July 22, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LASHANTA M. MCCRAE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. 06-11-1045.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2010
Before Judges Carchman and Parrillo.
Tried by a jury, defendant Lashanta McCrae was found guilty of third-degree shoplifting of property valued in excess of $500, N.J.S.A. 2C:20-11(b)(1). She later pled guilty to a count of another indictment charging third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2, in exchange for a sentencing recommendation of a flat four-year term to run concurrent with the sentence to be imposed on her shoplifting conviction. On the latter, defendant was sentenced, as a persistent offender, N.J.S.A. 2C:44-3(a), to a discretionary extended term of eight years with a four-year parole disqualifier. As per the plea agreement, that sentence was made to run concurrent with the four-year term imposed on defendant's conspiracy conviction. Defendant appeals, and we affirm.
According to the State's proofs, on June 2, 2006, defendant visited a Walmart store in Upper Deerfield, New Jersey. Her sister, Elena Brown, and Brown's three children, ages thirteen, fourteen, and sixteen, were also present at the store during defendant's visit. While at the Walmart, Brown and the juveniles filled three shopping carts with four plasma televisions, one computer, and a printer, valued at approximately $4600. After filling the carts, Brown and her children exited the store, where they displayed a receipt to the store greeter, Janelle Eckheard, before entering the parking lot. Defendant left the store a few moments after Brown.
Shortly after defendant left the store, the greeter entered the manager's office and informed Karen Saville, an assistant manager assigned to the electronics, photo, and cellular phone departments, about an incident involving defendant and the Brown entourage. Saville immediately ran to the parking lot, and as she approached defendant, observed electronic equipment being loaded into defendant's car, a gold Nissan Maxima. As Saville yelled that she needed to see defendant's receipt, defendant turned her head to look at Saville before driving away at a high rate of speed, coming very close to striking Saville as she backed from the parking space. Being so close to defendant's vehicle, Saville recognized an eMachine computer and a printer in the vehicle. As defendant drove away, Saville noted the vehicle's license plate number and its description, which was then reported to police.
After providing a statement to the responding State Trooper, Ronald Keller, Saville used the store's inventory system to determine what items had been taken without having been purchased. When merchandise arrives at the store, a member of management provides codes to verify its arrival and to download the new inventory into the store's system. As merchandise is stocked, an employee confirms that inventory is accurate. The store's inventory system incorporates handheld scanners that record sales for the previous five weeks as well as the items the store should currently have in stock. When an item is scanned through one of the store's cash registers, the purchase is reflected in the inventory system and the inventory is updated to indicate that the item was sold. Store employees physically check to see which items have been removed from the shelves and compare missing items to an electronic inventory. According to Saville, the store's system is an accurate method of determining if items had been shoplifted because shelves are restocked each night and the store's inventory is strictly accounted for.
Upon arrival at the scene and after speaking with Saville, Trooper Keller unsuccessfully searched the area surrounding Walmart for defendant's car, using the license plate number and description. Upon returning to the store, Keller reviewed the surveillance video footage, wherein defendant, Brown and Brown's three children were identified. The video clip recorded defendant interacting with Brown inside the store; Brown and her children passing the greeter and leaving the store; defendant exiting the store immediately after Brown and the juveniles cleared the door area; defendant rejoining Brown in the parking lot; Brown carrying an item that apparently would not fit into the Maxima to her car; and defendant driving the Maxima away after being confronted by Saville. The surveillance footage, however, did not show defendant pushing any of the shopping carts containing the merchandise.*fn1
After a warrant for her arrest was issued, defendant appeared voluntarily at the Bridgeton Police Station and was interviewed. After being administered her Miranda*fn2 rights, defendant gave a taped statement in which she denied being involved in the shoplifting or interacting with Brown or the juveniles while inside Walmart, other than placing a call to one of the children's cell phones. According to defendant:
Ah, um, I had went to the Walmart to talk to somebody that works there, Shamira Brown. When I got there I seen that my sister and my two nieces was there as well. And my mother-in-law and my father-in-law too. So I was talking to a few people in there and when I was at the register getting ready to leave out I seen [Elena], [and two of her children] leaving out. I was still at the register talking to Shamira Brown. Five minutes after they went out the store, I left out the store. Then the fat girl that called them, Genell, that works the door, she called them to come to the store or whatever. When I was walking out the door like she smiled at me, that's how I knew that you know they was in trouble, or whatever. So I called them on my phone, I asked them if they was. And that was it.
