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State v. Dawes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HAROLD DAWES, A/K/A SHAKIL DAWES, SHAKIL DOWES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-0255.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2010

Before Judges Lisa, Baxter and Alvarez.

The jury convicted defendant of all three counts in the indictment: (1) first-degree armed robbery, N.J.S.A. 2C:15-1;

(2) third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and (3) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. After merging count three with count one, Judge Sivilli sentenced defendant on count one to sixteen years imprisonment, subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent five-year term on count two. On appeal, defendant argues:

POINT ONE THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS OF CONFRONTATION, COMPULSORY PROCESS, DUE PROCESS AND FUNDAMENTAL FAIRNESS BY UNDULY LIMITING HIS CROSS-EXAMINATION OF THE VICTIM.

THE REQUEST FOR LEWIS'S JUVENILE RECORD OTHER IMPROPER LIMITATIONS ON CROSS-EXAMINATION PREJUDICE

POINT TWO THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE PRETRIAL SHOW-UP IDENTIFICATION MADE BY THE VICTIM MARQUES LEWIS.

STANDARD OF REVIEW

THE TRIAL COURT DID NOT PROPERLY WEIGH THE RELEVANT FACTORS.

A NEW STANDARD IS REQUIRED.

POINT THREE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND THE COURT IMPROPERLY BALANCED AGGRAVATING AND MITIGATING FACTORS AS REQUIRED BY LAW.

We reject these arguments and affirm.

On October 16, 2006, at 10:30 p.m., Marques Aquil Lewis had gotten off a bus and was walking home in Newark. He was accosted by two assailants. One of them, later identified as defendant, pointed a gun to Lewis' chest and told him not to move. Both assailants began removing items from Lewis' person. As the robbery was in progress, Newark Police Officer Silas Smith and his partner Officer Alverado were patrolling the area in a marked police vehicle. Alverado was driving. The officers observed the robbery in progress and immediately stopped the car. The area was well lit. Smith made his observations from a distance of no more than five to ten feet, observing defendant holding the gun to Lewis' chest.

Upon seeing the police, the two assailants fled, running in different directions. The police chased defendant in their vehicle. Lewis joined the pursuit after defendant on foot, all the while pointing at him and screaming "that's him, that's him. He robbed me."

About one-and-one-half blocks from the scene, following this direct pursuit, the officers tackled defendant, handcuffed him, and recovered the gun which he had discarded less than ten feet away. Defendant was then placed in the back of the police car. Lewis was on the scene and observed these events, repeatedly saying, "He robbed me."

Other officers responded to the scene. Lewis was placed in a different police car and was transported to the stationhouse. While he was being interviewed by a detective, defendant was escorted into the building past where Lewis was located, and Lewis said, "That's him right there."

At trial, Smith described the events, including the identification by Lewis of defendant at the scene of the arrest, in the back of the patrol car, and at the stationhouse. Smith and Lewis both identified defendant in the courtroom.

Defendant first argues that he was denied his rights of confrontation, compulsory process, due process and fundamental fairness because his cross-examination of the victim was unduly limited. This argument contains two components, the first consisting of denial of access to Lewis' juvenile record, and the second limiting cross-examination regarding pending robbery charges against Lewis. We find both arguments unpersuasive.

At the commencement of Lewis' testimony, the prosecutor asked a few background questions. She asked whether Lewis worked or went to school, to which he responded he was a college student and that he also worked at city hall in Newark. The prosecutor then asked whether he was involved in any other activities, to which Lewis responded that he was the founder of a non-profit organization. Defense counsel then objected and argued that the prosecutor was impermissibly eliciting testimony bolstering Lewis' character, thus opening the door to potential cross-examination about any juvenile record Lewis might have. Defense counsel requested discovery of Lewis' juvenile record, which the judge denied. The judge directed the prosecutor to move on to another line of questioning, which the prosecutor did.

The second aspect of this argument relates to a pending robbery charge, which was then in the pre-indictment stage, against Lewis. The prosecutor elicited from Lewis testimony acknowledging that he was the subject of such a charge. Lewis denied receiving any consideration with respect to that charge in exchange for his testimony in defendant's trial. Nevertheless, defense counsel quite properly cross-examined Lewis on the point, obtaining from him an acknowledgment that he was facing up to ten years in prison, and argued strongly to the jury in his summation that Lewis should not be believed in light of this charge. Defense counsel argued that the attempted portrayal of Lewis as a nice college boy who works at city hall was belied by this pending robbery charge, as well as his possession at the time of the robbery of two cell phones while walking in this high crime area of Newark. All of this was proper cross-examination and argument by the defense.

