July 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARTY ALSTON, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXIS ANDERSON, A/K/A ALEXANDER ANDERSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Nos. 06-02-0263 and 05-03-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2010
Before Judges Wefing, Messano and LeWinn.
A jury convicted defendant Marty Alston of first-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3a; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Two counts of aggravated assault, one in the third degree and one in the fourth degree, were dismissed. Alston was tried with his co-defendant, Alexis Anderson, who was convicted of the same offenses. The trial court sentenced Alston to an aggregate seventeen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and Anderson to an aggregate twenty years in prison, again subject to NERA. Alston and Anderson have each appealed their convictions and sentences. Because these appeals arise out of the same factual complex and raise certain of the same issues, we consolidate them for purposes of this opinion. After reviewing the record in light of the contentions presented on appeal, we affirm but remand with respect to defendant Anderson to correct the judgment of conviction which incorrectly lists N.J.S.A. 2C:12-1b(4) rather than N.J.S.A. 2C:15-1.
In the late afternoon of October 13, 2005, Shawn Riley was walking down the street in Trenton when a green minivan pulled up alongside him. Three men jumped out of the van, holding guns, and began to beat Riley. He was pushed into the van but as the van took off, its door somehow opened; Riley hung out of the van screaming for help as it sped down the street. At some point, some of Riley's clothes were taken, as were his cell phone, wallet and keys. The van slowed down as it headed down Martin Luther King Boulevard toward Olden Avenue, and Riley was able to jump out. He knocked on the door of a nearby house, and the occupants summoned an ambulance.
During the time that Riley was held in the van, five 9-1-1 calls were placed to report what was happening. There was testimony at trial that the procedure upon receipt of such calls is for the operator immediately to enter the information received into the computer aided dispatch ("CAD") system. There was also testimony that the tapes of the actual calls were no longer available and that the CAD summaries are the only official records of these 9-1-1 calls.
The first call was received at 5:36 p.m. There is an accompanying CAD record stating, "[M]ale being beat in the street, caller states someone has a gun." It continues, "Caller states they just put a guy in a van and fled, green van" and "Just pulled off down Evans onto MLK towards Five Points" and "All black hoodies, the victim was in a red button-down plaid shirt and jeans."
The second call was received at 5:38 p.m. The CAD entry records "Possible green Windstar, they went down Princeton Avenue towards Fuld" and "Dark green Windstar van."
The third call was received at 5:39 p.m. The CAD entry records "Caller states that it's a green Astro van, victim is hanging out the van screaming for help, went down MLK paid phone caller from 923 MLK."
Another call was also received at 5:39 p.m. The CAD entry records "Caller states three black males in black hoodies were dragging a male in a red button-down shirt into a green van. States he was screaming for help and trying to get away. Last seen hanging out of the van bleeding."
The final 9-1-1 call also came in at 5:39 p.m. The CAD entry records "Vehicle made right on Olden towards Trenton, possible now going back towards Junior One, male bleeding hanging out of it."
These 9-1-1 calls were not all received by the same 9-1-1 operator. Accordingly, the memorializing 9-1-1 CAD entries were not all written by the same author.
When these calls were received, four members of the Mercer County Regional Violent Crime Interdiction Task Force were on patrol together: Barry Volkert, Jr., a New Jersey State parole officer; Detective Michael Schiaretti III of the Trenton Police Department; Officer Ryan Forrester also of the Trenton Police Department; and Investigator Toth of the Mercer County Sheriff's Department. Hearing the dispatches, they went in search of the green minivan.
Within a few minutes, they saw a green minivan parked, with two black males getting out. Officer Volkert testified that "they appeared very nervous and they split up", one going to the right, one going to the left. One, subsequently identified as Anderson, had a laceration on his face.
Forrester ordered Alston to stop as he walked away and Alston did so. Forrester saw blood on Alston's T-shirt and asked where it came from; Alston responded he had been in a fight.
