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State v. Allah

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAQUILL B. ALLAH, A/K/A CHERICE R. WALL, ALLAH SHAQUILL, SHAQUILL A. BLACKMIND, AND SHAQUILL ALLAH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-08-1210.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2009

Before Judges Fuentes, Gilroy and Simonelli.

In August 2006, an Ocean County Grand Jury charged defendant with first-degree carjacking, N.J.S.A. 2C:15-2a (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count four); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count five); third-degree theft of an automobile, N.J.S.A. 2C:20-3 (count six); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (count seven). Prior to trial, the court severed count seven. The jury found defendant guilty of counts one, two, and six, but not guilty on counts three, four, and five. Following the return of the verdict, the court granted the State's motion to dismiss count seven.

On February 2, 2007, the court denied defendant's motion for judgment of acquittal notwithstanding the verdict, and granted the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(3), (6), and (9), and mitigating sentencing factor, N.J.S.A. 2C:44-1b(11), the court sentenced defendant on count one to an extended term of life imprisonment with a sixty-three year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on count two to a concurrent twenty-year term of imprisonment with a seventeen-year period of parole ineligibility pursuant to NERA. The court imposed a five-year period of parole supervision upon release on each count and ran the sentences consecutive to a thirty-year term sentence defendant was then serving under a separate indictment. Lastly, the court merged count six with count two, and imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

SINCE THE COURT FAILED TO INSTRUCT THE JURORS ON THE LESSER-INCLUDED OFFENSE OF RECEIPT OF STOLEN PROPERTY IN ACCORDANCE WITH EYEWITNESS TESTIMONY THAT THE UNMASKED DEFENDANT GAVE WITNESS MILOS KEYS TO THE STOLEN CAR AFTER THE CARJACKING, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (NOT RAISED BELOW).

POINT II.

SINCE THE TRIAL COURT PREVENTED AN EYEWITNESS -- WHO WAS AT LEAST COMPLICIT IN RECEIVING THE STOLEN CAR FROM THE CARJACKING -- FROM ANSWERING COUNSEL'S QUESTION AS TO WHETHER SHE WAS A SUSPECT, AND REPEATEDLY INTERFERED WITH THE QUESTIONING OF WITNESSES INCLUDING CROSS-EXAMINATION, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (PARTIALLY RAISED BELOW).

POINT III.

SINCE THE TRIAL COURT INSTRUCTED THE JURORS ON TWO DISTINCT STATUTORY VERSIONS OF CARJACKING WITHOUT A SPECIFIC UNANIMITY INSTRUCTION, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (NOT RAISED BELOW).

POINT IV.

SINCE THE OVERALL IDENTIFICATION INSTRUCTION -- INCLUDING AN EARLIER INSTRUCTION ABOUT THE ATTORNEY GENERAL GUIDELINES -- FAVORED THE STATE'S EVIDENCE AND DID NOT INFORM THE JURORS THAT THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL[.] (NOT RAISED BELOW).

POINT V.

THE JUDGE REPEATEDLY MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).

POINT VI.

SINCE THE TRIAL COURT WRONGLY FOUND THAT THE ROCCO PHOTO-ARRAY PROCEDURE WAS NOT IMPERMISSIBLY SUGGESTIVE, THE MATTER AT LEAST SHOULD BE REMANDED FOR A PROPER HEARING IN ORDER TO DETERMINE WHETHER THERE WAS AN INDEPENDENT SOURCE FOR THE IDENTIFICATION. (NOT RAISED BELOW).

POINT VII.

THE IMPOSITION OF A LIFE-TERM EXTENDED TERM NERA SENTENCE OF IMPRISONMENT ON THE CARJACKING CHARGE, CONSECUTIVE TO A 30-YEAR NERA TERM OF IMPRISONMENT ON A PRIOR UNRELATED ROBBERY CONVICTION, WAS EXCESSIVE. In a pro se supplemental brief, defendant argues:

POINT I.

THE COMPLAINT WARRANT AND SUPPORTING AFFIDAVIT OF PROBABLE CAUSE DID NOT STATE SUFFICIENT FACTS TO ESTALISH PROBABLE CAUSE FOR THE ISSUANCE OF AN ARREST WARRANT, AND DISMISSAL OF THE COMPLAINT.

POINT II.

