On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-03-0367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Defendant Victor Baylor appeals from his conviction by a jury on charges of armed robbery and related offenses. He also appeals his sentence as excessive. We affirm defendant's conviction and sentence for first-degree armed robbery. We reverse his conviction on aggravated assault and firearms charges and the consecutive sentence imposed on one of those charges.
The relevant facts were developed at trial through the testimony of police officers and the victims of the robbery. On the night of October 24, 2005, Segundo Reyes, the owner of Santana Deli in Trenton, was sitting near the cash register in his store. Three of Reyes's family members were working in the store - his nephew, Luciano Peralta; his daughter, Yvonne Reyes; and his brother, Teofilo Reyes-Peralta. One or more customers were also present.
Shortly after 9:00 p.m., two masked men walked into the store. Segundo*fn1 and the others described the men's masks as head coverings and clothing, like shirts, with holes cut out for the eyes and mouth and pulled over the men's faces. The shorter masked man put a handgun to the head of Segundo. Luciano, who was standing near Segundo, instinctively grabbed at the gun, and a struggle ensued. The taller masked man, who was behind the counter in the area of the cash register, punched Segundo in the face. The taller man then fought with Luciano and punched him two times in the face, causing Luciano to release the shorter man. During the fight, the loose masks of the two men came off their faces. Segundo, Luciano, and Teofilo recognized the two robbers as frequent customers of the deli.
During the fight, Teofilo yelled to Yvonne to call the police. As the struggle continued, Segundo found a small knife near the cash register and stabbed the taller man near his right eye and in the left side of his abdomen. The two robbers fled the store without taking any money.
The police immediately responded to the call for aid and spoke to the victims within minutes of the robbery. The police then checked with local hospitals and quickly learned that a man had come to the emergency room of St. Francis Hospital at about 9:30 p.m. with stab wounds above the eye and in his abdomen. Police officers were dispatched to the hospital. Detective Crosby arrived at about 10:00 p.m. and spoke to the injured man. At first, the man claimed that he had been mugged by two Hispanic men on the street. When Detective Crosby accused the man of lying, he changed his story and claimed that he had been at the Santana Deli during a robbery but had been injured while trying to help the victims fight off a robber. The police brought Teofilo to the hospital, and he immediately identified the injured man by nodding his head and saying "si, si, si, si." The injured man had given a false name when signing into the emergency room, but after the police arrested and charged him, he gave his true name, Kawan Bolt.
Later that night, Segundo, Luciano, and Teofilo were shown photographs of potential suspects at police headquarters. They readily identified a photograph of defendant Baylor as the shorter of the two robbers, whom they recognized as a regular customer of the deli. Segundo and Luciano also knew his name was Victor. At the joint trial of defendant and Bolt, the three victims identified both defendants in the courtroom as the robbers.
In the defense case at trial, Bolt testified, repeating his claim that he walked into the store while a robbery was occurring, and he tried to aid the victims against the robber. He claimed that he and Luciano had reached for the robber's gun at the same time. Bolt also testified that he had been a regular customer of the deli for two years and that he was familiar with co-defendant Baylor, although he did not see Baylor in the deli on the night of the robbery and did not see a gun. Defendant elected not to testify at trial.
The jury found both defendants guilty of all charges: (count one) first-degree armed robbery, N.J.S.A. 2C:15-1; (count two) third-degree attempted theft, N.J.S.A. 2C:5-1 and 2C:20-3a; (count three) fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4); and (count four) second-degree possession of a weapon, namely a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a. After the jury's initial verdict, the State presented evidence against defendant Baylor only on the fifth count of the indictment, second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b, and the jury found him guilty of that charge also.
At sentencing, the court merged counts two through four into count one and sentenced defendant for first-degree armed robbery to fifteen years' imprisonment, with eighty-five percent of the sentence to be served before eligibility for parole and five years of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count five, possession of a firearm by a convicted person, the court sentenced defendant to a consecutive term of seven years' imprisonment with five years of parole ineligibility. Defendant's aggregate sentence, therefore, was twenty-two years in prison with seventeen years and nine months to be served before he could be paroled. The court also imposed appropriate statutory money penalties.
