August 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
EUGENE THOMAS A/K/A LEWIS THOMAS, LEWIS THOMAS, JR., THOMAS LEWIS, JENE LOUIS, EUGENE THOMAS, EUGENE L. THOMAS, LOUIS E. THOMAS, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 06-12-3861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2010
Before Judges Parrillo and Lihotz.
Defendant Eugene Thomas appeals his conviction following a jury trial and the sentence imposed for third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count four) and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count five). Defendant had been acquitted on the first three counts of the indictment, charging armed robbery, and the court overturned his conviction for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six), after a motion for judgment notwithstanding the verdict.
On appeal defendant argues:
TRIAL COURT ERRED IN EXCLUDING DEFENDANT'S CHARACTER WITNESSES FROM TESTIFYING ON HIS BEHALF.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE WHETHER ARREST OR INCIDENT REPORTS FROM THE EAST ORANGE POLICE DEPARTMENT EXI[S]TED.
THE SENTENCING COURT ERRED IN IMPOSING AN EXTENDED TERM ON DEFENDANT BASED UPON CHARGES OF WHICH HE HAD BEEN ACQUITTED AT TRIAL.
THE SENTENCING COURT ERRED IN IMPOSING TWO EXTENDED TERMS ON DEFENDANT.
THE SENTENCING COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.
The State requests leave to file a cross-appeal out of time, challenging the entry of an acquittal on count six.
Following our review of these arguments in light of the record and applicable law, we affirm defendant's convictions, but reverse and remand for re-sentencing in light of the court's imposition of concurrent extended terms, in contravention of N.J.S.A. 2C:44-5(a)(2). Finally, we deny the State's request for leave to file a cross-appeal.
The facts are taken from the trial record. On October 17, 2006, Nathaniel Wright was at home in his apartment in Newark along with his girlfriend Sabrina a/k/a "Sebrina" Boone, his roommate Ramon Matthews, and Matthews's girlfriend. Nickie Shenik, a friend of Matthews whom Wright also knew from the neighborhood, stopped by the apartment accompanied by defendant. She produced some of defendant's jewelry and asked if she could leave it with Wright as collateral for a thirty-dollar loan. Wright was willing to loan Shenik the money and agreed to hold the offered collateral. Shenik and defendant left the apartment, and Wright placed the jewelry in a bedroom drawer.
The next morning, defendant returned to Wright's apartment. He first spoke to Wright's brother, David, who lived in the apartment below. David took defendant to Wright's door, where Wright greeted them. Defendant then went to his "red jeep or truck" to retrieve a backpack and returned to speak with Wright and asked him whether he was interested in purchasing a camcorder; Wright declined. Defendant then forced his way into the residence, insisting he had something in the backpack to show Wright.
Wright assumed defendant wanted to collect the jewelry left as collateral, so he turned his back on defendant, attending to food cooking in a microwave. Defendant withdrew a sawed-off, twelve gauge, double-barrel shotgun from his backpack, placed it against the back of Wright's neck and announced "[y]ou know what it is." Wright offered defendant the few dollars he had in his pocket, after which defendant removed the gun from his neck.
Defendant forced Wright and Matthews into a bedroom where Boone was sleeping. Defendant forced the men to undress, emptied the bedroom drawers, and demanded money and jewelry. Defendant returned the gun to his backpack and exited the apartment. Apparently, Shenik and Matthews' girlfriend were asleep in a separate bedroom and were not disturbed by the events.
After defendant left, Wright called 9-1-1. Newark Police Department Detective Frances Soto was dispatched to the residence. After brief interviews, Soto had Wright and Boone transported to police headquarters to review photo arrays. Both identified defendant as the individual who robbed them. David also identified defendant as the man he accompanied to his brother's door that morning.
A computer records check revealed defendant resided with Denise Boswell, who owned a burgundy or red Ford Explorer. Soto transmitted a "BOLO" alert*fn1 for the Explorer. On October 19, 2006, the East Orange Police Department notified Newark it had detained the vehicle. Soto and her partner were dispatched to the scene where they found defendant had been taken into custody. Defendant was taken to an East Orange police station awaiting a Newark patrol car equipped with a cage for prisoner transport. The Explorer was secured and towed to Newark.
The next day, detectives located Boswell, informed her of defendant's arrest, and the location of her vehicle. Boswell signed a consent allowing police to search the Explorer, which revealed a backpack containing a sawed-off double-barrel shotgun. The gun contained two live rounds and additional rounds were located in the backpack. No cash or jewelry was found in the car. Defendant was subsequently indicted.