THE AFFIDAVIT OF PROBABLE CAUSE FOR ISSUANCE OF ARREST WARRANT THAT WAS SUBMITTED IN SUPPORT OF THE COMPLAINT-WARRANT WAS CONSTITUTIONALLY DEFECTIVE, AND THUS WOULD WARRANT QUASHING OF THE ILLEGAL ARREST WARRANT.

POINT III.

THE DEFENDANT-APPELLANT['S] GUARANTEED RIGHTS AS PROVIDED UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 1 AND 7 OF THE NEW JERSEY CONSTITUTION [WERE] VIOLATED WHEN THERE IS NO BINDING NOR LEGAL LIABILITY FOR THE WARRANT, AFFIDAVIT, INDICTMENT AS TO THE CHARGES CONVICTED.

POINT IV.

THE DEFENDANT[]-APPELLANT['S] FOURTEENTH AMENDMENT RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION AS TO: "DUE PROCESS", "EQUAL PROTECTION OF THE LAW", "DEFENDING LIFE AND LIBERTY" WERE VIOLATED. THE SENTENCING COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED TO LIST [AND] HEAR THE STATE BASED ON INCOMPLETE INSTRUMENTS LEADING TO A FRAUDULENT INDICTMENT WHICH HAS "HELD" THE DEFENDANT[-]APPELLANT DETAINED AND WRONGFULLY IMPRISONED IN VIOLATION TO ARTICLE I, PARAGRAPH 8, OF THE NEW JERSEY CONSTITUTION.

POINT V.

IN THE EVENT THE REVIEWING COURT AND THE [RESPONDENT STATE] FIND MY POSITION IN ERROR A POINT[-]FOR[-]POINT RESPONSE IN AFFIDAVIT [FORM] WILL BE REQUIRED. IT IS THE INTENT OF THE DEFENDANT[-]APPELLANT TO MOVE IN FULL SETTLEMENT AND CLOSURE OF THE ACCOUNT.

We affirm.

We gather the following facts from the testimony presented at trial. On the evening of June 29, 2002, Jimmy Prochette was driving his 1996 Mercedes motor vehicle in Lakewood Township. As Prochette approached the local bus depot, he noticed Andrea Milos and Tracy Rocco standing in front of a nearby store. Prochette stopped to talk to them. After a brief conversation with the two women, Prochette took Milos for a ride in his car. Rocco stayed behind, eventually making her way to defendant's residence on Center Street. Rocco advised defendant that Milos had left with Prochette in his car "because, you know, he had a Mercedes, and it seemed like he was showing off." Defendant responded that he should rob Prochette. Rocco took the comment as a joke.

According to Milos, she and Prochette proceeded to Prochette's home in Asbury Park and "hung out" for a while.

After a couple of hours, Milos asked Prochette to take her home. Before they left, Milos realized she had left her wallet in Rocco's car and asked Prochette if he would stop to meet Rocco on the way back to her house so she could retrieve the wallet. When Milos called Rocco to set up a meeting place, Rocco informed her she was at defendant's house on Center Street. After hanging up with Milos, Rocco told defendant that Prochette and Milos were on their way there for Milos to retrieve her wallet.

Prochette arrived at defendant's home sometime between midnight and 1:00 a.m., and parked his car along side of Rocco's car, where Rocco was seated in the driver's seat. Milos exited Prochette's car via the front passenger side door and saw defendant standing beside her wearing a ski mask. Even though defendant was wearing the mask, Milos recognized his voice and his clothes. Defendant entered Prochette's car through the open door, pointed a gun at Prochette and demanded the Mercedes. A struggle ensued, and according to Prochette, defendant's gun discharged. Another individual known as "Ray-Ray," reached into the car through the driver's side and grabbed Prochette. Milos became frightened, ran into Rocco's car, and the two sped away. After defendant dragged Prochette from the car, defendant and Ray-Ray assaulted him. The assailants stole Prochette's motor vehicle, $100 in cash, a necklace, and his shirt.

Patrolman Daniel Tworkorski of the Lakewood Township Police Department responded to a call about the carjacking in the vicinity of Ashley Avenue and Center Street. Upon arriving at the scene at about 1:56 a.m., he observed Prochette, shirtless, with a bump on his head and a scraped knee, signaling for help from the roadway. Prochette told Tworkorski that he had been carjacked at gunpoint. He described the perpetrator in the ski mask as a black male, muscular build, between 5'9" and 5'10" in height. Detective Reginald Dalton met Prochette and Tworkorski at Lakewood police headquarters later that morning, where Prochette provided Dalton with the same description of the masked perpetrator that he had given to Tworkorski.