Officer Schiaretti followed Anderson and ordered him to stop. He testified that Anderson reached toward his waist and Schiaretti ordered him to stop, not knowing if he was reaching for a weapon. Schiaretti frisked Anderson and found some marijuana, as well as a digital scale and a pair of handcuffs.
The officers observed blood on the outside of the van, on the driver's side window and door, and blood on the floor between the two front seats. However, they did not attempt to enter the van at that time and towed it to a crime scene unit garage.
The police later obtained a warrant to search the van. The front passenger door and seat were covered in blood. Within the van, the police found a handgun with blood on the frame and the handle, a pair of jeans, a pair of black gloves, a single glove, a cell phone case, a roll of duct tape, a roll of electrical tape, an aluminum bat completely wrapped in electrical tape and a leather restraining instrument with a chain to bind someone. The search did not turn up any black hoodies and neither Alston nor Anderson was wearing a black hoodie when he was stopped. The van was registered in Alston's name. DNA testing revealed the presence of Riley's blood in the van and on Anderson's clothing.
Riley did not identify Alston or Anderson from a photo array the police prepared. The police also attempted to locate the individuals who had called 9-1-1 but were unsuccessful. 9-1-1 records listed the addresses from which the calls had been placed but when police went to those addresses, no one would respond to their knocking on the doors.
Alston took the stand and testified in his defense. He said that he had come out of the New Wave Supermarket on Martin Luther King Boulevard and walked toward his van when he was approached by a "large-frame male" who forced him into the driver's seat while the man got into the rear. He said he saw the man only a brief moment because the man twisted the rear view mirror so Alston could not see behind him. The man shouted at him, "Motherfucker drive." The man kept shouting different directions as to where Alston should drive. Alston said that at one point they stopped and another man was forced into the van. He said, "There was yelling, screaming, and then I was ordered to drive again." He said the man ordered him to "run that motherfucker over" but Alston refused to do so. Alston said he had never before seen his co-defendant Anderson until the two were arrested.
Alston continued that the bat was in the car because he played with the fire department baseball team. He testified that the restraints that were in the van were actually sex toys. During cross-examination the prosecutor asked Alston if his wife would testify to corroborate the sexual nature of the restraints. Anderson did not testify at the trial.
On appeal, defendant Alston raises the following arguments:
Point 1 The trial court violated defendant's confrontation rights or rights under the Rules of Evidence by admitting, without limiting instruction, summaries of 911 emergency calls.
Point 2 The trial court violated defendant's right to a fair trial by failing to remove potentially tainted jurors during trial.
Point 3 The prosecutor violated defendant's right to a fair trial with improper comments during summation and by suggesting during cross-examination of defendant that defendant had a burden to produce witnesses; the jury charge was insufficient to cure the harm.
Point 4 The trial court erred in denying defendant's motion to suppress evidence seized by police.
Point 5 Defendant's sentence is excessive and improper.
Alston contends that the CAD summaries of the 9-1-1 calls reporting the speeding van with Riley hanging out of it and screaming for help were inadmissible hearsay and also violated his right of confrontation under Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006). We disagree with both contentions.
There are two aspects to the hearsay analysis. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801. Hearsay is not admissible as evidence unless the proffered material fits within one of the enumerated exceptions. N.J.R.E. 802.
The 9-1-1 summaries utilized at trial constituted double hearsay: what the callers told the operators constituted hearsay as did the memorializing entries composed by the operators. The trial court dealt only with the second aspect and ruled the summaries admissible as business records, N.J.R.E. 803(c)(6). That ruling was correct as far as it went. The trial court did not consider the question of whether the embedded hearsay within those CAD summaries was admissible under another exception to the hearsay rules.
Having considered the matter, we are satisfied that those statements are admissible under N.J.R.E. 803(c)(2) as excited utterances. An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). The Supreme Court has summarized the factors that must inform the analysis whether a proffered statement is admissible as an excited utterance.