On appeal, defendant makes the following arguments:
POINT I DETECTIVE CROSBY'S REFERENCES TO THE "PICTURE LINK" SYSTEM IMAGES WHICH REYES VIEWED AS BEING A MODERN VERSION OF A MUG BOOK IMPROPERLY IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT.
POINT II INADMISSIBLE HEARSAY WAS ADMITTED REGARDING THE CONTENTS OF INFORMATION PROVIDED TO POLICE DISPATCHERS AND RESPONDING OFFICERS. (Not raised below).
POINT III THE COURT ERRONEOUSLY INFORMED THE JURY OF HEARSAY INFORMATION WHICH IT RECEIVED FROM THE TRIAL INTERPRETERS REGARDING THE SPANISH TRANSLATION OF THE WORD "ASSAULT".
POINT IV THE COURT ERRED IN NOT CONDUCTING AN INQUIRY INTO THE LANGUAGE PROFICIENCY OF THE INTERPRETER WHO TRANSLATED THE TRIAL TESTIMONY OF TEOFILO AND THE EXTENT TO WHICH HER INTERPRETATION DEVIATED FROM A WORD-FOR-WORD TRANSLATION OF TEOFILO'S TESTIMONY (Not raised below).
POINT V THE TRIAL COURT'S JURY INSTRUCTIONS CONTAINED MULTIPLE DEFICIENCIES WHICH SINGULARLY AND CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL (Not raised below).
POINT VI DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS.
POINT VII DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In addition, defendant has filed a pro se supplemental brief in which he raises the following arguments:
I. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF THE INHERENTLY SUGGESTIVE OUT OF COURT PHOTO LINE UP EMPLOYED BY LAW ENFORCEMENT AT THE TIME OF DISPLAYING THE PHOTO ARRAY OF THE SUSPECT TO THE VICTIM.
II. TRIAL COUNSEL WAS INEFFECTIVE BY NOT CORRECTING THE FACTUAL ERROR ESTABLISHED BY THE STATE AT THE TIME OF THE ADMISSIBILITY HEARING TO DETERMINE WHETHER OR NOT DEFENDANT'S PHOTO ARRAY PROCEDURE WAS SUGGESTIVE THEREBY RENDERING INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHTS AND DUE PROCESS LAW.
With the exception of an erroneous jury charge concerning the nature of the weapon used by defendant, we find no error. The erroneous charge, however, requires that we reverse and dismiss three counts of conviction and vacate defendant's sentence for possession of a firearm by a convicted person.
Defendant argues that his conviction should be reversed because Detective Crosby twice referred at trial to a computer program used at police headquarters for photographic identification of the defendant, describing the program as a modern version of a "mug book."
In his testimony, Crosby identified a photograph of defendant as the one selected by Segundo through the Picture Link system and described how the system works:
This photograph was obtained by putting in the general physical descriptors of the individual. And then twelve pictures at a time come up on the computer screen, and in about every ten seconds or so you get another twelve. And it keeps going until the individual, if they see the person who is a suspect, identifies them, or we run out of pictures. It is like the old-fashioned mugbook, like they used to have in the movies.
Defense counsel did not object to Crosby's reference to a mug book. On cross-examination by the attorney for co-defendant Bolt, Crosby again referred to the Picture Link system as similar to a mug book, and again, there was no objection. Bolt's attorney then repeated Crosby's statement that the Picture Link system was similar to "the old-fashioned mugbook."
In his charge to the jury, the trial judge gave a limiting instruction about use of photographs of the defendants by the police in conducting identification procedures:
There is evidence photos that were used to identify Defendants Bolt and Baylor, in this case.... You are not to consider the fact that the Trenton Police Department obtained a photograph of defendants as prejudicing them in any way. The photographs are not evidence that a given defendant has ever been arrested or convicted of any crime. Such photographs come into the hands of law enforcement from a variety of sources, including, but not limited to driver's license applications, passports, ABC identification cards, forms of government employment, private employment requiring state regulation, applications, security guard applications, et cetera, or from a variety of other sources totally unconnected to criminal activity. So what I'm saying, the photographs come from a number of different ways. Please understand that.
A written copy of the jury charge was provided to the jury for its use during deliberations.