While driving around the vicinity of the carjacking, Milos and Rocco decided to return to defendant's house to confront him about the incident. When they arrived, defendant, Prochette and Prochette's car were gone. Defendant arrived fifteen minutes later, and Milos asked him for the keys to Prochette's car on the pretense that her cousin had a chop shop where she could take the car. Actually, she wanted to return the car to Prochette. Defendant gave Milos Prochette's car keys, informing her it was located in the parking lot of a nearby apartment complex.

Rocco drove Milos to the apartment complex, where they found the car. Milos telephoned Prochette in the hope of returning the car but received no answer. Milos asked Rocco to follow her to Prochette's house in Asbury Park so she could drop the car off, but Rocco refused. Milos and Rocco separated. Milos drove Prochette's car to her aunt's house in Howell Township, but decided not to stay there; instead, Milos drove Prochette's car to a friend's house in Freehold where she spent the night. Rocco, in turn, proceeded back to defendant's house.

As Rocco proceeded toward defendant's house, Dalton was escorting Prochette back to the site of the carjacking in an unmarked police car. As Dalton turned onto Arlington Avenue, Prochette spotted Rocco driving her car. Dalton stopped Rocco; and after speaking with her, Rocco agreed to accompany Dalton to police headquarters. Rocco told Dalton that Milos had taken Prochette's car to her aunt's house in Howell Township. Dalton, having called Milos' aunt, was informed of Milos' location in Freehold.

After Dalton found Milos and Prochette's car in Freehold, they proceeded to the Lakewood Police Headquarters. At the police station, Rocco and Milos told Dalton that the man in the ski mask was known to them as "Father," but they did not know his true name. Rocco described him as approximately 6' to 6'1" tall with a muscular build, around 270 pounds. Milos also described Father as muscular and approximated his height as 6' to 6'1," and guessed that he weighed between 250 and 260 pounds.

Dalton prepared two groups of photographs to show Rocco and Milos. He used a computer database to find photographs of individuals fitting "Father's" physical description and known to reside or associate with others in the area of the carjacking. However, Dalton did not find any photos known by the alias "Father."

The Lakewood Police Department's standard procedure at the time was to present the entire group of photographs to the witness, one at a time, rather than all at once. If the witness made a positive identification before looking at all the photographs, the administering officer would make a mental note of the identification, but continue to show the remaining photographs. After looking at all photographs, the witness then would sign and date the back of the photograph he or she identified as the suspect, and the officer would note any comments made by the witness on the identification results sheet, such as, a comment indicating the witness's assuredness of the identification.

On June 30, 2002, at 11:42 a.m., Sergeant Addison presented a group of photographs to Milos in accordance with department procedure. Defendant's photo was not in the group, and Milos did not identify anyone. At 11:51 a.m., Addison showed Milos a second group of photos, which again did not include defendant's photograph. Once more, Milos did not identify anyone.

At 12:03 p.m., Addison showed Rocco a third set of photographs identical to the first group shown to Milos. Rocco identified photograph number two, a photograph of Deron Key, who Dalton later learned is defendant's cousin. Addison's noted comments indicate that Rocco asked to see photograph number two a second time, and after seeing it again proclaimed that "it's definitely number two." However, Dalton believed that Rocco's identification was erroneous because Dalton knew that Key was neither six feet tall nor muscular.

Dalton re-checked his alias file for the name of "Father," and for the first time realized that defendant was known by that name. As a result, Dalton compiled two additional sets of photographs that included defendant's photograph to show to Milos and Rocco. One set was shown to Rocco on July 1, 2002, at 9:10 a.m., by then Detective Edward Ward. Rocco identified the second photo in the group as defendant. Rocco's identification was unequivocal, proclaiming that she was "definite[]" in identifying defendant's photograph as the person she knew as Father. At 9:18 a.m. that same day, Ward showed Milos the second set of photographs. Milos identified photograph number four as defendant. She too was unequivocal, stating "that's him, I'm sure that's him."

No bullet holes were found in the car. The car was not chemically tested for gun shot residue, and no residue was observed by a naked eye search. A fingerprint dust of the car did not reveal defendant's fingerprints.

I.

