets was found guilty by a jury of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:15-1a(2), but acquitted of first-degree robbery, N.J.S.A. 2C:15-1a(2). On February 2, 2007, defendant was sentenced to seven years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.
The facts developed during the trial can be briefly summarized. On June 24, 2004, at approximately 10:00 p.m., Nicole Hoffman, the administrative manager of an ULTA cosmetics store, and Tanya Wood, an employee, began to close up for the day. The store is located in a strip mall on Route 22 in Watchung. Hoffman had actually closed the registers at 9:00, however, there was a customer who was working with a hair stylist at the back and they did not leave until approximately 9:30. After the stylist and her customer left, Wood wanted to smoke a cigarette, so Hoffman walked her to the front door and unlocked it. In accord with store policy, Wood was required to stand right outside the door as she smoked and the door was left unlocked. Hoffman finished refilling the registers with the designated amount of cash, $200, for the following day. Immediately prior to going out to smoke a cigarette, Wood had made a quick phone call to "her ride."
While Hoffman was printing out paperwork from a salon register, she heard footsteps, looked up and saw a man wearing a ski mask running towards her, pointing a gun. He shouted at her to get down and she dropped to her knees. Her initial reaction was that this had to be a practical joke organized by Wood, but when she looked at her and saw that she seemed very afraid, she realized the robbery was real. The man ran around her and held the gun with both hands to the back of her head. He demanded to know where the money and the safe were, and dragged her by the back of the neck in the direction of the nearest register. She saw a second person running past her towards Wood and then a third man ran in the same direction. The armed assailant told Hoffman to open the safe and not be "stupid"; she immediately opened it and he began to take out the cash. To the best of her recollection, the robbers put the money from the safe into the pockets of their jeans. The armed man asked her if there was a video surveillance system, and she told him it was in the office. He pulled her up and pushed her towards the back of the store where the office was located. They walked by the second man who had helped the armed assailant empty the drawers; as she passed, Hoffman saw Wood and the third man in one of the last aisles. All the men followed as Hoffman was dragged towards the office, and once there Hoffman and Wood were cuffed to a filing cabinet. The robbers told the women not to call the police, and ripped the phone and the fax machine out of the wall. They removed the security tape from the VCR machine on their way out.
After they left, Hoffman took her cell phone out from her apron pocket. Wood took the phone from her and said she would call police, but according to Hoffman she was "just hitting buttons." Hoffman grabbed the phone back and dialed the Watchung police department, whose number was posted on the office wall.
Watchung Police Department Detective William Kelly was the first to arrive on the scene at 10:07 p.m. He saw no signs of forced entry and noted that the front door was unlocked. He headed into the office when he heard women's voices in the rear of the store, and was able to unlock the cuffs with a screwdriver. Hoffman and Wood were taken to the police station; Kelly almost immediately suspected that the robbery was an inside job because of the timing of the robbery and the fact the door was unlocked. He also opined that Hoffman seemed substantially more frightened than Wood and that Wood had volunteered statements to the effect that she must have forgotten to lock the door or that she was the last one to lock the door.
When defendant came to the police station to pick Wood up, as he was her "ride," Kelly tape-recorded his interview with him as to whether he had any information about the incident. Kelly then went to the room where Hoffman was being interviewed and told her that he had a tape that he wanted her to hear. He instructed her that if she recognized the voice, she should let him know. Once the tape began to play, Hoffman immediately became visibly upset; she was shaking, crying and appeared very frightened. Hoffman told Kelly that she was 99.9 percent sure that the person whose voice was on the tape was involved in the robbery.
On July 2, 2004, Kelly again met with Wood, who had been given her Miranda*fn1 warnings. During this interview, she implicated defendant and two others, O'Shea Clarke and Tysean Clarke. The Clarkes were arrested that evening; on July 5, defendant turned himself in.
After being given his Miranda warnings, defendant initially refused to speak to officers. As Kelly was transporting him to the county jail, defendant asked Kelly if he could speak with him "off the record." Kelly responded that there were no offthe-record conversations, and reminded defendant that Miranda still applied. Defendant nonetheless told Kelly that if he and Wood "were talking on the phone in reference to this robbery he would deal with a conspiracy charge later but he was not there the night of the robbery." Defendant indicated that he would give Kelly the name of a third person involved in the robbery, and he talked about the Clarke brothers' role in the crime. He was reluctant to name the third person, as he did not "want to be considered a snitch."
