July 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK TOLBERT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-10-1043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Carchman and Parrillo.
Defendant, Mark Tolbert, after a trial by jury, was convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree thefts by unlawful taking, N.J.S.A. 2C:20-3a; and one count of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial judge, after appropriate mergers, imposed an aggregate term of twenty-five years imprisonment with an eighty-five percent disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3a.*fn1
Defendant appeals. We affirm.
The following facts are relevant to our consideration of defendant's appeal. On August 16, 2004, at approximately 12:00 a.m., Sekhou Cummings was in line waiting to enter the Sambucca Night Club in Trenton when defendant and co-defendant, Norman Murphy, approached him and asked him for five dollars; Cummings refused. The men repeated their request, and Cummings complied, handing them five dollars. The men, however, pressed Cummings for another five dollars. When Cummings attempted to walk away, Murphy pulled out a gun and pointed it at Cummings' chest. Defendant proceeded to take money and a cell phone from Cummings' pockets while Murphy yanked off a white-gold chain from Cummings' neck, which fell to the ground. While the men bent down to retrieve the chain, Cummings fled in the direction of his parked car where he saw a police car patrolling the area. He approached the car and advised Officer Israel Bonilla and Officer Sheffield*fn2, of the Trenton Police Department, that he had just been robbed by two black males wearing white t-shirts, one tall and thin and the other short and stocky. Cummings entered the patrol car and drove with the officers back toward the nightclub.
Shortly after Cummings was robbed, sometime between 12:00 and 12:15 a.m., Kenneth Radcliffe was walking through the Auto Zone parking lot in Trenton with three companions heading to the Sambucca Club. Defendant and Murphy approached Radcliffe, who described them as wearing white t-shirts, one short and stocky, and the other tall and thin. Defendant asked Radcliffe for five dollars, pulling up his shirt and displaying a gun tucked in the waistband of his pants, telling Radcliffe that he did not "want to have to paint [his] shirt red." Radcliffe attempted to walk away from defendant, but defendant pulled his gun from his waistband and pointed it at Radcliffe's chest. Radcliffe handed defendant forty dollars from his wallet; one of Radcliffe's friends also handed defendant ten dollars. Officers Bonilla and Sheffield, having been directed to that general area by Cummings, arrived at the scene.
When Cummings saw defendant and Murphy, he shouted "that's them, that's them". Bonilla then observed two men that fit the description provided by Cummings. The officers exited their vehicle and approached the two men, ordering defendant to show his hands. Defendant refused to comply, ran behind a car parked in the lot and appeared to be attempting to hide the gun behind the vehicle. Bonilla then arrested defendant, and Sheffield located a gun under the parked car. Bonilla searched defendant and found U.S. currency and a chain with a pendant in defendant's pocket. Sheffield, upon her search of Murphy following his arrest, retrieved a cell phone from him. Once defendant and Murphy were transported back to police headquarters, Cummings identified the chain and cell phone as the ones that were taken from him earlier that evening.
During trial, the jury heard testimony from Cummings, Radcliffe, Officer Bonilla and Murphy. Cummings, Radcliffe and Bonilla all identified defendant as the man who had committed the August 16 robberies. Defendant focused his defense on the theory of misidentification, noting certain inconsistencies in the description provided by Cummings such as failure to initially note that defendant had facial hair and stating that defendant was wearing long pants when Bonilla testified he was found wearing shorts.
While cross-examining Radcliffe, defense counsel inquired as to why his companions from the night of the robbery were not present in court. Radcliffe responded that as his friends were from Detroit he "did not want them coming back all those miles to come here for this.... They have a life to live. They're states away. Why have them come here for this?"
Defense counsel responded by pointing out that the State could have provided Radcliffe's companions with transportation to the trial. The judge then interjected:
And the comment about the Prosecutor's Office arranging the transportation here the Court will address that later. Applications can be made by both the State and the defendant in an attempt to get a witness here from another state. The fact is they aren't here and they're not testifying. Let's move on. The prosecutor has done nothing wrong in that respect.
[Defense Counsel]: Nor is anybody suggesting that, Your Honor. It's the witness who suggested he's here to protect his buddies somehow.