Consistent with the rationale for the excited utterance exception, . . . when deciding whether there was an opportunity to fabricate or deliberate, a court should consider the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance. [State v. Buda, 195 N.J. 278, 293 (2008) (quoting State v. Cotto, 182 N.J. 316, 328 (2005)).]
The most important factor "is the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness. Thus, in this fact-sensitive analysis, a court must determine whether the facts and circumstances reasonably warrant the inference that the declarant was still under the stress of excitement caused by the event." Ibid. "[A] spontaneous declaration will be admissible, even if not concomitant or coincident with the exciting stimulus provided that in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval." Id. at 296 (quoting State v. Branch, 183 N.J. 338, 361 (2005)).
In determining whether a proffered statement was made while still under the sway of an exciting influence, it is appropriate to look at the totality of the surrounding circumstances. Buda, supra, 198 N.J. at 297. In that case, the Court concluded that a statement made by a three-year-old child to a DYFS worker in a hospital emergency room several hours after he arrived was admissible as an excited utterance. Ibid. Although the Court noted the passage of several hours, it also stressed the necessity to assess both the quality and nature of that period. In light of the intervening action-filled chaos and stress-filled events that brought that child ultimately to a hospital emergency room, the time elapsed was not of a kind likely to allow this child to deliberate and, thus, fabricate the statement. In other words, the circumstances of this incident and the mental and physical condition of the declarant did not permit the disqualifying opportunity to deliberate or fabricate. [Ibid.]
Here, although the record is silent as to the mental and physical condition of the various declarants, the totality of the circumstances similarly rebuts the existence of an opportunity to deliberate or fabricate. We note, for instance, that we are dealing with a series of 9-1-1 calls, placed from different locations and at different times, but very close in time to one another. Yet all have a unifying theme and description. It strains credulity to think that different individuals, at different places and times, all placed fabricated 9-1-1 calls reporting what is, in essence, one event.
Finally, we note that "[t]rial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." Id. at 294. Although the trial court's hearsay evidentiary analysis may have been incomplete, its ultimate determination was correct.
We turn now to the question whether the admission of these CAD entries violated defendant's right under the Sixth Amendment to the United States Constitution to confront witnesses against him. Our New Jersey constitution provides a similar protection to a defendant. N.J. Const. art. I, ¶ 10.
The United States Supreme Court held in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed. 2d 177, 203 (2004), that testimonial hearsay is admissible against a defendant only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. If these 9-1-1 CAD entries are testimonial in nature, they would be inadmissible against defendant under Crawford. If, however, they are non-testimonial in nature, their admission at trial would not violate the right of confrontation. Davis, supra, 547 U.S. at 821, 126 S.Ct. at 2273, 165 L.Ed. 2d at 237.
"Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id. at 822, 1126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237. On the other hand, hearsay statements are testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Ibid.
In Davis, the Court was presented with the question whether a 9-1-1 call should be considered testimonial or non-testimonial; it concluded the determination rested on whether the caller was describing a presently unfolding situation, as opposed to reporting a past event. Id. at 827, 126 S.Ct. at 2276, 165 L.Ed. 2d at 240. In Davis, an individual placed a call to 9-1-1, reporting an ongoing domestic disturbance and seeking emergency assistance. Id. at 817-18, 126 S.Ct. at 2271, 165 L.Ed. 2d at 234. The Court found this call to be non-testimonial because it was "plainly a call for help against a bona fide physical threat," was made while the emergency was ongoing and was made with the purpose to resolve that emergency. Id. at 827, 126 S.Ct. at 2276-77, 165 L.Ed. 2d at 240.
The distinctions drawn by the Court are elucidated by Hammon v. Indiana, the companion case to Davis. In that case, a victim of domestic violence made statements to the police after they had responded to a reported disturbance and the alleged batterer was restrained in the next room. 547 U.S. at 830, 126 S.Ct. at 2278, 165 L.Ed. 2d at 242. The Court held those statements to be testimonial because the declarant was not in immediate danger but, instead, was narrating past events. Ibid.