Wood eventually entered a guilty plea to conspiracy to commit robbery and received a five-year state prison sentence. She implicated defendant in statements made both prior to the entry of her plea and when she established the factual basis for her guilty plea. Wood testified at trial that she was romantically involved with defendant from April 2004 to October 2005, and that she still loved him. She stated that prior to the robbery she spent time socially with not only defendant, but the Clarke brothers as well, and that the Clarke brothers frequently brought up the topic of finding "somewhere to rob."
On the night of the robbery, Wood had a conversation with defendant during which she agreed to leave the front door unlocked so that the Clarke brothers could enter the store and take the money. On direct, Wood acknowledged that all three men were masked and wore black clothing, but she said that she was able to identify who was present from their voices, and that defendant was a participant. Wood admitted that she initially implicated only the Clarke brothers, not defendant, because she was frightened. Wood also testified that she received a share of the robbery proceeds from one of the Clarke brothers. Four days after she entered her guilty plea, Wood said defendant told her she "was going to die."
On cross-examination, Wood denied being afraid of defendant or his threats. While he was in jail, she visited him, wrote to him and sent him money. The day prior to her trial testimony, during a hearing conducted out of the presence of the jury,*fn2 Wood had testified that a man named Dwayne Durant, not defendant, was the third perpetrator. She reiterated this claim when cross-examined in front of the jury. When asked why she changed her story from one day to the next, Wood said she had no answer.
On appeal, defendant raises the following contentions:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT VOICE IDENTIFICATION, WHICH WAS OBTAINED IN A PROCEDURE AKIN TO A "SHOW-UP", IN VIOLATION OF THE ATTORNEY GENERAL'S GUIDELINES AND THE DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (U.S. CONST., AMENDS. VI; XIV; N.J. CONST., ART. I PAR. 10).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Defendant's first point is that the court erred in allowing the State to present evidence to the jury that Hoffman identified defendant's voice on the tape played to her at the station. We consider the argument to lack merit for the obvious reason that the jury only convicted defendant of conspiracy to commit robbery, not robbery itself. As the State correctly points out in its brief, had the jury accepted Hoffman's identification of defendant's voice at face value, defendant would have been convicted of first-degree armed robbery, not just second-degree conspiracy.
In any event, the admission of the voice recording was not error. Generally, admissions of voice identifications are subject to the same test of suggestiveness and reliability as are any other identifications. State v. Clausell, 121 N.J. 298, 328 (1990) (citing State v. Johnson, 138 N.J. Super. 579, 582 (App. Div.), certif. denied, 71 N.J. 340 (1976)). In Clausell, the Court concluded there was error in the trial court's admission of an in-court identification of the defendant's voice because there had not been an out-of-court identification, twenty months had lapsed since the commission of the crime, the victim had heard defendant speak only two words during the incident, and the same two words were used to make the in-court identification. In contrast, in State v. Gallagher, 286 N.J. Super. 1 (App. Div. 1995), we found no error in the admission of a victim's voice identification where the sample voices in the exemplars were reading nursery rhymes rather than repeating the words used during the crime. That victim also became very upset upon hearing the defendant's voice, as was Hoffman in this case. Id. at 12.
The totality of the circumstances here makes the identification reliable and the admission proper. Defendant was speaking different words than those spoken by the robbers. The voice identification was made within four hours of the incident. The victim became visibly upset upon hearing the recording. Kelly did not tell Hoffman that she was about to hear a suspect's voice. Given that the voice identification process was not impermissibly suggestive, the identification was not impermissibly tainted. Its admission in the trial was therefore not error. Even if error, the admission was harmless because defendant was not convicted of the substantive crime, only of the crime of conspiracy.
Defendant's second contention, that the sentence was manifestly excessive, also lacks merit. Defendant, who was twenty-three when sentenced, had been adjudicated delinquent on two occasions, was granted a conditional discharge in municipal court for possession of marijuana the prior year, and incurred indictable drug charges subsequent to this incident which were pending at the time of his sentence. Defendant also had an outstanding municipal court matter. Hence, the court found aggravating factor three, the risk that defendant will commit other crimes based on his prior criminal history, N.J.S.A. 2C:44-1a(3); factor six, the extent of his prior history, N.J.S.A. 2C:44-1a(6); and factor nine, the need to deter him and others from violating the law, N.J.S.A. 2C:44-1a(9). No mitigating factors were found.
In our view, the court's finding of aggravating factors is based on substantial evidence on the record. Despite this potentially more damaging assessment of aggravating factors, the sentence imposed was to less than half of the permissible range. As long as a sentence is based on "competent, reasonably credible evidence" and the appropriate legal standards are applied, no modification of a sentence is necessary or appropriate. State v. Roth, 95 N.J. 334, 363 (1979) (citations omitted). No clear error of judgment occurred here such as "shocks the judicial conscience." Id. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).