December 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT D. BROWN, DEFENDANT-APPELLANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010 - Decided Before Judges Kestin and Newman.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-0120.
Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Pubic Defender, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Defendant, Robert D. Brown, appeals from a judgment of conviction and the sentence imposed. The conviction reflected the verdict after a jury trial on charges of first-degree robbery, N.J.S.A. 2C:15-1a(2); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The jury found defendant guilty of all these charges. A fourth charge, possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b, a crime of the second degree, had been dismissed.
The trial court denied the State's motion for an extended-term sentence on the basis that it could "fashion an appropriate sentence given the circumstances of this case within the first-degree sentencing range." On the first-degree conviction, the trial court imposed a sentence of imprisonment for nineteen years with eighty-five percent parole ineligibility. Concurrent terms of imprisonment for eight years and four years were assigned on the second- and third-degree convictions, respectively.
In counsel's brief on appeal, defendant raises the following issues for our consideration:
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS IRREPARABLY PREJUDICED WHEN THE COURT DENIED HIS MOTION FOR A MISTRIAL AFTER THE JURY HAD BEEN EXPOSED TO HIS ANGRY OUTBURST IN THE COURTROOM.
THE COURT ERRED IN FAILING TO MERGE THE SENTENCE ON COUNT ONE INTO THAT ON COUNT TWO. (Not raised below.) [sic]
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
In a pro se supplemental brief, defendant argues:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF SPEEDY TRIAL BY 21 MONTHS OF OPPRESSIVE, PRETRIAL CONFINEMENT, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS, WHEREFORE THE CONVICTION SHOULD BE SET ASIDE AND THE INDICTMENT DISMISSED.
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHEREFORE THE CONVICTION SHOULD BE REVERSED (Not Raised Below).
THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL AWARDED.
THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A CORRECTED JUDGMENT OF CONVICTION.
The charges emanated from an incident in which defendant, according to the victim, asked him to step away from a group of other people. Defendant, while brandishing a firearm, then threatened the victim with harm unless he turned over the cash he was carrying. The victim relinquished $230 in cash. Moments later, he reported the incident to the police and thereafter identified defendant from a photo array.
According to the victim, he knew defendant from when both of them had attended the same middle school some years before. At first, on the day of the incident, he did not remember defendant's name, but after hearing someone in the group address defendant as "Bobby," he remembered that defendant had been known as Bobby Brown. The victim conceded on cross-examination that, in reporting the matter to the police in an affidavit of probable cause, he had not initially mentioned defendant's name and, when asked who the robber was, he had answered that he was "not sure" and that he "couldn't place him" at the time. He explained his confusion as stemming from his former acquaintance with defendant as Bobby Brown, while the police were referring to him as Robert Brown.
Defendant's pro se weight-of-the-evidence argument is based essentially on the victim's confusion regarding defendant's name, and other factors bearing on the victim's recollection. Defendant elected not to testify at trial. Trial counsel's summation to the jury focused on the flaws in the victim's recollection, as well as other evidence bearing upon credibility and the strength of the State's case. There was no motion before the trial court concerning the weight of the evidence.
Our review of the record discloses that the proof issues were fully framed for the jury, and that the verdict was well supported by evidence in the record. Therefore, whether we apply the plain error standard or any less demanding standard of review, there has been no manifest denial of justice. See State v. Sims, 65 N.J. 359, 373-74 (1974); see also Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 596-601 (1977); Dolson v. Anastasia, 55 N.J. 2 (1969); State v. Marks, 201 N.J. Super. 514, 537 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986).
We also discern no merit, worthy of extended discussion in a written opinion, in two other issues raised in defendant's pro se supplemental brief. R. 2:11-3(e)(2). We address them briefly.
An argument that prosecutorial misconduct occurred was also not presented to the trial court, and is, therefore, to be measured on appeal by plain error standards. R. 2:10-2. The assistant prosecutor's references in his opening statement to the jury that it would hear "two stories" and that "[t]he State's version of events [was] the only credible version," were unfulfilled promises in the sense that the only testimony in the case was presented by the State's witnesses. Nevertheless, the vigorous cross-examination by defense counsel of the State's witnesses suggested a version of events that was different from that proposed by the State. We discern no merit in defendant's argument that the references in the assistant prosecutor's opening and his focus on witness credibility in his closing statement amounted to prosecutorial misconduct that denied defendant a fair trial, see State v. Loftin, 287 N.J. Super. 76, 110-11 (App. Div.), certif. denied, 144 N.J. 175 (1996), by "substantially prejudic[ing] defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). Nor, in a related vein, do we regard the prosecutor's argument regarding the credibility of the victim-witness, as having crossed the line from permissible advocacy to "vouching," i.e., expressing his personal opinion that he believed the victim. See State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997).