At trial, the State's three primary witnesses - Wright, Boone, and Boswell - provided testimony contradicting their earlier statements to police shortly following the incident. The inconsistencies included: (1) Wright's initial statement contained no reference to being forced to disrobe or that his drawers were emptied by defendant; (2) Boone admitted telling detectives she did not recall seeing defendant prior to the robbery, but at trial maintained he was in the apartment the night before, although she had not paid attention to him; and (3) Boswell confirmed she allowed defendant to use her vehicle, but suggested he did not have access to it the morning of October 18, 2006, because she had dropped him off at his job in East Orange, in contrast with her initial statement that she had not seen defendant for "a couple days," and he had taken her car. Additionally, Boswell asserted she signed the consent form because the police advised it was a pre-requisite for the return of her Explorer.
Defendant's mother testified that he was working on the date of the robbery and the day prior, as well. She was uncertain whether defendant was driving Boswell's car.
Boswell also was called to testify by the defense. She explained defendant returned to their home on October 17, 2006 with no shirt, claiming he had been in a fight. She was suspicious, particularly after an unknown woman called later that evening asking to speak with him. The next morning, defendant and Boswell argued while she drove him to his job. At that time, defendant proposed to move out until the dispute was resolved. When he returned to their home that evening, Boswell allowed him to use the car to remove his belongings.
Defendant testified in his own behalf. He endorsed Boswell's trial testimony of the events, adding that he had driven the Explorer to Wright's house after work on October 17, 2006, because he wanted to confront him for being an alleged drug dealer, selling drugs to children in the neighborhood. The two fought, defendant besting Wright, then defendant returned home. He was stopped by police two days later and professed no knowledge of the backpack in the car or its contents.
During the N.J.R.E. 104(a) hearing, defendant presented two proposed character witnesses. The first was former Columbia University professor Kal Wagenheim, who was introduced to defendant in 2000 at a creative writing program conducted for inmates at Trenton State Prison. Defendant, then incarcerated, attended Wagenheim's monthly programs until his release in 2006. Wagenheim was prepared to testify he had developed and maintained a relationship with defendant after his release and that, in his opinion, defendant was truthful and "seemed to have a good reputation" in East Orange, where he worked at the Urban Youth Development Corporation. The second potential witness was attorney Peter Maduabum, whose office is located in the same building as defendant's employer. Maduabum stated he and defendant had "struck up conversations and  discussed different ideas," and defendant seemed like a "gentle guy, respectful, [and] polite." However, he acknowledged the two did not have a social relationship, and he could not testify as to defendant's behavior or reputation "outside of the confines" of the office building. After finding neither witness possessed adequate knowledge to testify regarding defendant's reputation in the community at issue, the trial judge excluded their testimony.
The jury acquitted defendant of the three counts of armed robbery, convicted him of possession of a sawed-off shotgun (count four), unlawful possession of a weapon (count five), and possession of a weapon for an unlawful purpose (count six). Defendant obtained new counsel who argued a motion filed by prior counsel for acquittal, notwithstanding the verdict on count six, which was heard prior to sentencing. The State also moved for an extended-term sentence, pursuant to N.J.S.A. 2C:44-3(a).
The court determined the motions and imposed sentence as follows:
[Defendant has] a horrendous record. And I've seen many records before, but I've never seen one that was quite this horrendous.
I note that you have people that have come to [c]court, various people [who] have faith in you and  believe that you  have changed from the person that you were.
However, I cannot get out of my mind that I also was the person that had to hear the testimony of the victim in this matter prior to trial even starting. This was not a small man, but I clearly remember, this man was terrified. I don't know, I mean obviously he sits a lot closer to me on the witness stand than you do, he was visibly shaking even to look in your direction.
Pursuant to State v. Dunbar [108 N.J. 80 (1987)] a thorough multi-step analysis is necessary to determine whether to grant the State's request [for an extended term].
The first is to find that [defendant]  is a persistent offender, and that he has been convicted as an adult. [Lists previous convictions.]
The second is after a thorough review of [defendant's] record, I have determined that an extended term is appropriate in this matter.
Third, I find that there are no mitigating factors.
Fourth, a review of your record reveals that as a juvenile, you pled guilty on three separate occasions to a robbery, receiving stolen property and terroristic threat charges. As an adult, you have been charged and convicted under seven separate indictments charging you with first-degree robbery on each indictment. And also on three indictments  it is alleged that [there were] weapons charges and then second-degree kidnapping charges.
After applying aggravating factors three (risk of recidivism), six (extent of prior criminal record and seriousness of offenses), and nine (the need for deterrence) and determining no applicable mitigating factors, the court sentenced defendant to concurrent extended terms of seven years incarceration on counts four and five, and granted defendant's motion to dismiss count six, finding it constituted "an inconsistent verdict" in light of the robbery acquittals.*fn2
Defendant timely filed this appeal, but did not serve the State with his brief and appendix on appeal until October 1, 2009. The State was then prompted to "review  the transcripts and all of the appellate materials," then recalled it had neglected to cross-appeal from the court's dismissal of count six. A Motion for Leave to File Cross-Appeal nunc pro tunc was filed on October 29, 2009.