When confronted with discrepancies between her account and the surveillance footage, defendant simply responded, "ain't no saying what I said."
Vivian Rhett, a former Walmart employee, testified for the defense. She observed defendant holding a conversation with another employee, Shamira Brown, on June 2, 2006. While defendant was in the store, Rhett took a five minute break, and when she returned from her break, defendant was still speaking with the other employee. Rhett also observed Brown and the juveniles leave the store with three carts containing large boxes after handing the store greeter a receipt for inspection. According to Rhett, when the group left the store, defendant was still conversing with the store employee.
Evidently crediting the State's version, the jury convicted defendant of third-degree shoplifting. On appeal, defendant raises the following issues for our review:
I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION PURSUANT TO R. 3:18-1 FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
II. THE PROSECUTOR'S USE OF DETAILED INFORMATION CONCERNING THE DEFENSE WITNESS'S PRIOR CONVICTION ON CROSS-EXAMINATION AND IN SUMMATION CREATED UNDUE PREJUDICE RESULTING IN AN UNFAIR TRIAL. THE PROSECUTOR SHOULD HAVE REQUESTED A HEARING TO RESOLVE THE ISSUE OF SANITIZATION BEFORE ELICITING THE INFORMATION FROM MS. RHETT. [Not raised below.]
III. VARIOUS ERRORS DURING THE COURSE OF THE TRIAL AND THE COURT'S CHARGE DEPRIVED THE DEFENDANT OF A FAIR TRIAL
[Partially raised below.]
A. Other crimes evidence; flight charge.
B. The State's summation.
IV. THE COURT ABUSED ITS DISCRETION WHEN IT IMPOSED A DISCRETIONARY EXTENDED TERM SENTENCE AND IMPOSED A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY WITHOUT ANY ANALYSIS FOR THE REASONS FOR IMPOSITION OF THIS PAROLE INELIGIBILITY TERM. THIS SENTENCE SHOCKS THE JUDICIAL CONSCIENCE.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
A motion for a judgment of acquittal under Rule 3:18-1 must be denied if viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]
"'On such a motion, the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 343 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).
Here, the evidence and inferences therefrom reasonably support defendant's guilt as an accomplice to Brown's shoplifting. The video clip clearly shows defendant interacting with Brown inside the store, exiting immediately after Brown passed by the greeter, and meeting up with Brown in the parking lot, where Saville observed a computer and printer - later determined missing from the store - loaded into defendant's vehicle. The fact that not all of the items missing from the store were detected in defendant's Maxima or that defendant herself was not seen pushing the cart with the items on it does not warrant removing the issue from the jury's consideration. A jury may draw inferences from the evidence, which in turn may be circumstantial. State v. Franklin, 52 N.J. 386, 406 (1968). And where such evidence may give rise to differing interpretations, it is for the jury to resolve the conflict. The fact that defendant denied assisting in the shoplifting scheme goes to the weight of the evidence and not to whether evidence of her guilt as an accomplice to the shoplifting actually existed. Suffice it to say, there was ample proof of defendant's accomplice liability to warrant submission to the jury.
There was also no error in the use of the defense witness's prior shoplifting conviction to impeach her credibility. During her direct examination, Rhett admitted that she was currently on probation for a theft offense. On cross-examination, the State identified the specific charge as third-degree shoplifting. The State also elicited from Rhett that her daughter is related to defendant, who frequently acts as a babysitter, and that she and defendant share a common employer, though the two women work different shifts. Moreover, in his closing remarks, the prosecutor challenged Rhett's credibility on these bases, stating:
Now, let's think about her testimony for a second. And, one of the important things you do in a trial is assess the credibility of witnesses. You have Ms. Rhett. She's a convicted shoplifter. She admitted that. That's one thing. Number two, she's related to the defendant. She has a child with the defendant's brother. She just told you that. You can consider that when you consider someone who comes in here to testify in a case that they're related to the defendant, you can consider that as they have an interest in testifying a certain way, to help them out.
Defendant now contends that the effect of these remarks is to unfairly suggest defendant's "guilt by association" by referencing defendant's familial and social relationship with a convicted shoplifter. We disagree.