[The Court]:... raising the issue before the jury plants the seed. The Court's informed the jury that it should draw no adverse inference from that question.
No objection followed.
After the presentation of all testimony and evidence, the judge delivered the jury charge.
The defendants, as part of their general denial of guilt, contend that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that they are the persons who committed the alleged offenses. The burden of proving the identity of the persons who committed the crimes is upon the State. For you to find either or both of the defendants guilty, the State must prove beyond a reasonable doubt that either or both of the defendants committed the crimes charged. The defendants have neither the burden nor the duty to show that the crimes, if committed, were committed by someone else or to prove the identity of that other person. You must determine, therefore, not only whether the State has proven beyond a reasonable doubt that the defendants are the persons who committed the crime or crimes.
The State has presented the testimony of  Cummings and  Radcliffe. They identified the defendants in court as the persons who committed the offenses charged. The State also presented testimony that on a prior occasion, before this trial, at the time of arrest, they identified the defendants as the persons who committed the crimes charged. According to the witnesses, their identifications of the defendants were based upon observations and perceptions at the time the offenses were being committed. It is your function to determine whether the witnesses' identifications of the defendants are reliable and believable, or whether they are based on a mistake or for any reason are not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that one or both of these defendants are persons who committed the offenses charged.
In evaluating identifications, you should consider the observations and perceptions on which the identifications are based, and the witness' ability to make those observations and perceptions. If you determine that an out-of-court identification is not reliable, you may still consider the witness'... in-court identification of the defendant, if you find it to be reliable.
The ultimate issue of trustworthiness of both the in-court and the out-of-court identifications are for you to decide. To decide whether the identifications are for you to decide. To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that one or both of the defendants are persons who committed the offenses charged, you should evaluate the testimony of the witnesses in light of the factors for considering credibility which the Court has already outlined for you.
In addition, you may consider the following: The witness' opportunity to view the person who committed the offense at the time of the offense; the witness' degree of attention on the perpetrators when they observed the crime being committed; the accuracy of any description the witnesses gave prior to identifying the perpetrators the degree of certainty expressed by the witness or witnesses in making any identifications; the length of time between the witness' observation of the offenses and the first identification; discrepancies or inconsistencies between identifications, if any; the circumstance under which an out-of-court identification was made; and any other factors based on evidence or lack of evidence in the case which you consider relevant to your determination whether the identifications are reliable.
If after a consideration of all of the evidence, you determine that the State has not proven beyond a reasonable doubt either or both defendants were the persons who committed the offenses, then you must find the defendant or defendants not guilty.
If, on the other hand, after a consideration of the evidence, you are convinced beyond a reasonable doubt that either or both of the defendants were correctly identified, you will then consider whether the State has proven each and every element of the crimes charged beyond a reasonable doubt. [(Emphasis added).]
On appeal, defendant raises the following issues:
POINT I: THE TRIAL JUDGE'S COMMENTS REGARDING DEFENDANT'S EQUAL ABILITY TO CALL A WITNESS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND IMPERMISSIBLY PREJUDICED DEFEDANT BY IMPLYING A BURDEN TO PRODUCE A WITNESS AND REQUIRES REVERSAL OF THE CONVICTIONS INVOLVING RADCLIFFE. N.J. CONST. ART. I, PARA. 1; U.S. CONST. AMEND. 14 (Not Raised Below)
POINT II: THE JURY CHARGE RELATING TO IDENTIFICATION WAS ERRONEOUS AND DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. N.J. CONST. ART. I, PARA. 1; U.S. CONST. AMENDS. 6, 14. (Not Raised Below)
POINT III: THE EXTENDED TERM SENTENCE IMPOSED ON THE ROBEERY CONVICTION WAS EXCESSIVE.
We address defendant's arguments seriatim.
Generally, we will not consider issues that were not presented to the trial court, State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)), unless they are jurisdictional in nature or substantially implicate the public interest. New Jersey Div. of Youth and Family Servs. v. M.C., 201 N.J. 328, 339 (2010). Such error, if any, will be evaluated under the plain error standard of Rule 2:10-2, and will not warrant reversal on appeal unless it was clearly capable of producing an unjust result. "The harmless error standard thus requires that there be 'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
Here, defendant concedes that he failed to object to both the judge's comments referencing nonproduction of Radcliffe's companions as witnesses and the jury instructions regarding identification. He urges plain error.