Defendant first challenges the court's exclusion of the testimony of his proposed character witnesses, suggesting his right to present a defense included presentation of the two improperly excluded witnesses. We are not persuaded by his arguments.
We give "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). A trial judge's decision to admit or exclude certain evidence is reviewed under an "abuse of discretion" standard. State v. Kemp, 195 N.J. 136, 149 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)); see also Pressler, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2010).
Whether proffered opinion or reputation evidence fits under the rubric of permissible character testimony is governed by N.J.R.E. 404, which, in relevant part, provides:
(a) Evidence of a person's character or character trait... is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion except:
(1) Evidence of a pertinent trait of the accused's character offered by the accused... or by the prosecution to rebut the same;
(c) Evidence of a person's character or trait of character is admissible when that character or trait is an element of a claim or defense.
N.J.R.E. 404 cannot be read in isolation; any analysis of the propriety of character evidence is limited by the methods by which such proofs can be adduced, as explained in N.J.R.E. 405(a), which provides:
When evidence of character or a trait of character of a person is admissible, it may be proved by evidence of reputation, evidence in the form of opinion, or evidence of conviction of a crime which tends to prove the trait. Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible.
The character evidence proffered by defendant was opinion or reputation evidence. "Even if the evidence proffered is properly characterized as character evidence and is in the correct form of opinion or reputation evidence, that evidence nevertheless must be relevant as a prerequisite for admissibility." State v. Mahoney, 188 N.J. 359, 372 (citing N.J.R.E. 402), cert. denied, 549 U.S. 995, 127 S.Ct. 507, 166 L.Ed. 2d 368 (2006). The trial court has discretion to determine whether the evidence supports a trait "pertinent" to the offense and whether those who propose to attest to the trait have proffered a sufficient foundation for doing so. See Biunno, N.J. Rules of Evidence, comment 4 on N.J.R.E. 404 (stating the court may require evidence to "relate to a character trait directly involved and apply to a relevant time and place in the defendant's life[,]" and exclude evidence where the witness "does not possess the requisite qualifications or information" to testify regarding a defendant's character); see also State v. Reyes, 50 N.J. 454, 468 (1967); State v. Sinnott, 24 N.J. 408, 420-21 (1957); State v. Raymond, 46 N.J. Super. 463, 467 (App. Div.), certif. denied, 25 N.J. 490 (1957).
Applying these principles, we conclude the trial court correctly ruled defendant's proffered character witnesses could not properly testify as to their opinion of his reputation in the community due to their limited or aged interaction with him. Following the examination of Wagenheim and Maduabum, during the N.J.R.E. 104(a) hearing, the court found:
[In] review[ing] the case law and the Rules of Evidence, particularly 803[(c)(21)] and 404(b),*fn3 and on both of them it's very clear that an individual that testifies as to character must know the individual's character within a defined community. Granted, [Maduabum] is familiar with [defendant's] reputation within [the nonprofit's office complex]. However, that does not address the confines of what the rule requires[.]... I'm not under the impression from the information that was solicited from [Maduabum] that he sufficiently knows [defendant] to even develop an opinion to testify on the basis of character[.]
As to [Wagenheim], I do not believe that he sufficiently knows [defendant] from a community standpoint to offer any information towards his character. It appears to me the community that he knows him from is maybe the Trenton State Prison writing group, but I do not believe that even begins to touch the criteria[.]
Wagenheim's interaction with defendant was fifteen to twenty students attending monthly writing class. Wagenheim explained the inmates "would just sit around a table, and I encouraged them to write poems, stories, essays." Wagenheim "encouraged" defendant to continue writing after his release from prison, as he was "a very talented young writer... who has a very sincere concern for trying to improve things in the community," and who had been truthful in that setting. However, since defendant's release, the two saw each other only "once or twice" at "street festivals."
Maduabum was even less committal regarding defendant's character, stating he recalled only one conversation with defendant where the two discussed the potential efficacy of "bringing a class action against liquor stores that are in the intercity neighborhoods." He explicitly claimed he was unable to form an opinion with regard to defendant's truthfulness. Maduabum did not work with defendant and could not identify where exactly in the building defendant worked.
Neither Wagenheim nor Maduabum offered a sufficient foundation for testimony regarding defendant's character for truthfulness or whether he lacked a propensity towards violent behavior. Each fell short of expressing sufficient personal knowledge of defendant's reputation, as required of all witnesses pursuant to N.J.R.E. 602, (stating that, subject to certain exceptions not at issue, "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter"). We determine no basis to reverse this determination.