Defendant did not raise the arguments presented in Points I, III, IV, V, and VI of defense counsel's brief during the trial. Accordingly, we review those issues under the plain error rule. R. 2:10-2. A reviewing court will reverse on the basis of an unchallenged error, only if the error was "clearly capable of producing an unjust result." Ibid.; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971). To reverse for plain error, the reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. We conclude that none of the errors asserted in the aforementioned four points rise to the level of plain error. Nevertheless, we add the following comments.

In Point I defendant argues that the trial court erred in failing to sua sponte instruct the jury on the crime of receiving stolen property as a lesser-included offense of the crime of carjacking.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008).

Lesser-included offenses should only be charged to the jury if there is a rational basis in the evidence for the jury to convict the defendant of the lesser-included offense. N.J.S.A. 2C:1-8e; State v. Thomas, 187 N.J. 119, 131 (2006); State v. Brent, 137 N.J. 107, 117 (1994). Simply stated, there must be a rational basis to "acquit the defendant of the greater charge and convict the defendant of the lesser." Brent, supra, 137 N.J. at 117.

While "the 'rational basis' test... 'imposes a low threshold,'" State v. Scherzer, 301 N.J. Super. 363, 480 (App. Div.) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)), certif. denied, 151 N.J. 466 (1997), the requirement must be more than an abstract reason for believing that the jury may acquit the defendant on the greater charge and return a guilty verdict on the lesser charge. "'[S]heer speculation does not constitute a rational basis.'" Thomas, supra, 187 N.J. at 132 (quoting Brent, supra, 137 N.J. at 118). Where neither defendant nor the State requests a charge of a lesser-included offense, "'a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" Id. at 132 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)); see also State v. Garron, 177 N.J. 147, 180 (2003) cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1240 (2004); State v. Savage, 172 N.J. 374, 397 (2002).

The elements of the crime of receiving stolen property are defined in N.J.S.A. 2C:20-7. The statute provides in relevant part that "[a] person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen.... 'Receiving' means acquiring possession, control or title, or lending on the security of the property." N.J.S.A. 2C:20-7.

Because defendant did not request the court to charge the crime of receiving stolen property as a lesser-included offense, defendant must show that the charge was clearly indicated by the evidence. Defendant has failed to do so. There was no evidence presented to the jury from which it could have reasonably concluded that defendant had received the stolen motor vehicle as opposed to unlawfully taking the motor vehicle during the carjacking. There is nothing in the record that explains how defendant came into possession of Prochette's car keys, other than he was the individual who had carjacked Prochette. Because the record does not provide a rational basis for the jury to have convicted defendant of the crime of receiving stolen property, it was not error, much less plain error for the trial court not to have provided the jury with the lesser-included instruction.

II.

In Point II, defendant argues that the trial court improperly interjected itself into the case in favor of the State. Defendant contends that the court repeatedly "interfered with the questions of witnesses by cross-examination by defense counsel," depriving defendant of his rights to due process and confrontation under the Federal and this State's Constitutions. We disagree.

"While a trial judge may limit the interrogation of a witness and presentation of evidence to 'avoid needless consumption of time,' N.J.R.E. 611(a)(2), time constraints should not deprive a party of a fair opportunity to present its complete case to the jury." Espinal v. Arias, 391 N.J. Super. 49, 61 (App. Div.), certif. denied, 192 N.J. 482 (2007). The trial judge also has the right to intervene in a criminal trial by questioning a witness in order to clarify existing testimony or elicit further testimony. State v. Taffaro, 195 N.J. 442, 450 (2008). The judge must be careful, however, not to "throw his judicial weight on one side or the other," State v. Zwillman, 112 N.J. Super. 6, 21 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971), because "an unwarranted comment by the judge can be as prejudicial, or more harmful, than one by the prosecutor." State v. Meneses, 219 N.J. Super. 483, 488 (App. Div. 1987), certif. denied, 110 N.J. 156 (1988). Indeed, "[w]hen a judge questions a witness in such a way that he [or she] takes over the role of the prosecutor, it can give the jury the impression that the judge does not believe the witness, and that impression can deny the defendant his right to a fair trial.

Not showing bias is particularly important when a criminal defendant is testifying, and a judge must scrupulously insure that his questions do not evidence disbelief." [State v. O'Brien, 200 N.J. 520, 535 (2009) (internal citations omitted).]

