January 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN W. BIDDLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010
Before Judges Parrillo, Yannotti and Skillman.
Appellant filed a pro se supplemental brief.
A jury found defendant guilty of two counts of carjacking, in violation of N.J.S.A. 2C:15-2(a)(4); one count of carjacking, in violation of N.J.S.A. 2C:15-2(a)(2); first-degree robbery, in violation of N.J.S.A. 2C:15-1; second-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d); and possession of heroin, in violation of N.J.S.A. 2C:35-10(a)(1). The trial court sentenced defendant to extended terms of life imprisonment without eligibility for parole under N.J.S.A. 2C:43-7.1(a), sometimes referred to as the Three Strikes Law, see State v. Parks, 192 N.J. 483, 484 (2007), for each of the carjackings; a twenty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the robbery; a ten-year term of imprisonment, with five years of parole ineligibility, for the kidnapping; a five-year term of imprisonment, with two-and-a-half years of parole ineligibility, for possession of a weapon for an unlawful purpose; and a five-year term of imprisonment, with two-and-a-half years of parole ineligibility, for the drug offense. The court merged defendant's conviction for unlawful possession of a weapon into his conviction for possession of a weapon for an unlawful purpose.
The crimes for which the jury convicted defendant were committed in the late afternoon and early evening on October 30, 2006. The victim, N.A., was caring for her two-year-old sister, M.D., while working alone at her family's business in Atlantic City. Upon leaving the store at 5:30 p.m., N.A. placed M.D. in the backseat of her car. N.A. then returned to the store to lock the front door. As she arrived back at her car, she saw a man, later identified as defendant, walking next to the car.
N.A. asked defendant if she could help him. In response, defendant brandished a silver-bladed knife and told N.A. to give him her bag "and he wouldn't have to spill [her blood]."
After N.A. gave defendant her bag, he entered the backseat of the car next to M.D. Defendant then climbed into the front seat and ordered N.A. to drive to Pleasantville, giving her directions to a housing development where defendant ordered N.A. to stop her car and turn off the engine. There, with a knife still in his hand, defendant ordered N.A. to take off her clothing. "[I]n tears and scared and shaking," N.A. took off her clothing while defendant repeatedly stabbed the front console of the car with his knife. Defendant then asked N.A. what she thought he should do with her. In tears, N.A., in an attempt to convince defendant to let her go, lied to defendant that she had been raped at age fourteen and now had AIDS.
Defendant told N.A. to put her clothes back on, but, in a rush to do so, she neglected to put on her underpants, leaving them behind in her car.
After N.A. redressed, defendant told her to start the car and return to Atlantic City. N.A. drove to an apartment building parking lot in Atlantic City, where defendant ordered the victims out of the car. Defendant then drove away with N.A.'s car.
N.A. encountered a pedestrian, who helped her to a store, where she called 9-1-1. When Atlantic City Police Officer Andrew Leonard responded to this 9-1-1 call at approximately 6:30 p.m., he was met by the victim, N.A., who told him she had been carjacked and kidnapped. N.A. described her assailant as a "black male, approximately twenty-five to thirty years old," who was wearing a black-hooded sweatshirt. N.A. also informed Leonard that her assailant had stolen her silver Toyota Matrix, and she gave Leonard her license plate number. Officer Leonard broadcasted the description of the suspect and N.A.'s car over the police radio.
At approximately 7:05 p.m., Atlantic City Police Officer Salvatore Rando observed a black male with a dark-hooded sweatshirt carrying a woman's handbag and exiting a silver Toyota Matrix that matched N.A.'s description of her car, including the license plate number. Rando approached defendant with his canine and ordered him to the ground. Defendant complied and placed the handbag on the ground next to him. After securing defendant, Officer Rando placed the woman's handbag on his patrol car, at which point he noticed a wallet and jewelry through an open-flap of the handbag. In a search incident to defendant's arrest, Officer Rando recovered a silver folding knife from his right pant's pocket and a pair of gray woman's underpants from his waistband. Defendant was then transported to police headquarters.
N.A. was brought to police headquarters and asked if she would be willing to look at someone who may have been involved in the crime. After viewing defendant through the two-way mirror, N.A. identified him as the one who had carjacked and kidnapped her, stating, "that's him, that's the guy that did this." N.A. then identified the purse, wallet, jewelry and underpants recovered from defendant as belonging to her.