The need to sanitize a prior conviction so that a jury does not convict a defendant because she was previously convicted of the same or similar offense, State v. Hamilton, 193 N.J. 255, 267-68 (2008); State v. Brunson, 132 N.J. 377, 391-92 (1993), does not extend to defense witnesses. But even if it did, it was defense counsel who first elicited from witness Rhett her prior theft conviction and we discern no enhanced potential for prejudice in the prosecutor's further specification of the offense as shoplifting.*fn3 We highly doubt that the State's reference to "shoplifting" did more damage to the witness's credibility than the defense's mention of her theft offense. Moreover, the prosecutor's elicitation of the familial relationship between defendant and Rhett was a proper method of exposing witness bias and attacking her credibility. N.J.R.E. 607; State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996). There was no error therefore in mentioning the defense witness's specific prior conviction or her relationship with defendant.
Nor was it error to allow Saville to testify that defendant's vehicle nearly hit her. Contrary to defendant's contention, the challenged reference is not to "other crimes" evidence disallowed under N.J.R.E. 404(b), but rather to conduct occurring during, and part of, the total underlying criminal episode, and therefore admissible as within the res gestae of the charged crime. State v. Martini, 131 N.J. 176, 242 (1993), overruled in part by, State v. Fortin, 178 N.J. 540 (2004); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Evidence of defendant speeding away when confronted by Saville "presents the full picture of the crime to the jury." Cherry, supra, 289 N.J. Super. at 522.
Neither was it improper for the State, in summation, to reference a "getaway" driver in a bank robbery to illustrate to the jury the concept of accomplice liability. Such a scenario was mentioned simply by way of an analogy easily and readily understood by the average juror and had no capacity whatsoever to suggest or imply that defendant was a bank robber.
We also find no merit in defendant's complaint that the prosecutor, in violation of State v. Bankston, 63 N.J. 263, 268-69 (1973), asked the jury to impermissibly speculate what a non-testifying witness told Saville about defendant, which caused her to run outside to "catch her in the act." In this regard, the prosecutor commented:
And, then, when Ms. Saville realizes what's going on, and Mr. Powell says that we don't know... why she went out into the parking lot. We really don't. I mean she can't testify to that, but we can draw the inferences. You're all reasonable people. You have experience. You can draw the inferences as to what you think might have happened, and that is not filling in a blank. It's not manufacturing evidence, it's just thinking about things.
Now, does it sound reasonable to you, that she just had an epiphany and decided to run out and head towards the Maxima, or is it maybe she felt something was going on. [(Emphasis added).]
We find no Bankston violation here. In closing argument, defense counsel repeatedly referenced why Saville went outside and what someone might or might not have said to her. By initiating comment on the issue, defense counsel opened the door to allow the prosecutor to respond in kind. Indeed, it was defense counsel who stated, "she said, I went outside at somebody else's insistence, because I had information that we believed some things were taken." We discern no prejudice to defendant under these circumstances.
Lastly, defendant's sentence does not shock the judicial conscience. Defendant herself acknowledges her eligibility, to be sentenced as a persistent offender under N.J.S.A. 2C:44-3(a). Indeed, both her juvenile and young adult criminal records are extensive. Her juvenile history includes eight arrests, four diversions, three adjudications of delinquency (one of which was for shoplifting), and one violation of probation. Her adult record reveals that by age twenty-four, she had already been arrested twenty-one times, had four local ordinance convictions, three disorderly person convictions (one shoplifting), two prior indictable convictions (both theft-related) and one violation of probation. Additionally, as noted on the date of sentencing, the defendant pled guilty to conspiring with co-defendant Brown to commit shoplifting from another Walmart store in Cumberland County, an offense occurring after defendant's arrest on the present charge.
Defendant's criminal record not only supports imposition of a discretionary extended term, but also justifies the length of the eight-year term and the four-year parole disqualifier. In this regard, the court found aggravating factors (3), (6), and (9), N.J.S.A. 2C:44-1(a), as well as the egregious circumstance that juveniles were used to facilitate commission of the present offense. All of these factors were well supported by the record evidence and constituted ample grounds justifying the sentence imposed. Furthermore, the fact that defendant's sentence was greater than co-defendant Brown's, who pled guilty two years later, does not implicate the propriety of the former, especially since the record is barren of Brown's individual circumstances, including her prior criminal history and eligibility for enhanced punishment.