March 31, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERNEST HOUSEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0850.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Lisa and Alvarez.
Defendant Ernest Housey was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); fourth-degree aggravated assault by pointing of a firearm, N.J.S.A. 2C:12-1b(4) (count five); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); third-degree unlawful possession of a firearm, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (count eight); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (count nine).*fn1
Counts three and four, also first-degree robberies, were dismissed by the State because the victims failed to appear at trial.
On June 1, 2007, defendant was sentenced on count one to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, to thirty years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A consecutive ten-year sentence with five years of parole ineligibility was imposed on count nine. The remaining terms of imprisonment were all to be served concurrent to count one, namely, twenty years subject to NERA on count two, eighteen months with eighteen months of parole ineligibility on count five, five years subject to two and one-half years of parole ineligibility on count six, and five years subject to two and one-half years of parole ineligibility on count eight. Count seven was merged into counts one and two. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm.
On December 23, 2004, defendant, known as "Chocolate," played cards for several hours with a group which included Arthur Pough, Lonnie Lee, and Louis Gilchrist. The location of the game was a neighborhood garage that operated as a clubhouse.
The following afternoon, December 24, Gilchrist and Lee were at the garage in the company of a fourth man, named Joseph Nichols, when defendant entered, displayed a gun, and said, "this is a stick-up." Everyone assumed it was a prank and told defendant to "stop playing around." Defendant laughed and said, "I was just joking." He pocketed the gun, sat down with the others, and left shortly thereafter.
At around 7:00 p.m. that same day, December 24, approximately twenty people were playing cards in the garage, including Pough, Lee, Gilchrist, and Nichols. While Pough was outside talking to, among others, a person known only as "Brenton," he looked up and saw two men approaching, whose faces were covered by ski masks. One pointed a gun at Brenton, and instructed him to say his name at the door so that the robbers could gain entry into the garage.
At that moment, Gilchrist walked out of the garage and saw the two masked men. The gun was turned to him, and he was told to back up. When he failed to respond quickly, he was hit in the face with the butt of the gun. The robbers went inside.
Pough immediately called 9-1-1 on his cell phone. As he waited for police across the street, he saw the men exit the garage, remove their masks and walk away. He followed, recognizing defendant as the person with whom he had played cards the night before for several hours. When police drove down the street, Pough saw defendant throw the gun into a field where it was later recovered. Pough gave a statement on December 28 and selected defendant's picture from a photo array on December 30. At trial, he identified defendant as the man holding the gun during the robbery.
Lee testified that when the masked men entered the garage, one said "this is a robbery. For real." Later in the trial, he testified that one of the men said "I'm for real this time." The robbers collected cash, valuables, and everyone's wallets, placed them in a bag and left. Lee recognized the person who wielded the gun during the robbery by his build and his clothing as defendant, whom he remembered from his visit to the garage earlier that day and whom he identified during the trial as the perpetrator.
Nichols also testified that the individual holding the gun had the same build and wore the same clothes as defendant had earlier in the day, and that the gun appeared to be the same one wielded during the seeming practical joke. Nichols reported that the men said that "it's a stick-up." He acknowledged that people in the garage had talked about the robbery the day after it happened. Nichols identified defendant in court as the individual who carried the gun.
Days later, Robert Watson, who was at the garage during the robbery, selected defendant's picture from a photo array and he was able to identify defendant by name. Watson, who was named in one of the two dismissed counts, did not appear for trial and was not mentioned in any fashion in front of the jury.
At defendant's sentence, the court reviewed his criminal and personal history, age, and other circumstances in the context of the discretionary extended term application made by the State. The judge noted that defendant had been convicted of seven prior indictable charges at the time the robbery was committed. He was then thirty-five years old. The judge opined that defendant's afternoon visit, during which he only pretended to commit an armed robbery, was intended to test the mettle of the group, who were older men, and whether they would put up much resistance. The court found no mitigating factors and found multiple aggravating factors. They included "the gravity and seriousness of the harm inflicted on the victim," N.J.S.A. 2C:44-1a(2); the risk defendant would reoffend, N.J.S.A. 2C:44-1a(3); the extent of his prior criminal history, N.J.S.A. 2C:44-1a(6);*fn2 the need to deter, N.J.S.A. 2C:44-1a(9); and that defendant committed the offense against a person whom he knew was sixty years of age or older, N.J.S.A. 2C:44-1a(12). The judge conducted a final sentencing proceeding on June 7, 2007, as it was brought to his attention that he had overlooked the requirement that he impose the statutorily required eighteen months of parole ineligibility on the fourth-degree aggravated assault.
On appeal, defendant raises the following points:
POINT I THE TRIAL COURT ERRED IN ADMINISTERING THE IDENTIFICATION CHARGE, WHICH BECAUSE IT IS THE KEY ISSUE IN THE CASE, CONSTITUTED HARMFUL ERROR AND WARRANTS A REVERSAL OF THE DEFENDANT'S CONVICTION AND A NEW TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1, ¶¶ 1, 10. (Not Raised Below).