After N.A. identified defendant as her assailant and the items of property recovered from him at the time of his arrest as her belongings, two police officers administered Miranda*fn1 warnings to defendant, and after he agreed to speak with the officers and was confronted with some of the evidence against him, such as N.A.'s underpants, defendant gave a statement, which was the same in most respects as N.A.'s account of the crime. Defendant admitted that he threatened N.A., forced her into her car, and told her to drive to Pleasantville. He also admitted that he forced N.A. to undress but claimed it was only to ensure that she was unarmed.
At trial, defendant did not testify and called no witnesses on his behalf.
On appeal, the Public Defender has submitted a brief on defendant's behalf which presents the following arguments:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION, WHICH WAS OBTAINED IN A PROCEDURE AKIN TO A "SHOW-UP", IN VIOLATION OF THE ATTORNEY GENERAL'S GUIDELINES AND THE DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (U.S. CONST., AMENDS. VI; XIV; N.J. CONST., [(1947)], ART. I, Par. 10.
THE TRIAL COURT'S FAILURE TO SUA SPONTE PROVIDE THE JURY WITH A CROSS-RACIAL IDENTIFICATION INSTRUCTION CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF HIS CONVICTIONS. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. 1, Pars. 1, 9 AND 10.
BY FAILING TO INSTRUCT THE JURY ON THE OFFENSE OF RECEIPT OF STOLEN PROPERTY IN ACCORDANCE WITH TESTIMONY THAT DEFENDANT INITIALLY TOLD POLICE THAT A DRUG DEALER HAD GIVEN HIM THE CAR, THE COURT SIGNALED TO THE JURY THAT DEFENDANT'S STATEMENT WAS NOT WORTHY OF BELIEF, THUS DENYING DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. ACCORDINGLY, ALL OF DEFENDANT'S CONVICTIONS EXCEPT UNLAWFUL POSSESSION OF A WEAPON AND POSSESSION OF HEROIN SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL ON THE VACATED CONVICTIONS. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, Pars. 1, 9 AND 10.
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT.
THE STATE INTRODUCED THE LAB REPORT ON THE CDS EVIDENCE SEIZED FROM DEFENDANT BUT DID NOT CALL THE ANALYST WHO TESTED THE EVIDENCE AND PRODUCED THE REPORT. DEFENDANT'S CONVICTION OF POSSESSION OF HEROIN MUST BE VACATED AND REMANDED FOR A NEW TRIAL.
THE CONVICTION FOR POSSESSION OF A KNIFE FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH EITHER THE ROBBERY OR CARJACKING CONVICTIONS.
In addition, defendant has submitted a supplemental pro se brief.
Except for defendant's argument, presented under Point VI of the Public Defender's brief, that his conviction for possession of a weapon for an unlawful purpose should have been merged into either the robbery or carjacking convictions, defendant's arguments are clearly without merit. R. 2:11-3(e)(2). However, we briefly comment upon the arguments defendant presents under Points I, III and IV of the Public Defender's brief.
Defendant argues under Point I that N.A.'s identification of him as her assailant was "impermissibly suggestive." Identification evidence is deemed inadmissible if it is "'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Neil v. Biggers, 409 U.S. 188, 197, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401, 410 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The determination whether evidence is inadmissible under this test involves a "two-step analysis." State v. Romero, 191 N.J. 59, 76 (2007). "First, a reviewing court must 'ascertain whether the identification procedure was impermissibly suggestive.'" Ibid. (quoting State v. Herrera, 187 N.J. 493, 503 (2006)). Second, even if the identification procedures were impermissibly suggestive, "a court must determine 'whether the impermissibly suggestive procedure was nevertheless reliable' by considering the 'totality of the circumstances' and 'weighing the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Herrera, supra, 187 N.J. at 503-04). In making these determinations, "the trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)).
Under this two-step analysis, the trial court concluded in an oral opinion delivered on April 25, 2008 that the police identification procedure which resulted in N.A.'s identification of defendant was not impermissibly suggestive and, in any event, there was not a very substantial likelihood of irreparable misidentification. We affirm the denial of defendant's motion to suppress evidence of N.A.'s identification of him as her assailant for substantially the reasons stated by the trial court. We add that this identification was strongly corroborated by the fact that defendant was apprehended less than an hour after the crime in possession of N.A.'s car and other personal belongings and that he gave a confession to the police that was substantially similar to N.A.'s account of the crime.