During deliberations, the jury requested a read-back of portions of Crosby's testimony, which happened to contain the second reference to a mug book. Defense counsel did not ask for a redaction but requested that the court restate its limiting instruction to the jury. The court did so as follows:
Before you all leave, the term mug shot was used in that description. I've already told you in the identity portion of the instructions that you have on page 14, you shouldn't consider the fact that the Trenton Police Department obtained photographs of the defendants as prejudicing them in any way. So when the phrase mug shot was used, they were describing a system, the link system, not that the defendants are in a mug shot, that type of thing. And even though you know some of the background of Mr. Bolt*fn2, you must not consider it as mug shots or anything of that nature, but that the photographs are just obtained in a variety of different ways. I commend you to read that section of the instruction, page 14.
Defendant now argues that Crosby's references were highly prejudicial and that the court's instruction was insufficient to cure the prejudice.
Because defendant did not object to Crosby's references at trial, or to the limiting instructions given by the trial judge, we review defendant's contentions on appeal under the plain error standard of review. Under that standard, an error is reversible only if it was "clearly capable of producing an unjust result." R. 2:10-2. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), overruled on other grounds by State v. Boretsky, 186 N.J. 271 (2006).
We conclude that the references to the Picture Link system as the equivalent of a mug book were error, but did not rise to the level of plain error with a capacity to have produced a result the jury otherwise might not have reached.
Although there is an "inordinate capacity for prejudice to a defendant which inheres in the jury's knowledge that he has already been convicted of a criminal charge[,]" State v. Taplin, 230 N.J. Super. 95, 98 (App. Div. 1988), "where identification is an issue and the State's use of a mug shot is reasonably related to that issue, we have held that the mug shot is admissible for that purpose, in as neutral a form as possible and despite the inferences it nevertheless raises." Id. at 99.
Reference to an identifying photograph as a mug shot was deemed to be reversible error in State v. Cribb, 281 N.J. Super. 156, 162 (App. Div. 1995). There, identification of the robber was the only issue in the case, and the victim used the phrase mug shot despite defense counsel's prior objection and notice to the prosecutor to avoid that reference. Id. at 159, 162. Also, a police detective had "exacerbated" the prejudice to defendant by testifying that he had discussed a description of the robber with other officers and they had suggested defendant as a suspect. Id. at 161. Additionally, the court's curative instruction about the reference to mug shot was inadequate. Id. at 160.
In Taplin, supra, 230 N.J. Super. 95, identification was not at issue. We held the trial court erred in admitting a photograph of defendant, despite defendant's objection, because the jury could reasonably infer the photograph was a mug shot suggestive of the defendant's prior criminal record. Id. at 99. We said there was "no purpose for its admission other than unfairly to permit the jury to draw the inference that defendant had a prior criminal record." Ibid.
On the other hand, in State v. Porambo, 226 N.J. Super. 416, 425-26 (App. Div. 1988), we held that a detective's reference to the defendant's mug shots was not plain error. The judge gave a proper curative instruction and the reference was "fleeting and not subject to prolonged examination." Id. at 425-26; see also State v. O'Leary, 25 N.J. 104, 115-16 (1957) (police officer's reference to defendant's photograph as having come from "our gallery" held not to require reversal and retrial); State v. Miller, 159 N.J. Super. 552, 561-62 (App. Div.) (reference to defendant's "mugshots" held improper but harmless, because the reference was "solitary and fleeting," and the court gave a cautionary instruction), certif. denied, 78 N.J. 329 (1978).
In this case, identification of defendant as one of the robbers was squarely in issue. The trial judge's limiting instruction, substantially the same as Model Jury Charge (Criminal), "Identity - Police Photos" (1992), was sufficient to cure any potential prejudice caused by Crosby's passing reference. The jury was also given a written copy of the instruction and, thus, could be reminded of the limited evidentiary use of defendant's photo throughout its deliberations. That neither defense attorney objected to Crosby's reference to a mug book allows our inference that, "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quotations and citations omitted).
In reading back Crosby's testimony during deliberations, the reference to a mug book should have been redacted, but defense counsel did not make such a request, and the court repeated the cautionary instruction as a reminder to the jury not to reach an improper inference from police use of defendant's photograph to conduct an identification procedure.
We conclude that, as to use of defendant's photo, the jury received "accurate," State v. Jordan, 147 N.J. 409, 422 (1997), "clear and correct jury instructions[,]" State v. Brown, 138 N.J. 481, 522 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997), and that the passing references to a mug book were not so ...