POINT II THE COURT ERRED IN ALLOWING THE IN-COURT IDENTIFICATION OF THE DEFENDANT BY TWO WITNESSES WHO ONLY SAW THE ROBBER WHILE HE WAS WEARING A MASK. IN ADDITION, THE EFFECT OF CO-WITNESS CONTAMINATION RENDERED BOTH THE OUT-OF-COURT AND THE IN-COURT IDENTIFICATIONS UNRELIABLE. DEFENDANT'S CONVICTION MUST BE REVERSED AND THE MATTER REMANDED FOR A HEARING PURSUANT TO STATE V. CHEN.[*fn3 ]
THE COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE UNRELIABLE NATURE OF TESTIMONY ATTESTING TO ORAL STATEMENTS MADE BY THE DEFENDANT SUA SPONTE. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 9, 10. (Not raised below.)
THE COURT ABUSED ITS DISCRETION GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM.
In his pro se brief, defendant raises these additional points:
POINT I THE STATE'S PRESENTATION OF HEARSAY TO THE EFFECT THAT DEFENDANT'S PHOTOGRAPH WAS INCLUDED IN THE ARRAY SHOWN TO AN EYEWITNESS BECAUSE HE HAD BEEN IMPLICATED IN THE ROBBERY BY A NON-TESTIFYING WITNESS (ROBERT WATSON), VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT II DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO BE PRESENT AT HIS TRIAL WAS VIOLATED WHEN THE TRIAL COURT ENGAGED IN AN EX PARTE OFF-THE-RECORD COMMUNICATION WITH THE DELIBERATING JURY (Not Raised Below).
Defendant contends that the court erred in administering the identification charge, and that the error necessitates reversal and a new trial. The identification Model Jury Charge given on April 10, 2007, the last day of trial on the first counts, was the instruction in use prior to publication on May 21, 2007, of State v. Romero, 191 N.J. 59 (2007).
In Romero, the Court directed the Model Jury Charge Committee to revise the identification instruction to include additional language focusing the jury's attention on the fact that "a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification." Id. at 75. The Court stated that social science research documenting the "fallibility of eyewitness identifications" warranted the change, but that the prior Model Charge adequately cautioned juries about the factors to consider in assessing identification testimony. Ibid. Accordingly, Romero's conviction was not reversed although the charge was modified prospectively. Ibid. Therefore, Romero is not a basis to reverse defendant's conviction. Failure to give an instruction not in existence until many weeks later, and modified prospectively only, is not error.
Defendant also contends the court erred by permitting the identification of defendant by two witnesses who only saw their assailant while he was wearing a ski mask. Given that the two witnesses, Nichols and Lee, recognized defendant as the perpetrator based on his build and the clothing he wore earlier in the day, the record does not support the assertion. It was not error for this testimony to be presented to the jury.
Defendant further contends that there was "co-witness contamination" because the occupants of the garage spoke among themselves about the crime and the identity of the perpetrator the following day. He claims that the identification should have been barred for that reason alone. Because of the admission of this tainted testimony, defendant asserts, his conviction must be reversed and the matter remanded for a pretrial hearing pursuant to State v. Chen, supra, 402 N.J. Super. 62.
State v. Chen issued on July 31, 2008, more than a year after defendant's sentence on June 17, 2007. This contention must be reviewed pursuant to the plain error standard: it will not constitute a basis for reversal "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; State v. Savage, 172 N.J. 374, 387 (2002).
In State v. Chen, the victim on several occasions was shown photographs of the defendant, the person whom her husband believed to be the assailant, although he was not present during the commission of the crime. State v. Chen, supra, 402 N.J. Super. at 71. The victim's sister even altered the photographs to portray the defendant wearing eyeglasses similar to those worn by the victim's attacker. Ibid. Therefore we determined that a preliminary hearing was required "to assess the reliability of identification testimony based on a claim of suggestive conduct by private actors" which might result in a "substantial likelihood of misidentification." Id. at 84. Such hearings are only required, however, when "the request is supported by evidence of "'highly suggestive words or conduct that pose a significant risk of misidentification.'" Ibid.
There are no such proofs of highly suggestive words or conduct here. Other than the acknowledgment by one witness that the card players at the garage talked about the robbery after it occurred, not surprising given the nature of the event, there is no hint of any improper "co-witness contamination."
Here, three eyewitnesses identified defendant as the gunman based on their observations of his clothing and physical features. Pough was able to identify defendant as the gunman based on his observation of defendant's face. It is noteworthy that when Pough saw defendant outside the garage, he thought he could not be seen by the perpetrators. Hence, the element of fear that has been singled out as contributing to eyewitness misidentification was simply missing. See Charles A. Morgan, III, et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry, 265 (2004); Gary L. Wells and Dean S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1 (2009). Pough stated unequivocally that the person who held the gun during the robbery was the same person he had played cards with for several hours the day before. Even if discussions took place among the men, in the absence of any specific additional facts, their conversations were not sufficient to create a "substantial likelihood of misidentification." No State v. Chen hearing was therefore necessary.