Defendant next argues trial counsel was incompetent in failing to investigate whether arrest or incident reports had been prepared by the East Orange Police Department, suggesting they may have contradicted Soto's trial testimony of the events and any utilized procedures. We reject defendant's contentions that counsel was ineffective.*fn4
To prevail on a claim of ineffective assistance of counsel, a defendant must prove both that counsel's performance was objectively deficient, and that these deficiencies had a prejudicial effect on the ultimate judgment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). This standard was applied to the New Jersey Constitution by the Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. Defendant must point to "specific errors," which rise above the level of general trial strategy. United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.Ct. 2039, 2047 n. 26, 80 L.Ed. 2d 657, 668 n. 26 (1984); Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In New Jersey, counsel's efforts are measured only by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53.
The record is clear that, although sought, no reports from the East Orange Police Department were provided in discovery and Detective Soto stated she was unaware whether any reports were prepared. Defendant's second counsel recited the nature of his investigation, which also unearthed no reports. He stated:
When I took over the file, I subpoenaed East Orange to see if there were any records on the date that [defendant] was apprehended. I had a subpoena served on them by [an] Investigator... of the Public Defender's Office. He informed me that he had served the subpoena [and] East Orange told him if they had anything it was given to [the prosecutor].
I spoke to [the prosecutor] who told me that she did not receive anything from East Orange pursuant to her request as an officer of the [c]court. And I [sus]pect that if she would have had something that she would have given it to me or certainly to [first defense counsel] at the time of trial.
"[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (citing R. 1:6-6). Defendant has made no such showing, and his argument is rejected. He cannot prevail by mere "bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We would be remiss if we did not note that trial counsel successfully presented defendant's case, secured an acquittal on the three first-degree charges, and filed the motion that led to the dismissal of count six. Defendant's convictions for unlawful possession of the sawed-off shotgun, found in the car he was driving when apprehended, were amply supported by the trial evidence. We conclude defendant has failed to establish a prima facie showing of ineffective assistance of counsel.
We now examine the challenges to defendant's sentence. In reviewing the sentence imposed by a trial judge, we defer to the court's exercised discretion when "based upon findings of fact that are grounded in competent, reasonably credible evidence," and which applied "correct legal principles[.]" State v. Roth, 95 N.J. 334, 363 (1984). A sentence may be modified only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.
Defendant concedes he met the minimum criteria for imposition of an extended term of incarceration for persistent offenders, as set forth in N.J.S.A. 2C:44-3(a), but suggests the court based its decision, in part, on the armed robbery offenses for which he was acquitted. Defendant identifies as error the trial judge's statements referencing the palpable fear of the victim when he testified.
The State counters that the court's comments related to defendant's allocution, which included "numerous outrageous statements" suggesting collusion between his trial counsel and the State. Defendant also attempted to minimize his past criminal record and asserted, "I'm not a risk. Despite the fact that these [are] serious charges, no one was physically harmed and I wasn't found guilty of anything."
We determine the court's remarks cited by defendant were in response to his claims that he was a better person who helped others and who should receive a probationary sentence. These prefatory comments were not actually part of the findings and conclusions of the court in imposing sentence. The seven-year term imposed was permissible, N.J.S.A. 2C:44-3(a) and N.J.S.A. 2C:43-7(a)(4) (stating that in the case of a third-degree crime, the extended term shall be fixed by the court "between five and [ten] years"), and more than justified by defendant's thirteen adult arrests, including eight prior indictable offenses; the sentence does not shock our judicial conscience. Moreover, this offense occurred only seven months after his release from prison. In this respect, defendant's sentence is not excessive.
The defendant and the State agree the court erred in imposing two extended terms in contravention of N.J.S.A. 2C:44-5(a)(2), which provides "not more than one sentence for an extended term shall be imposed." State v. Latimore, 197 N.J. Super. 197, 223 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985), overruled on other grounds, State v. Camacho, 153 N.J. 54, 73 (1998).
We need only briefly address the State's untimely cross-appeal seeking re-instatement of defendant's conviction on count six of the indictment, pursuant to Rule 2:3-1(b)(3).*fn5 Rule 2:4-2(a) provides that any cross-appeal must be filed "within 15 days after the service of the notice of appeal or the entry of an order granting leave to appeal." The State offers no explanatory basis to justify its failure to timely file the cross-appeal. The inexcusable delay, in excess of seven months, exceeds what is reasonably contemplated by Rule 2:4-4(c), permitting relaxation of the filing constraints. The State's cross-appeal will not be considered.
Defendant's conviction is affirmed, as is his sentence on count four. We vacate the sentence on count five and remand for re-sentencing, as provided in this opinion. The State's request for leave to file a cross-appeal out-of-time is denied.