Defendant argues under Point III of the Public Defender's brief that the trial court erred in failing to submit the offense of receipt of stolen property to the jury as a "lesser included" offense of the carjackings and robbery charged in the indictment. Defendant did not request such an instruction.
Receipt of stolen property is not a lesser included offense of carjacking, robbery or any of the other offenses with which defendant was charged. It was at most a "related offense" to the offenses with which defendant was charged. "[T]he trial court has no sua sponte obligation to charge the jury on a related offense that is not requested or consented to by the defense." State v. Thomas, 187 N.J. 119, 134 (2006). Even if receipt of stolen property were a lesser included offense of one or more of the offenses with which defendant was charged, the trial court would have been required to submit this instruction to the jury only if it was "clearly indicated" by the evidence presented at trial. State v. Choice, 98 N.J. 295, 299 (1985). The only evidence that could possibly have supported this instruction was defendant's initial statement to the police that a drug dealer had given him N.A.'s car after he had purchased drugs from him. However, defendant retracted that initial statement after the police confronted him with the strong evidence against him, which included the fact that he was carrying N.A.'s handbag, had her underpants in his waistband when he was apprehended, and gave a confession that closely mirrored N.A.'s account of the crime. Therefore the appropriateness of submitting the offense of receipt of stolen property was not clearly indicated by the evidence.
Defendant argues under Point IV of the Public Defender's brief that the trial court's instruction to the jury of defendant's election not to testify suggested that he had an obligation to testify and thereby violated his constitutional right to remain silent. This instruction stated:
As you know, [defendant] elected not to testify during his trial. It is his Constitutional right to remain silent. You must not consider, for any purpose or in any manner in arriving [at] your verdict, the fact that he chose not to testify. That fact should not enter into your deliberations or discussions in any manner at any time. He is entitled to have the jury consider all evidence presented at trial. He is presumed innocent, even if he chooses not to testify. [Emphasis added.]
This instruction followed the Model Jury Charge on "Defendant's Election Not to Testify" then in use. Model Jury Charges (Criminal), Defendant's Election Not to Testify (June 2004). The word "even" in the last sentence of this model instruction was subsequently replaced by "whether or not." Model Jury Charges (Criminal), Defendant's Election Not to Testify (May 2009). Although this revised model instruction represents an improvement upon the prior model instruction, there is no basis for concluding that the prior instruction violated a defendant's right to remain silent. That prior instruction "clearly directed [the jurors] that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time." State v. Miller, 411 N.J. Super. 521, 533 (App. Div.), certif. granted, 202 N.J. 44 (2010).
Finally, we agree with defendant's argument that his conviction for possession of a weapon for an unlawful purpose should have been merged into his convictions for carjacking and robbery. The only alleged unlawful purpose that the trial court identified in instructing the jury regarding the charge of possession of a weapon for an unlawful purpose was "to commit robbery and/or carjacking." Under State v. Diaz, 144 N.J. 628, 639 (1996), this requires the merger of defendant's conviction for possession of a weapon for an unlawful purpose.
In addition, the trial court imposed an illegal sentence upon defendant for kidnapping because this sentence did not include the 85% period of parole ineligibility mandated by NERA. See N.J.S.A. 2C:43-7.2(d)(6). Therefore, the judgment of conviction must be amended to reflect that mandated period of parole ineligibility. See State v. Baker, 270 N.J. Super. 55, 71-77 (App. Div.), aff'd o.b., 138 N.J. 89 (1994). Furthermore, the judgment of conviction does not reflect the NERA parole ineligibility term the court imposed for the robbery. See State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) (holding that the sentencing transcript controls when it is inconsistent with the judgment of conviction). Finally, the third page of the judgment of conviction repeats the sentences imposed upon defendant in a manner that is inconsistent in various respects with both the sentencing transcripts and the first page of the judgment of conviction, which must be corrected.
Accordingly, we remand the case for entry of an amended judgment of conviction under which defendant's conviction for possession of a weapon for an unlawful purpose is merged into his convictions for carjacking and robbery, and the judgment is amended to reflect the mandated NERA parole ineligibility term for the kidnapping and to conform in all other respects with the sentencing transcript, including the mandated NERA parole ineligibility term for the robbery. The judgment is affirmed in all other respects.