However, defense counsel wanted more. He sought to obtain discovery regarding Lewis' pending charge and to elicit testimony regarding the amount of Lewis' bail and whether Lewis had hired private counsel. Defense counsel also wanted to present evidence regarding the factual circumstances involved in Lewis' robbery charge. Defense counsel argued that presenting this expanded information would demonstrate the seriousness of the charges Lewis was facing and thus show a greater incentive on Lewis' part to trade favorable testimony in defendant's case for consideration in his own case. The judge refused to grant the requested discovery or allow the expanded cross-examination defense counsel sought, deeming it irrelevant.

Trial judges are granted broad latitude in their evidentiary rulings, and we will find error only in the case of a clear mistaken exercise of discretion. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989). There was no mistaken exercise of discretion here. The preliminary questioning of Lewis presented nothing more than the typical background information to acquaint the jury with a witness and give some context to the events involved in the crime. The judge did not err in concluding that this limited testimony did not serve to open the door to an exploration of any possible juvenile record Lewis might have had. We are well aware that in some limited circumstances evidence of a juvenile record of a witness is admissible, see Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 2d 347 (1974), but there was no basis for it in this case.

We likewise find no mistaken exercise of discretion in the refusal to allow defendant to delve more deeply into the robbery charge against Lewis. As we have stated, it was quite proper to allow the defense to cross-examine Lewis about his pending charge. See State v. Vaccaro, 142 N.J. Super. 167, 176 (App. Div.), certif. denied, 71 N.J. 518 (1976); State v. Mazur, 158 N.J. Super. 89, 103-06 (App. Div.), certif. denied, 78 N.J. 399 (1978). However, the trial court is granted broad discretion in determining how far afield defense counsel shall be permitted to wander in such cross-examination. State v. Guenther, 181 N.J. 129, 156-57 (2004). The limitations imposed here were well within the court's discretion. Indeed, allowing the defense to proceed as it sought might well have confused the jury and led to a "trial within a trial," contrary to N.J.R.E. 403.

We next consider defendant's argument that Lewis' out-of-court identifications of him at the scene of the arrest, in the patrol car, and at the stationhouse should have been suppressed. Defendant argues that these were unduly suggestive show-up identifications. Defendant argues that under recent developments in our State's jurisprudence, a new rule should be adopted barring such evidence. See State v. Adams, 194 N.J. 186, 201 (2008) (indicating that, upon a proper record, the Supreme Court may revise its approach to gauging the admissibility of show-up identifications).

We first note that these were not typical show-up procedures. These were not circumstances where, sometime after the crime, the police displayed a suspect who was in police custody to the victim, perhaps suggesting that the police believed the suspect was the perpetrator, and asked the victim to make an identification. Nor was it a situation where a single photograph was used in this context. Indeed, the police witnessed the crime while it was happening, and Smith made a clear observation of defendant as the armed perpetrator. Then, a direct pursuit occurred in which Lewis participated, and during which Lewis continually pointed to defendant as the person who had robbed him. After a very brief direct pursuit, the police apprehended, handcuffed and arrested defendant. This was all done in Lewis' presence, and Lewis continued to identify defendant as the robber. Defendant was placed in the patrol car in Lewis' presence. Therefore, throughout these events defendant was continually in Lewis' view (and the view of the police). Defendant was not presented to the victim sometime after the crime and sometime after being out of the view of the victim. Likewise, although there was a brief hiatus before the stationhouse encounter, defendant came into Lewis' view by happenstance as he was being escorted into the building and passed by the location where Lewis was being interviewed. There was no suggestiveness by the police that prompted Lewis' rather spontaneous exclamation, in which he stated, "That's him right there."

In our view, these out-of-court identifications do not bear the typical characteristics of show-up procedures that are fraught with suggestiveness and the strong potential for unreliability. Applying the traditional standards for evaluating admissibility of out-of-court identifications, see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977), we have no hesitancy in accepting the trial court's conclusion that the circumstances were not impermissibly suggestive and the identifications were reliable.

Finally, defendant argues that his sentence is excessive. We are satisfied that the judge's findings regarding aggravating and mitigating factors were well supported by the record, that the judge correctly applied the sentencing principles enunciated in the Code of Criminal Justice, and that the sentence imposed was not excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

20100309

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