Defendant argues that the trial court improperly prevented Milos from answering a question asked by defense counsel, "foreclosing a line of questioning regarding her bias, thereby abridging defendant's rights to due process of law and confrontation under both United States and New Jersey Constitutions." Defendant contends "there was a fair inference [from the facts adduced at trial] that [Milos] may have been a suspect in the case." Defendant asserts that "[i]f Milos was aware of being a suspect, such a state of mind would prompt a line of questioning about whether she was afraid of renewed prosecution if she did not testify against defendant."

A defendant's right to confront witnesses is guaranteed by both the Federal and New Jersey Constitutions. State v. Bubis, 125 N.J. 519, 530 (1991). This right of confrontation affords a defendant the opportunity to cross-examine the State's witnesses, protects against improper restrictions on the questions asked during cross-examination, and affords the accused the right to elicit favorable testimony on cross-examination. Id. at 530-31.

However, there are limits on the constitutional right to confrontation. "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Del. v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986).

Nonetheless, a defendant must be given an opportunity to adequately cross-examine an adverse witness to uphold his or her constitutional right to a fair trial. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed. 2d 347, 353 (1974). "It is well established that '[e]very fact or circumstance tending to show the jury the witness' relation to the case or the parties is admissible to the end of determining the weight to be given to his evidence.'" State v. DiRienzo, 53 N.J. 360, 383 (1969) (quoting State v. Spruill, 16 N.J. 73, 78 (1954)).

Here, the prosecutor had completed re-direct examination of Milos concerning prior testimony she had given in a related 2003 proceeding. Defense counsel proceeded with re-cross examination of the witness during which the following colloquy occurred:

DEFENSE COUNSEL: You never actually saw Jimmy Prochette's car being moved, did you?

WITNESS: Being moved?

DEFENSE COUNSEL: Yes, after this individual with the mask got in.

WITNESS: I had left then.

DEFENSE COUNSEL: Initially, were you viewed as a suspect in this crime?

PROSECUTOR: Objection

THE COURT: Sustained.

DEFENSE COUNSEL: No further questions.

Following the court's ruling, defense counsel never sought to make an offer of proof as to a factual basis for inquiring whether Milos possessed any knowledge that she may have been suspected by the police as a co-perpetrator in the carjacking.

We agree that where witnesses have either been charged or were the subject of investigations of pending charges, defendant has a right to cross-examine the witness concerning the dismissal or promise of dismissal of pending charges, or the cessation of the criminal investigation to show the witness' bias. Davis, supra, 415 U.S. at 313-14, 94 S.Ct. at 1109, 39 L.Ed. 2d at 352; Van Arsdall, supra, 475 U.S. at 675-76, 106 S.Ct. at 1433-34, 89 L.Ed. 2d 680-81; State v. Spano, 69 N.J. 231, 234-35 (1976). However, here, such is not the case.

The question concerning whether Milos was aware that she might have been anytime considered a suspect was not propounded to the witness during her cross-examination. Rather, it arose during re-cross examination and exceeded the scope of the prosecutor's re-direct examination. More importantly, there is no evidence that Milos was ever considered a suspect in the investigation by the police. To the contrary, it appears that she cooperated with the police throughout the investigation and testified several years prior to trial against a juvenile who had been involved in the incident. We find no error in the trial court's ruling, without defendant having made an offer of proof, concerning whether the witness had ever been charged, investigated, or at least suspected by the police as possibly being involved in the incident.

Defendant next claims error when the trial court sustained the State's objection to defense counsel asking Prochette if he had previously viewed photographs of Milos. The court sustained the objection on the basis that it was beyond the scope of direct examination. However, the court allowed defendant to subpoena Prochette as a witness, and stated that it would grant a recess to accommodate defendant if defendant so chose. Despite this opportunity, defendant did not call Prochette as a witness. What is more, defendant questioned Dalton about the photos of women shown to Prochette. Thus, defendant had the opportunity to elicit from Dalton the same information he sought to elicit from Prochette.

Defendant next asserts that the trial court improperly "wrangled with defense counsel during his cross-examination of Milos, regarding a prior inconsistent statement that she made at an earlier hearing." We disagree. During cross-examination of Milos, counsel confronted her with testimony that she previously had given in a related proceeding on March 7, 2003, wherein she stated "[w]hen Jimmy [Prochette] got carjacked, I wasn't with him at that point." The court asked Milos what she meant by her prior statement that she was not "in the car when it got carjacked." Milos had previously stated in 2003 "[w]hen Father got into the car, and others was on the other side of the car, when Father reached in, when he grabbed, I turned around and got into the other car. After that, when I had left my vehicle, I do not know what happened afterwards." In clarifying, the court asked Milos "you didn't mean you weren't there. You meant you weren't in the car when it physically got taken?" Milos answered "exactly. I was told to move." We are satisfied the trial court properly intervened to clarify the witness's testimony.