Applying these principles to the present matter, we are confident that these CAD entries were non-testimonial and that their admission did not violate defendant's right of confrontation. The calls took place during an ongoing emergency, sought assistance for the victim of the emergency and were placed with the purpose to resolve the emergency. In sum, the CAD records were properly admitted at trial.
Defendant's second point requires a further statement of events that occurred during defendant's trial. On the fifth day of trial, the prosecution sought to present Patrolman Patrick Brady of the Trenton Police Department. His name had not been included in the original list of witnesses mentioned to the jury during the voir dire process. Before Brady took the stand, the trial court asked the jurors if any of them knew him and no one answered affirmatively. As soon as Brady took the stand, however, jurors number 2 and 12 indicated they knew him. That led to the following colloquies at sidebar.
JUROR NUMBER 2: 20-some year ago, I dated -- he [Brady] was dating and engaged to a good friend and family member of mine. But we're going back 20, 25 years ago.
THE COURT: Have you seen him since then?
JUROR NUMBER 2: Briefly, ten years ago. Kids took swimming lessons together, just to say hello to.
THE COURT: You sort of knew him from a relationship.
JUROR NUMBER 2: Long time ago.
THE COURT: As a result of any information that may have come to your attention during that whole relationship, do you think you would you view his testimony any differently?
JUROR NUMBER 2: No.
THE COURT: Are you certain about that?
JUROR NUMBER 2: Yes.
With respect to juror number 12, the following occurred.
JUROR NUMBER 12: I just wanted to make sure I knew him [Brady]. I shook his hand. I was his neighbor.
THE COURT: When is the last time you saw him?
JUROR NUMBER 12: Five or six years ago.
THE COURT: Not since then?
JUROR NUMBER 12: No.
THE COURT: You weren't even immediately sure if that was the same person?
JUROR NUMBER 12: I thought I recognized him.
THE COURT: Were you friends as well as neighbors?
JUROR NUMBER 12: No.
THE COURT: Didn't socialize?
JUROR NUMBER 12: No.
THE COURT: And do you think as a result - -how long were you his neighbor, let me ask you that?
JUROR NUMBER 12: I'd say maybe five or six years.
THE COURT: All right. Next door or - -
JUROR NUMBER 12: No, no, a few houses away.
THE COURT: Do you have any reason to believe that as a result of your familiarity with him, that you might view his testimony any differently than you would if you had never seen him before in your life.
JUROR NUMBER 12: No.
Defense counsel did not ask the trial court to probe any further with respect to juror number 2 and posed no objection to that juror remaining on the panel. Anderson's attorney, however, did object to juror number 12 and requested that he be excused. The trial court rejected this request, stating, it doesn't appear that this witness [sic] gave any indication that his evaluation of the testimony of this witness would be affected. He was not a next-door neighbor. They had no friendship. It was just a neighbor relationship, and it ended five years ago, so it's not as if he's going to see him when this case is done.
Alston contends that the trial court's decision impinged upon his right to a fair trial. We disagree.
If allegations of possible juror taint arise during a trial, the court has an obligation to question the affected juror in the presence of counsel to determine if that juror is in fact tainted. State v. R.D., 169 N.J. 551, 558 (2001). In general, the decision to dismiss a juror is largely dependant upon the trial court's subjective credibility determinations. State v. Singletary, 80 N.J. 55, 63 (1979). A trial court's decision on this issue is reviewed for abuse of discretion.
R.D., supra, 169 N.J. at 559. A reviewing court should respect the "trial court's unique perspective." Ibid. Based upon the minimal nature of the relationship which had existed in the past between Brady and juror number 12, and the representation, accepted by the trial court, that the juror would not view Brady's testimony in any different light, we can perceive no abuse of discretion on the part of the trial court in refusing to excuse juror number 12.*fn1
A further incident occurred during the jury's deliberations. Juror number 1 asked to speak to the judge and expressed concern that the juror had observed defendant, together with several other men, standing on the courthouse steps when the juror left the courthouse.
