On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-10-2407.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Cuff, Fisher and Fasciale.
Shortly before midnight on August 9, 2006, Glen Davies left his home in Neptune to drive his son and his son's girlfriend to the train station in Bradley Beach. Glen's wife, Cynthia, went to bed and, after a few minutes, turned out the lights in her bedroom and fell asleep. She woke a short time later to find someone on top of her with one hand across her mouth and nose and the other at her throat. When she struggled, the intruder commanded her to be quiet and asked: "where's the money" and "is anybody else in the house?" Cynthia said the only money in the house was in her purse in the kitchen, her husband was on his way home, and their daughter was asleep in another bedroom. The intruder left her bedroom and headed toward the kitchen. With that, Cynthia locked her bedroom door and dialed 9-1-1. While awaiting the police, Cynthia watched defendant's movements through the window in her bedroom door. Defendant departed before the police arrived.
In the investigation that followed, Cynthia told police the intruder was "a black male," between "five seven and six foot" with "a thin build," and that he was "maybe" around thirty years old, possibly older. Cynthia described the intruder's face as "scruffy," "like it was unshaven and kind of scratchy." She also told police the intruder had "large teeth."
During the investigation that night, Glen Davies was asked whether he had recently seen a stranger or anyone suspicious in the neighborhood. Glen recollected that a man had come to their door approximately a month earlier asking to do odd jobs. Glen described him as "maybe like a street person, a little bit disheveled . . . a black guy, . . . on the thinnish side [and] had like bad teeth or like buckteeth."
In the morning, police showed Glen and Cynthia photographic arrays. Cynthia could not identify the intruder, and Glen could not identify the stranger he saw a month earlier, in the arrays then examined. A few days later, Cynthia examined another array consisting of six photographs, one of which depicted defendant. Upon seeing defendant's photograph, the third in the group, Cynthia exclaimed, "[t]hat's him." She was shown the same photographs in reverse order and again positively identified defendant as the man who intruded into her home on August 9, 2006. Glen was also shown this array but could not identify any of the individuals depicted as the stranger he had seen in the neighborhood approximately a month earlier.
Defendant was indicted and charged with second-degree robbery, N.J.S.A. 2C:15-1, and second-degree burglary, N.J.S.A. 2C:18-2. A trial in early 2008 resulted in a hung jury. Defendant was retried over the course of four days in September 2008. The jury convicted defendant of second-degree robbery; he was acquitted of second-degree burglary but convicted of the lesser-included offense of third-degree burglary. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant was sentenced to a six-year prison term subject to an 85% period of parole ineligibility on the robbery conviction and a concurrent four-year prison term on the burglary conviction.
In appealing, defendant argues:
I. THE TRIAL COURT ERRED IN FAILING TO CAUTION THE JURY CONCERNING POLICE POSSESSION OF MR. HARRIS'S PHOTO, WHICH WAS COMPOUNDED BY THE PROSECUTOR'S QUESTIONS TO POLICE DETECTIVE AS TO WHETHER HE KNEW MR. HARRIS PRIOR TO THE INCIDENT, SUGGESTING THAT MR. HARRIS HAD A CRIMINAL HISTORY. THIS ERROR DENIED MR. HARRIS DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const., Amends. VI and XIV; N.J. Const. Art. I, pars. 1, 10. (Not Raised Below).
II. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING MR. HARRIS'S CONVICTIONS COULD BE USED TO IMPEACH HIM.
III. MR. HARRIS WAS DENIED DUE PROCESS WHEN DEFENSE COUNSEL WAS PROHIBITED FROM QUESTIONING A WITNESS WITH REGARD TO MR. HARRIS'S WAIVER OF HIS MIRANDA[*fn1 ] RIGHTS, WHERE NO STATEMENT WAS INTRODUCED INTO EVIDENCE.
IV. THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. HARRIS UNLAWFULLY ENTERED THE DAVIES HOME WITH THE INTENT TO COMMIT A ROBBERY AND THE GUILTY VERDICT ON THOSE CHARGES WAS AGAINST THE ...