Defendant complains next that the court inappropriately interjected itself during the State's direct examination of Rocco by asking the witness why she had been requested to look through a group of photographs at police headquarters. In so doing, the court asked Rocco whether at the time she knew the perpetrator by any name other than "Father." After the witness responded in the negative, the court stated "[a]nd that's why the police had you looking at pictures, because you couldn't give them a different name. All you could give them [was] the name Father?" Rocco responded "[c]orrect." We find no error with the court's questioning which merely enlightened the jury as to the purpose of the identification process.

Defendant argues that the court improperly interjected itself into an issue as to how long Rocco had known defendant, and "chastised defense counsel" on the point. The record does not support this argument. After some confusion over the length of time Rocco had known defendant prior to the incident, the court called a sidebar, at which the court said to defense counsel:

I'm just trying to get a timeframe. If it's a month, or two months, I don't mean to limit it. But, [defense counsel], I don't want to go through, you know, the history of the world part two here.

If you're doing this to see how many times she came in contact with him to make a positive identification and how well she associated with this person that she's identified... I'll give you some latitude, but this is beyond the scope.

To a certain extent, because the outof-court identification is an issue, I'll give you some latitude, but let's not beat it to death. All right?

Defendant asserts that counsel did not pursue Rocco's familiarity with defendant after this sidebar. Contrary to defendant's argument, the trial court neither chastised counsel nor limited counsel's cross-examination of Rocco. That counsel did not press the issue further by continuing cross-examination of Rocco was counsel's strategic choice.

Defendant next contends that the trial court improperly interjected itself in defendant's cross-examination of Rocco concerning the carjacking:

DEFENSE COUNSEL: Okay. Then did an individual in a mask get into Jimmy Prochette's car?

THE WITNESS: Correct.

THE COURT: Well, it didn't happen in a series, it happened all at one time, didn't it?

I mean, [defense counsel], you're saying "and then," "and then," "and then."

THE WITNESS: She wasn't in my car when the person came up, she wasn't already in the car.

THE COURT: That's what he's trying to establish. This all happened at the same time, didn't it, simultaneously?

THE WITNESS: Correct.

THE COURT: She was moving around the car; the person in the mask was getting in the other car; there was a scuffle in the other car?

THE WITNESS: Correct.

THE COURT: This is all going on at the same time?

THE WITNESS: Correct.

THE COURT: In a matter of seconds?

THE WITNESS: Correct.

THE COURT: We're dragging it out here for hours. Let's move it along.

Although we agree that it would have been better for the court not to have expressed its request that counsel not repeat questions previously asked in front of the jury, we discern no error warranting reversal. In overseeing a trial, the court has the inherent authority to limit questions of witnesses for the purpose of "affording needless consumption of time." N.J.R.E. 6:11(a)(2).

Defendant next takes exception with the trial court's questioning of Rocco during re-direct when the court elicited that Rocco could have just told Dalton where defendant lived rather than have gone through the photograph identification process. Rocco admitted that at the time, she was a reluctant witness and only answered the questions Dalton asked. Defendant claims that this colloquy bolstered the State's case. We disagree. Rocco's unwillingness to cooperate with the police equally tended to reflect negatively on her credibility.

Finally, defendant argues that the trial court's disruption of the State's testimony to explain the Attorney General Identification Guidelines concerning the procedures police departments must follow when exhibiting photographs to witnesses unfairly prejudiced him.

In the midst of Ward's testimony about the photographic lineup procedure used in this case, the court interjected, apprising the jury that the procedure the police were required to follow is governed by the Attorney General Guidelines. The court told the jury that the purpose of the Guidelines was "[s]o that there can't be any subliminal communication about the photographs that are being exhibited." We find nothing improper with this interjection. The court simply provided a brief explanation to clarify Ward's testimony. Moreover, the court consulted with both counsel, and they agreed that the explanation should be given.

In furtherance of his arguments that the trial court improperly interjected itself into the case, defendant cites O'Brien, supra, 200 N.J. at 520. Defendant's reliance on O'Brien is misplaced.

