February 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL TRAVIS WALLACE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0505.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided
Before Judges Baxter and Koblitz.
Defendant Michael Travis Wallace was charged as the getaway driver in an armed robbery, in Union County Indictment No. 06-06-0505, with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)*fn1 (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); fourth-degree aggravated assault by pointing a gun at the robbery victim, N.J.S.A. 2C:12-1(b)(4) (count five); and possession of a prohibited device, hollow-nosed bullets, N.J.S.A. 2C:39-3(f) (count six). Prior to trial, the State dismissed count four. Defendant's co-defendant, the individual who confronted the victim on the street, pled guilty and testified against defendant at trial. Defendant was convicted only of the lesser-included charge of second-degree robbery. He was acquitted on the remaining counts of the indictment.*fn2
Defendant was sentenced to seven years imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The required fees were assessed, and defendant was required to furnish a DNA sample. Defendant argues on appeal that, given the weaknesses in his co-defendant's testimony, the court should have granted his motion for a judgment of acquittal at the end of the State's case and that his sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The undisputed facts are as follows. At 10:00 p.m. on April 12, 2006, the victim and his stepson returned from grocery shopping and began unloading their purchases from their car. The victim noticed a black four-door car pull up in the street. A male, later identified as co-defendant Kordel Thom, pulled a handgun on the victim, who gave the robber a wallet, credit card and cell phone. Thom grabbed the chain from the victim's neck, and when the victim grabbed Thom's gun, Thom pushed the victim to the ground. Thom opened the black car door and the victim heard the driver say, "come on - let's go," before the car sped off.
About thirteen minutes later, after the police arrived, the victim noticed the same black car pull around the corner and park at the end of the block. The black car backed up with its lights off and drove away with the police officers following. When the car was stopped, the police found defendant driving, Thom in the passenger seat and the victim's wallet and cell phone in the back seat. A .45 caliber handgun loaded with hollow point bullets protruded from underneath the front passenger seat. The victim and his stepson identified Thom as the robber and the black car as the get-away vehicle.
Thom testified at trial that he was addicted to crack and used crack four or six times every day for almost four years. He said on the night in question he used both crack and marijuana before meeting up with defendant. Although he remembered very little about his interaction with police that night, he said he lied to police when he was arrested. He did claim to remember that he committed the robbery with defendant, who was a friend from high school, and a third individual. He said they dropped off the third individual down the street from the robbery, which is why they returned to the scene so soon after the robbery. He testified that the robbery was the idea of the other two and that defendant furnished the gun. On cross-examination, he admitted giving different versions of the events at different times and that his memory was poor due to drug usage.
When arrested, Thom suggested to the police that he would cooperate if they "could do something for" him. He pled guilty prior to his testimony. Although originally offered a maximum sentence of thirteen years subject to NERA, after agreeing to testify against defendant, he was offered a maximum of ten years subject to NERA.
On appeal, defendant raises the following issues:
THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED.
THE SENTENCE WAS EXCESSIVE.
Defendant argues that the court should have granted his motion for judgment of acquittal. In reviewing a trial court's decision to deny a motion for judgment of acquittal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). The State's evidence should be viewed in its entirety and given "'the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony . . . ." State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)); see also State v. Reyes, 50 N.J. 454, 458-59 (1967).
Defendant argues that absent Thom's incredible testimony the jury had insufficient evidence to convict him. The court found that independent of Thom's testimony, the State had produced evidence that the car involved in the robbery, driven by defendant, was parked a short distance away soon after the robbery. The car backed up with its lights off at night, indicating the driver sought not to be noticed. When the car was stopped by the police, the proceeds of the robbery and the gun were in the car. The court characterized this as circumstantial evidence.
The court noted that Thom provided direct evidence that defendant participated in the robbery, furnishing the idea, the gun and the ride to and from the robbery. Judging the credibility of a witness lies within the sole province of the jury. State v. Bradshaw, 195 N.J. 493, 509-10 (2008); State v. Sims, 65 N.J. 359, 373-74 (1974). The jury could well have found Thom's testimony incredible due to his faulty memory, drug addiction, prior inconsistent statements and more lenient plea agreement. Indeed, the jury may well have rejected Thom's testimony as it acquitted defendant of the most serious charge as well as the gun charges. The State's case, however, did not rely solely on Thom's testimony. The court properly denied defendant's motion at the end of the State's case based on the strength of the State's evidence, giving the State all favorable inferences.
Defendant also argues that his sentence was excessive. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
The trial court found aggravating factors three, "the risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3), six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6) and nine, the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). In mitigation the court was "mindful that [defendant] has spent two tours in Iraq . . ." and therefore did not increase the sentence past the midpoint of seven years.
Defendant argues that he did not have a serious prior record in that he had only two prior disorderly persons offenses and a theft conviction. The theft offense occurred after this robbery, although the conviction occurred prior to the sentencing for the robbery.
Defendant argues that his role in the crime was non-violent, and the court should have found mitigating factors one (his conduct did not cause serious harm) and two (he did not contemplate serious harm). The court, however, appropriately focused on the violent nature of the robbery in which a gun was used and the victim pushed to the ground. The sentence is reasonable and does not "shock the judicial conscience" under all of the circumstances. Roth, supra, 95 N.J. at 365.