[G]iven the charges pending, I would rather err on the side of caution when it comes to the safety of my family. I don't live that far from Trenton. Given the nature of the crime and that they are charged with, these gentleman [sic] are on trial for their lives, and I'm sure they're going to do whatever they feel necessary to do.
The trial court explained to the juror there was no reason for concern and that if anyone had been with defendant, it was members of his family. The trial court asked if that put the juror "at ease" and the juror responded, "It helps." The discussion continued along the following lines.
THE COURT: I want to assure -- are you satisfied with my explanation? We have no reason to believe that any males were on the steps or in the vicinity of the courthouse having any connection whatsoever to Mr. Alston. I have no reason to believe that's the case.
JUROR NUMBER 1: Okay.
THE COURT: Does that –
JUROR NUMBER 1: Satisfies me, yes.
THE COURT: Provides you some comfort for your concerns, and you didn't discuss these concerns with any other juror, did you?
JUROR NUMBER 1: No
THE COURT: All right. I'm going to ask that you not.
Now if what I have said has eased your concerns, do you still think -- do you think that you can put these aside knowing what I've told you and consider the evidence without any bias or passion or fear or any other emotion?
JUROR NUMBER 1: I believe I can. . . . .
THE COURT: Then I will ask that you continue and not discuss your concerns simply because it really isn't anything that should enter into the deliberations. You appear somewhat relieved, I'll note for the record, am I correct in that assessment?
JUROR NUMBER 1: Yes. And when I go back there, I'm going to put it all on you, you told me I couldn't discuss it because they're going to want to know.
THE COURT: That's not a problem. There was some issue you needed to discuss. It had nothing to do -- you were asked not to discuss it, and that's the end. All right. Can you follow those instructions?
Juror number 1 responded that he could follow the instructions and was excused to continue deliberating with the other members of the panel.
In order to replace a deliberating juror, there must grounds that are personal to the juror and "unrelated to the juror's interaction with other jury members." State v. Hightower, 146 N.J. 239, 254 (1996) (quoting State v. Valenzuela, 136 N.J. 458, 472-73 (1994)). If a deliberating juror is removed, the trial court must also determine that the remaining jurors have not been tainted and that deliberations have not gone beyond the point from which a reconstituted jury could fairly deliberate. State v. Jenkins, 182 N.J. 112, 130-33 (2004).
Ultimately, the trial court is in the best position to determine whether the jury has been tainted. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings. [R.D., supra, 169 N.J. at 559.]
Here, the trial court was entitled to rely on the assurances of juror number 1 that he would be able to deliberate and decide the matter fairly and impartially and that he had not shared any of his concerns with other members of the panel.
These incidents, either singly or in combination, provide no basis to reverse defendant's convictions.
We set forth earlier in this opinion the prosecutor's cross-examination of defendant Alston with respect to his assertion that the restraints found within the van were sex toys he and his wife used. Defendant argues that this cross-examination, with questions about whether defendant's wife was going to be a witness, together with comments by the prosecutor in summation, were improper and deprived him of a fair trial. Defendant was under no obligation to present any evidence and certainly had no duty to produce his wife to support his testimony, and it was improper for the prosecutor to imply through his questioning that defendant had such a duty.
The trial court, however, gave a curative instruction to the jury as part of its charge. It instructed the jury in the following manner:
I also point out to you that any question that may have been asked by the prosecutor that suggested that the defendant has any burden to produce any witnesses or any evidence should be ignored by you in applying this burden of proof [beyond a reasonable doubt].
We presume that the jury followed this clear and explicit instruction. See State v. Manley, 54 N.J. 259, 270 (1969).
Defendant also complains of two comments made by the prosecutor during his summation, one dealing with the concept of proof beyond a reasonable doubt and the other with accomplice liability. Defendant argues that the prosecutor misstated the law in these comments. We note that defendant made no objection to these remarks at the time they were made although he did not hesitate to interpose an objection at other portions of the prosecutor's summation.