In O'Brien, the defendant was accused of murdering his parents. Id. at 523. Defendant's defense was diminished capacity, which he attempted to prove through his own testimony and the testimony of an expert psychiatrist. Ibid. During the trial, the court questioned various witnesses, including defendant and his expert. Because that questioning "made it seem as though the [court] did not credit the proper defense," the Supreme Court reversed the appellate court's affirmance of the conviction, determining that the trial court's questioning "had denied defendant a fair trial." Ibid.

The Court concluded that the trial court's questioning "express[ed] clear disbelief in the witness's conclusions," and "even deconstructed the timeline of the day of the crime, including taking judicial notice of the time it takes to drive from Newark to Toms River, in an obvious effort to show that too much time had elapsed since defendant's last ingestion of drugs for him to have been under the influence when he initialed his statement." Id. at 538. The Court determined that "[t]hose repetitive questions... specifically suggested that the witness was testifying contrary to the documents in evidence." Ibid. Lastly, the Court found that "the [trial court's] questioning was gratuitous and evidenced incredulity with respect to defendant's only defense, along with support for the State's witness." Id. at 539. Here, the trial court's interjections into the present case do not rise to the level of interference and improper expression of a witness's credibility as in O'Brien.

Moreover, in its final charge, the trial court instructed the jury concerning the court's questioning of witnesses during the trial. The court stated:

I've attempted to rule accurately and fairly in accordance with our requirements and our rules of evidence. The rulings I have made should not in any way be taken to indicate that the [c]court has an opinion or belief as the merits of the case. The law does not allow the [c]court to have an opinion one way or another.

Also, if I've asked questions of witnesses, and I remind you that I did in this case, I remind you it was for the sole purpose of eliciting information for your benefit. And you are not to draw any inference from the fact that I've asked questions of any witnesses.

Questions asked by the [c]court are not to be taken as an indication of any belief or opinion on the part of the [c]court as to how the case should be decided. Remarks made by one counsel or another or between counsel and the [c]court and questions by counsel are not evidence and are not to be considered by you in any way, nor are they to have any effect on your deliberations.

Hopefully[,] you will agree that the general tone of the trial has been civil and courteous. Nevertheless, I may have admonished one or the other of the attorneys in the course of the trial. If I did any such admonitions are not to reflect in any way on the merits of the case or upon the party whom that attorney is representing.

We have considered each of defendant's contentions that the trial court improperly interjected itself into the trial and conclude that none of them rise to plain error. R. 2:10-2. If the trial court may have expressed itself in a curt manner in addressing counsel, we are satisfied that any adverse effect was cured by the court's final instructions.

III.

Defendant argues in Point V that the trial court improperly used the terms "guilt or innocence" in its jury instructions thus conveying to the jury that it was required to choose between whether defendant was guilty or innocent, not whether the State had proven the charges beyond a reasonable doubt. Although it would have been better for the trial court not to have used the terms guilt or innocence during its jury instructions, we disagree that the use of those terms rises to plain error.

"[T]he State bears the burden of proving beyond a reasonable doubt every element of an offense." State v. Medina, 147 N.J. 43, 49 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed. 2d 688 (1997). The reasonable doubt standard "provides concrete substance for the presumption of innocence, and reduces the risk of wrongful conviction." Id. at 50 (internal quotations omitted). The Medina Court held that trial courts are required to provide criminal juries with a standard definition of reasonable doubt, id. at 61, and that standard definition does not reference the term "innocence."

When a defendant raises error in the jury charge, we examine the charge in its entirety, not just the isolated part challenged, to determine the overall effect of the instruction. State v. Robinson, 165 N.J. 32, 47 (2000). "[I]f on reading the charge as a whole, 'prejudicial error does not appear, then the verdict must stand.'" State v. Ramseur, 106 N.J. 123, 280 (1987) (quoting State v. Council, 49 N.J. 341, 342 (1967)).

Nevertheless, errors in jury instructions in criminal cases are "'poor candidates for rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)). Moreover, "[a] jury instruction that fails to communicate the State's burden to prove guilt beyond a reasonable doubt is not amenable to harmless-error analysis and requires reversal." Medina, supra, 147 N.J. at 50.