In the absence of early efforts on defendant's behalf to accelerate the trial in the matter, we do not discern error in the trial court's ruling denying defendant's motion to dismiss the indictment on Sixth Amendment speedy trial grounds. See generally Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (defendant's failure to make a timely assertion of his right to a speedy trial is one factor in a Sixth Amendment analysis). The motion was filed six weeks before the actual trial. The trial occurred some twenty-one months after the indictment had been filed, the passage of time, according to the judge, having been attributable to the trial court's schedule. Defendant does not argue that, because of the delay, he suffered any specific trial-related prejudice, such as the unavailability of witnesses.
Counsel's brief on appeal, likewise, raises two grounds that lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We address them briefly, as well.
After the prosecutor completed his summation, the court announced a twenty-minute recess. The verbatim record reveals the following at that point in the presence of the jury:
MR. BROWN [defendant]: Your honor, I think the prosecutor
THE COURT: Sir, sir, sir.
MR. BROWN: -- I think he's a racist.
THE COURT: Sir, sir, sit down.
MR. BROWN: Well, listen, he told you THE COURT: No, no. You sit. You sit. Sit.
MR. BROWN: -- if don't take the stand -- [sic]
THE COURT: Sit down.
MR. BROWN: -- because that you said --THE COURT: Sit down.
MR. BROWN -- they'll find me guilty. THE COURT: Sit down. Sit down.
MR. BROWN: Oh, man. He told me don't take the stand.
VOICE: Sit down.
THE COURT: I'm going to ask the jury to retire to the jury room, please. Retire to the jury room, please.
(Jury leaving the courtroom)
MR. BROWN: I have took the fucking stand THE COURT: Please MR. BROWN: -- if he told me that.
THE COURT: -- retire to the jury room.
A colloquy then ensued between defendant, his trial counsel, and the court concerning how defendant had been advised by counsel and dealt with by the court relative to whether or not he would testify at trial.
The only issue raised on appeal springing from this episode is whether the court was correct to have denied counsel's subsequent motion for a mistrial. The court articulated two bases for the denial: that defendant should not benefit from his own misconduct, and that the court's curative instruction to the jury when it returned from the recess was effective to preclude any prejudice to defendant's position at trial. That instruction was:
Thank you, ladies and gentlemen, for your indulgence. You are not to consider in any way when it comes to reaching the verdict in this case what happened that precipitated me sending you back in the jury room. That's not relevant for purposes of determining whether Mr. Brown is guilty or innocent. You are also instructed to disregard anything that was said by Mr. Brown subsequent to summations given in this case. Again, what was said by Mr. Brown is not to enter into your deliberations in this case. Your deliberations will be based upon the instructions that I will now give you in this case.
We discern no misapplication of discretion in the trial judge's disposition of the motion for a mistrial; we are in substantial agreement with his stated reasons for ruling as he did. See State v. LaBrutto, 114 N.J. 187, 207 (1989); State v. Winter, 96 N.J. 640, 646-48 (1984).
As for the remaining point advanced by counsel on defendant's behalf that we reject, we discern no merit in the argument that the sentence imposed was excessive. R. 2:11-3(e)(2). The term provided is in the range of first-degree crimes, and the nineteen-year length reflects no discretionary lapse by the trial court in applying the various factors to be considered.
Finally, as to Point II in counsel's brief and Point IV in defendant's pro se supplemental brief, the State concedes in respect of both that a remand for corrective action is necessary.
The conviction for possession of a weapon for unlawful purpose should have merged into the robbery conviction because there was no evidence that the weapon had been possessed for any purpose other than the robbery; therefore, those two crimes should not have drawn separate sentences. When the judgment is amended to provide for two sentences rather than three by reason of the necessary merger, the existing clauses providing for concurrent sentences, which are currently incorrect in their referents for concurrency, must be corrected to specify the correct referents as well as eliminating one of the separate sentences.
The matter also requires a remand to correct various textual errors in the judgment of conviction. The provision noting that the "adjudication [was] by guilty plea" needs to be corrected to reflect that the matter was resolved via a jury trial. In this connection, the provisions typically found in judgments of conviction resulting from plea agreements and guilty pleas must be eliminated, i.e., the clause noting defendant's waiver of his right to appeal, and the concluding entry on the second page of the form of judgment: "This was a negotiated plea between the prosecutor and the defendant. It appears fair and in the interest of justice, the court is imposing the recommended sentence."
To the extent defendant is entitled to jail or gap-time credits against his sentence, the judgment should provide for them. In his pro se supplemental brief, defendant asserts that the judgment of conviction is deficient because such credits are not specified. Since the matter is to be remanded for textual modification of the judgment of conviction, however, defendant should have a fair opportunity to establish any such entitlement.
The convictions and the sentence for the first-degree crime are affirmed. The matter is remanded for modification of the sentencing provisions for the limited purpose of reflecting a necessary merger of two of the convictions and for the correction of textual errors or omissions in the judgment of conviction.
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