Although the prosecutor's reference to accomplice liability may not have been entirely accurate, we are satisfied that these remarks do not constitute plain error. R. 2:10-2. The trial court, moreover, at the outset of its instructions, told the jury that it was required to accept and apply the law that it supplied and to disregard any conflicting statements any of the attorneys may have made during the course of summation. Again, we presume the jury followed this instruction. Manley, supra, 54 N.J. at 270.
Prior to the trial getting under way, the defense filed a motion to suppress the items that had been recovered from the van while executing the search warrant. After hearing testimony, the trial court denied the motion. Defendant contends on appeal that was error.
There are two aspects to defendant's argument, the first dealing with the initial stop of Alston and Anderson after they got out of the van and the second with the subsequent search of the van itself.
In State v. Thomas, 110 N.J. 673, 678 (1988), the New Jersey Supreme Court adopted the analysis expressed by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), that in order to stop an individual, a police officer must have "reasonable suspicion" that the individual was involved in criminal activity and be able to point to "specific and articulable facts that warrant the intrusion." There must be an objective basis under the totality of the circumstances to believe the individual was engaged in criminal activity. Thomas, supra, 110 N.J. at 678. A Terry frisk may be performed upon an objectively reasonable belief that the suspect is armed and dangerous. Thomas, supra, 110 N.J. at 679. While an anonymous tip alone is rarely sufficient for reasonable suspicion, a report from a concerned citizen is not viewed from the same perspective as an informant's report. State v. Amelio, 197 N.J. 207, 212-13 (2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2402, 173 L.Ed. 2d 1297 (2009). "[B]y its nature, a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts." State v. Golotta, 178 N.J. 205, 218 (2003). This is because there are criminal penalties for making false 9-1-1 calls, and the caller's name and address are known. Id. at 218-19.
The motion to suppress was heard by a judge other than the judge who presided at trial. After hearing the testimony presented, the motion judge found that the officers were responding to 9-1-1 calls of a serious, violent crime, that they knew it involved a dark green van in the geographical area where this van was spotted. Both men appeared to be nervous, checking the area, and Anderson had a laceration on his face. There were thus specific, articulable facts to support the stop. Once Anderson reached for his waistband, the officers had an objectively reasonable suspicion that a frisk was warranted, leading to the discovery of the marijuana and the digital scale.
An appellate court should affirm a trial court's factual findings made in connection with a motion to suppress so long as they are "supported by sufficient credible evidence in the record." State v. Best, 403 N.J. Super. 428,433-34 (App. Div. 2008) (quoting State v. Elders, 192 N.J. 224, 243 (2007)), aff'd, 201 N.J. 100 (2010). The decision should only be reversed if the trial court was so clearly mistaken "that the interests of justice demand intervention and correction." Best, supra, 403 N.J. Super. at 434 (quoting Elders, supra, 192 N.J. at 244). We can find no basis upon which to reverse the trial court's denial of Anderson's motion to suppress the items recovered from his person.
Defendants also sought to suppress the items recovered from the van, contending that there was an insufficient basis to justify the issuance of a search warrant. The Fourth Amendment to the United States Constitution requires that a warrant "particularly describe the place to be searched, and the persons or things to be seized." The description should be specific enough that the officer "can, with reasonable effort ascertain and identify the place intended." Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925). The fundamental requirement is reasonableness. State v. Daniels, 46 N.J. 428, 437 (1966) (quoting State v. Romeo, 43 N.J. 188, 206 (1964), cert. denied, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed. 2d 563 (1965)).
Defendant complains that the affidavit presented in support of the warrant, and the warrant itself, contained insufficient factual information. He complains of alleged drafting errors but has not provided either document to us, making it impossible for us to consider the contention.
Defendant's fundamental argument, however, is that there was no probable cause to justify issuing the warrant. Based upon the totality of the circumstances, including the police observation of blood in the interior of the van and the bloodstained clothing of both Alston and Anderson, there was more than reasonable support for a prudent person to believe that the law had been violated in some manner in which the van was involved.