The issue presented here was also addressed in State v. White, 360 N.J. Super. 406 (App. Div. 2003). There, this court cautioned that:

Although we do not consider the use of the phrase "guilt or innocence" throughout the charge error which in isolation would require a new trial, we comment on its use because a new trial on count two is required. A jury is asked to consider the evidence and determine whether a defendant is guilty beyond a reasonable doubt. If the jury concludes that the State has not carried its burden of proof, it returns a verdict of not guilty. A verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof.

The trial judge provided a reasonable doubt charge consistent with the rule announced in State v. Medina, 147 N.J. 43 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed. 2d 688 (1997). The injection of the concept of innocence, however, may tend to reduce the State's burden of proof because of the starkly different choices presented to the jury. Therefore, the use of the term "guilt or innocence" should be avoided in the future. [Id. at 413.]

See also State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005) (finding that the trial court's single reference to the terms "guilt or innocence" did not affect the jury's verdict).

Here, the trial court began its jury charge by instructing the jury: "You're aware, of course, that you have been selected to sit as a jury to determine the question of the guilt or innocence of Shaquill Allah charged with [(listing the counts)]." Immediately thereafter, the judge used the term twice more:

I've already informed you that the indictment is not evidence of the defendant's guilt and is not related in any way to his guilt or innocence. I remind you it serves a twofold purpose. The first is to inform the defendant of the charges against him so that he might prepare his case. The second is to bring the matter before a jury for determination of innocence or guilt based solely on the evidence that's presented at trial.

The judge used the terms a fourth time, again near the beginning of the charge when he instructed the jury that "[o]ne of the most important reasons for the existence of our jury system is to bring to bear on the question of the defendant's innocence or guilt the collective common sense of you the jury."

Immediately following the trial court's reference to the terms "guilt or innocence," the court instructed the jury as to the State's burden of proof:

Ladies and gentlemen, every defendant in a criminal case, this defendant, is presumed innocent unless and until proven guilty beyond a reasonable doubt. This presumption has cloaked and protected the defendant from the moment that he was charged. And it will continue throughout your deliberations in the jury room unless and until you determine that the State has proven the defendant's guilt to you beyond a reasonable doubt.

Some of you may have served as jurors in civil cases where you were told that it was necessary to prove only that a fact is more likely true than not true. In criminal cases the Government's proof must be more powerful than that. It must be proof beyond a reasonable doubt.

A reasonable doubt is defined as an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would harbor. Proof beyond a reasonable doubt, for example, is proof that leaves you firmly convinced of the defendant's guilt.

In this world we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If based on your consideration of the evidence you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of the defendant's guilt, you must give the defendant the benefit of the doubt and find him not guilty.

We are satisfied that the trial court's inadvertent and infrequent reference to the terms of "guilt or innocence" at the beginning of the jury instruction did not affect the jury's verdict. Immediately following the reference to the terms of guilt or innocence, the trial court properly instructed the jury as to the State's burden of proof beyond a reasonable doubt.

Moreover, subsequent to the Medina instruction, the court instructed the jury on more than twenty other occasions that the State was required to prove each element of each crime charged beyond a reasonable doubt.

IV.

Lastly, we address defendant's argument that his sentence is excessive. Defendant does not argue that he does not meet the criteria of a persistent offender under N.J.S.A. 2C:44-3a, rather, defendant contends that "the imposition of a maximum extended life-term of imprisonment consecutive to the recently imposed 30-year NERA term for an unrelated robbery was unduly severe." Defendant also asserts that "[t]he judge failed to take into account the overall impact of the two sentences." Based on defendant's extensive criminal record, we disagree.

An appellate court reviews a trial court's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 n. 4 (2006). We "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990). However, an appellate court may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

The court sentenced defendant on his conviction of carjacking to an extended term of life and to a twenty-year concurrent term on his conviction of robbery, both sentences subject to NERA's period of parole ineligibility and to a five-year period of parole supervision upon release. The court ran the sentences consecutive to a thirty-year term of imprisonment defendant was then serving for a home invasion robbery. The carjacking offense occurred while defendant was out on bail. Because defendant committed the present crimes of carjacking and robbery while he was on bail, the court properly ran the sentences consecutive to the sentence defendant was then serving for the home invasion robbery. N.J.S.A. 2C:44-5h. Although defendant's sentence is severe, it is not manifestly excessive when one considers defendant's extensive criminal record.

V.

We have considered defense counsel's remaining arguments and the arguments made by defendant pro se. All of the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20100802

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