Specifically, defendant argues that the judge's comments explaining Radcliffe's companions not being present or called as witnesses implied that defendant had the burden of producing the witnesses, and this implication violated defendant's due process rights. We reject this argument.
The judge's comments were targeted merely to neutralize what he considered improper remarks by defense counsel suggesting that Radcliffe's companions were purposely not produced as witnesses as their testimony may have been damaging to the State's case. See State v. Vallejo, 198 N.J. 122, 135 (2009) (stressing the appropriateness, even necessity, of providing targeted curative instructions to alleviate any potential prejudice introduced at trial by way of testimony or evidence). We fail to perceive how the judge's comments suggested that "if [Radcliffe's companions] were called, their testimony would have corroborated Radcliffe's."
Defendant also challenges the judge's jury instructions regarding identification. According to defendant, the generality of the instructions, which did not "mold the law to the facts of the case" violated defendant's due process rights. More particularly, defendant alleges "the court highlighted only the testimony of the State's witnesses."
Clear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error, warranting reversal. Das v. Thani, 171 N.J. 518, 527 (2002) (citing State v. Robinson, 165 N.J. 32, 40 (2000)). "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.... [T]he court must explain the controlling legal principles and the questions the jury is to decide." State v. Martin, 119 N.J. 2, 15 (1990).
However, when an error in a jury charge is raised on appeal, the charge must be read as a whole; we will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). We are required to consider "in the context of the entire case, whether the error was clearly capable of affecting the verdict or the sentence." State v. Bey, 129 N.J. 557, 624-25 (1992) (internal quotation marks omitted). Defendant is entitled to a fair trial, not a perfect one. State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed. 2d 231 (1971).
Defendant claims the judge was obligated to explicitly note that the jury had heard testimony which suggested the defense's theory of misidentification of defendant. We agree that a key issue in this case was identification. It was the major, if not the sole, theory proffered by the defense. However, the judge's instructions were sufficiently adequate and accurate to provide the jury with guidance in its deliberation. The issue of identification was presented to the jury, outlining both the State's and the defense's positions, as was witness credibility. Furthermore, the jury was emphatically and repeatedly instructed that the burden was on the State to prove its case beyond a reasonable doubt. State v. Green, 86 N.J. 281, 293 (1981). Three separate witnesses identified defendant as the robber. This amply supported defendant's conviction. We find no plain error or conduct likely to cause an unjust result. We find no error in the instruction.
Finally, defendant argues that the trial judge incorrectly found and weighed aggravating and mitigating factors at sentencing. The judge found three aggravating factors: the risk of committing future crimes, extent of prior record and the need to deter; it discussed hardship as a mitigating factor but ultimately rejected it, finding it inapplicable. According to defendant, the record amply supported the finding of excessive hardship as a mitigating factor as defendant had four children. Defendant claims that if the proper aggravating and mitigating factors were weighed and considered, he would have received a lesser sentence.
In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework. We will uphold a sentence as long as the exercise of discretion was based upon findings of fact that are grounded in competent, reasonably credible evidence, State v. Johnson, 42 N.J. 146, 162 (1964); see also N.J.S.A. 2C:44-7, and if the judge applied correct legal principles in exercising its discretion. Sentences will be modified only if the record reveals such a clear error of judgment that it shocks the judicial conscience. State v. Whitaker, 79 N.J. 503, 512 (1979). This is a standard of great deference and "[j]udges who exercise discretion and comply with the principles of sentencing remain free from the fear of 'second guessing.'" State v. Megargel, 143 N.J. 484, 494 (1996).
Here, the finding of the aggravating factors was based upon competent credible evidence in the record. The judge also considered the hardship factor and dismissed it, finding that as none of defendant's children lived with him and defendant was already $12,000 in arrears on child support for one child, it was difficult to see how defendant's assistance was indispensable to the support and caretaking of his children.