According to defendant, the court also erred by not providing the jury with the Kociolek*fn4 Model Jury Charge as to the oral statements he allegedly made. That instruction warns the jury to carefully weigh statements made by a defendant because of the "risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used. . . ." Model Jury Charge (Criminal), "Statements of Defendant - Allegedly Made" (2004). The instruction goes on to state that the "specific words used and ability to remember" are key to the understanding of any oral communication because "the presence, or absence, or change of a single word may substantially change the true meaning of even the shortest sentence." Ibid. This argument must also be assessed pursuant to the plain error standard. R. 2:10-2; State v. Savage, supra, 172 N.J. at 387.
Failure to administer the Kociolek instruction "is not reversible error per se" and "must be viewed within the factual context of the case and the charge as a whole to determine whether its omission was capable of producing an unjust result." State v. Crumb, 307 N.J. Super. 204, 250-51 (App. Div. 1997) (citations omitted).
The gravamen of defendant's objection is that the jury heard Lee testify, without a Kociolek instruction, to three different versions of a statement made by one of the perpetrators on the night of the robbery, either "this is a robbery. For real," "[l]ook, see this [gun], I'm for real this time," or "[t]his is for real this time. For real." Nichols, however, testified the gunman only said "it's a stick-up."
Defendant argues this difference is crucial because Lee and Nichols were both present at the garage earlier in the afternoon when defendant entered, drew a gun, and said "this is a stick-up." Lee's testimony that the masked man said the robbery was "for real" was certainly damning; it could only be understood to be a reference to the practical joke that defendant played earlier in the day. Since Nichols recalled the phrase differently, so goes the argument, the judge was required to have administered the Kociolek instruction.
We do not agree that the discrepancy between Lee's recollection and Nichols's recollection of the statements made by the perpetrators necessitated the instruction. The court gave the Model Jury Charge as to credibility, drawing the jury's attention to the factors it should consider in determining whether a statement is true, and the weight to accord to it. That instruction was a sufficient guide for the jury. The statements were inculpatory, but the jury could have readily concluded defendant was guilty of the charged crimes because defendant was identified by Pough, Lee, and Nichols. The omission was not error which would lead to an unjust result. The discrepancy between Lee and Nichols's testimony was of little consequence; Lee's recollection was only one of several proofs presented by the State.
Defendant next asserts that the court abused its discretion when it granted the State's motion for extended term sentence pursuant to N.J.S.A. 2C:44-3a. Defendant does not challenge his threshold eligibility. See N.J.S.A. 2C:44-3a. He complains that the court's sentencing was excessive in light of the imposition of a ten-year consecutive term for the offense of certain persons not to possess. In our view, this argument confuses the aim of the extended term statute and the requisite analysis for imposition of a consecutive term.
A persistent offender, as defined in the statute, is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [Ibid.]
Defendant, who was thirty-five when the offense was committed, had seven prior indictable convictions. He acknowledged being a drug dealer although he denied having committed this crime. Nothing about this offense or about defendant's life circumstances justified the finding of any mitigating factors. Accordingly, imposition of an extended term sentence was unassailable. The judge, in sentencing defendant, stated that the extended term was necessary in order to protect the public, a reasonable exercise of discretion. See State v. Pierce, 188 N.J. 155, 170 (2006).
The fact that the court chose to impose a consecutive sentence for the second-degree crime of certain persons not to possess does not undermine the legitimate calculation resulting in extended term sentencing. Counts one and two named two separate victims, yet the court sentenced defendant concurrently as to the two robberies. The offense of certain persons not to possess was factually independent of the robberies. Even if defendant had not committed the robberies, his possession of a gun as a person convicted of certain enumerated crimes satisfied the statutory elements. N.J.S.A. 2C:39-7b. Although the judge did not expressly state his reasons for the sentence, he did extensively discuss defendant's crimes and personal circumstances earlier in the sentencing proceeding, and "the facts . . . leave little doubt as to the propriety of the sentence." It will therefore be affirmed. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003). Nothing in this record shocks our conscience. See State v. Roth, 95 N.J. 334, 363-64 (1984).
Additionally, defendant asserts that the court did not properly support its findings of aggravating and mitigating factors with substantial credible evidence. The court briefly listed the aggravating factors at the end of the sentencing proceeding. The judge's earlier discussion supported the finding of aggravating factors, based on defendant's conduct, background, and criminal history. As a result, we are satisfied that the aggravating factors were based upon substantial credible evidence and we will not disturb them. State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). See also State v. Bieniek, 200 N.J. 601, 608-09 (2010).
Defendant claims in his pro se submission that Watson's identification violated his right to confront witnesses and to a fair trial. The record indicates that Watson's identification of defendant by name is the reason defendant's photograph was included in the photo array from which the eyewitnesses selected his picture. Watson was never referred to in the presence of the jury. His name was not mentioned by the State. There is no factual support for this claim.
Defendant also asserts in his pro se brief that the trial court engaged in ex parte communications with the deliberating jury. Apparently, this claim results from the judge's comment that, should the jury request an easel, he would make one available without calling everyone back into the courtroom. The record does not indicate if the request was ever made. There is no evidence of any communication between the judge and the jury outside the courtroom. Even if the jury asked for an easel, and this was not brought to the attention of counsel, it does not constitute reversible error.