Alston's remaining argument in the brief submitted by his attorney is that his sentence was excessive. The trial court gave extensive reasons for its sentencing determination. The prosecution requested the trial court to sentence defendant to twenty-three years in prison and defense counsel urged that the sentence should not exceed fifteen years.
Our review of a court's imposition of sentence is conducted, not with an eye as to whether we would have come to the same conclusion but whether the sentence imposed is shocking to the judicial conscience and an abuse of the sentencing power. State v. Cassady, 198 N.J. 165, 180 (2009); State v. Ghertler, 114 N.J. 383 (1989). Defendant's aggregate sentence of seventeen years is neither shocking nor an abuse.
Defendant has filed a pro se brief in which he raises but one contention, that the prosecuting attorney did not notify the defense that there was another suspect, or notify him about the co-defendant's entry into a plea agreement and ensuing confession was a "Brady" violation and denied him a fair trial.
There is no support in this record for these contentions. Alston's co-defendant, Anderson, did not enter a plea agreement. He stood trial with defendant and was found guilty by the same jury at the same time. Nor is there any evidence in this record that the prosecutor knew of another suspect but failed to notify defendant.
Defendant Anderson has raised the following issues in support of his appeal:
POINT I THE ADMISSION OF THE TRENTON POLICE CAD RECORDS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION.
POINT II THE FAILURE OF THE COURT TO EXCUSE TWO JURORS PRIOR TO DELIBERATIONS DENIED DEFENDANT A FAIR TRIAL.
POINT III THE ADMISSION OF OTHER CRIME EVIDENCE WAS ERROR AND NECESSITATES REVERSAL OF DEFENDANT'S CONVICTION. (Partially raised below)
POINT IV THE LOSS OF CERTAIN EVIDENCE DENIED THE DEFENDANT THE FAIR AND IMPARTIAL TRIAL GUARANTEED HIM BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT V THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
POINT VI QUESTIONS POSED TO CO-DEFENDANT AS TO WHETHER HIS WIFE WOULD BE CALLED AS A WITNESS WERE IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below)
POINT VII THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTIONS FOR ROBBERY AND KIDNAPPING BEYOND A REASONABLE DOUBT. (Partially Raised below)
POINT VIII THE DEFENDANT'S AGGREGATE SENTENCE OF 20 YEARS WITH 17 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below)
POINT IX THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised below)
We have already addressed Points I, II, V and VI in our discussion of Alston's appeal, and there is no need to repeat that analysis in terms of Anderson's appeal. We turn, instead, to Anderson's remaining contentions, the first of which is that the admission of other crime evidence deprived him of a fair trial. We disagree.
This contention is focused on testimony that during the police frisk of Anderson, they recovered marijuana and a digital scale.
This evidence was admissible to establish the factual complex for Anderson's arrest.
The trial court clearly explained that to the jury.
There was testimony by Detective [Schiaretti] that he ordered Alexis Anderson to stop, and that Detective [Schiaretti] thereafter pat-frisked Mr. Anderson. Detective [Schiaretti] testified as to items found in Mr. Anderson's pockets, including marijuana.
This evidence was admitted for a limited purpose, simply to describe the conduct of the police and what preceded Mr. Anderson's arrest. The fact that that substance believed to be marijuana was allegedly found on Alexis Anderson's person is not relevant to any of the charges in the indictment, and should not be given any significance during your deliberations, other than to explain the conduct of the police after they stopped this defendant. It is no evidence of the defendant's guilt as to any of the charges in the indictment.
We presume the jury followed this instruction. State v. Winder, 200 N.J. 231, 256 (2009) (citing Manley, supra, 54 N.J. at 271).
We recognize that the trial court did not specify the digital scale in this instruction, an omission which would appear to be wholly inadvertent. Defendant did not request a further instruction from the trial court, and we are unable to perceive how such an omission would have led this jury to a result it would otherwise not have reached. State v. Taffaro, 195 N.J. 442, 454 (2008).
Anderson's next argument, with respect to the loss of certain evidence, requires that we amplify our recitation of the progress of this matter. As we have noted, the search of the van turned up a handgun with blood on its frame and handle. It, together with various items of clothing recovered from defendants, was placed in the evidence room of the Trenton Police Department. Later, samples of the clothing were sent to the New Jersey State Police laboratory where testing determined that they contained blood. Those samples were then forwarded within the laboratory for DNA testing, together with a buccal swab which Riley had provided. That DNA testing revealed that Riley was the source of the blood on two of the four samples.
The material was later returned to the Trenton Police Department for storage. The items, however, could not be located for trial; the fact that they were missing was discovered only a few days before the trial commenced.
Officer Brady, to whom we referred earlier in this opinion, testified as to the loss of these items. Anderson contends that their loss deprived him of a fair trial. We disagree.
The State has the obligation to preserve evidence that possesses an exculpatory value that was apparent before the loss and which is of such a nature that a defendant "would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed. 2d 413, 422 (1984).
To determine whether the loss of evidence has deprived defendant of a fair trial, we must consider whether the loss resulted from "bad faith or connivance" on the part of the State and whether the loss caused prejudice to defendant. State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979). Further, defendant must show the lost evidence was material to his defense. Ibid. "[E]vidence, to be sufficiently material, must be useful as to discredit a witness to the point of probably or possibly affecting the result of the trial." Ibid. The materiality threshold can be determined based upon a three-prong test: "(1) whether the evidence was material to the issues of guilt or punishment; (2) whether defendant was prejudiced by its destruction; and (3) whether the government had acted in bad faith when it destroyed it." State v. Berezansky, 386 N.J. Super. 84, 97 (App. Div. 2006) (quoting State v. Casale, 198 N.J. Super. 462, 470 (App. Div. 1985)), appeal dismissed, 196 N.J. 82 (2008).
Here, Anderson has provided no explanation of the potentially exculpatory value of the missing handgun and clothing. The fact that defendant did not conduct an independent analysis of these items before they were lost does not make their loss material. He was given a full opportunity to cross-examine the appropriate witnesses as to the results of their laboratory investigations. Further, there is no showing that there was any bad faith involved in the disappearance of these items.
Anderson argues that there was insufficient evidence for the jury to have found that he was present when Riley was kidnapped and robbed. We note that although Alston filed a motion for a new trial on the ground that the verdict was against the weight of the evidence, Anderson did not. Rule 2:10-1 provides that a party may not argue on appeal that a jury verdict is against the weight of the evidence unless that party sought a new trial from the trial court on that basis. We are, however, cognizant of our responsibility to afford justice, and we thus elect to deal with this contention, rather than relegate Anderson to a subsequent petition for post-conviction relief urging that trial counsel was ineffective for not filing such a motion. We are satisfied, nonetheless, that the argument lacks substantive merit.
There was more than sufficient evidence presented at trial to permit the jury to conclude that Anderson was present when Riley was attacked. Anderson was seen leaving the van and the DNA evidence linked him to the attack. Anderson challenged the sufficiency of that evidence through cross-examination. Whether to accept that evidence or to reject it lay within the sole province of the jury.
Anderson contends, as did Alston, that his sentence of twenty years in prison subject to NERA is manifestly excessive. We have earlier set forth the principles which guide our consideration of this argument, and we will not repeat them here. Anderson's contentions as to his sentence are not persuasive. In light of his prior involvement with the criminal justice system and the nature of the offenses involved, his sentence is, in our judgment, entirely appropriate. R. 2:11-3(e)2.
Anderson's last contention on appeal is that of cumulative error. State v. Orecchio, 16 N.J. 125, 129 (1954). Having rejected defendant's claims of individual error, his claim of cumulative error must, perforce, fail.
The judgments of conviction for defendant Alston and defendant Anderson are affirmed.