April 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IVAN WYNN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0281.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011
Before Judges Wefing, Payne and Koblitz.
A jury convicted defendant of three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and one count of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b. In light of his prior criminal history, defendant was subject to a mandatory extended-term sentence.
N.J.S.A. 2C:43-7.1b. The trial court sentenced defendant to an aggregate term of forty-two years in prison. The initial thirty-five years of that term are subject to the parole ineligibility provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Defendant must serve a consecutive seven years, with a five-year period of parole ineligibility for the conviction for possession of a weapon by a convicted person. Defendant has appealed his convictions and sentence. After reviewing the record in light of his contentions on appeal, we affirm.
Defendant's convictions flow from an incident that occurred on the afternoon of December 22, 2003, in Hamilton Township. Christopher Ennis, his wife and their two young children were shopping at a video game store; there was only one employee in attendance, Scott Barber. Barber and the Ennis family were the only people in the store when suddenly two African-American males entered the store and came to the counter. One, tall, thin and wearing sunglasses, was later identified as defendant. He pointed a gun at Barber and demanded Barber turn over all the money in the store. There were two cash registers in the store, and Barber opened the first and handed all of the money to defendant, who was dissatisfied with the amount, asking where were the hundred dollar bills. Barber opened the second register and showed defendant that it was empty. Defendant asked if the store had a safe and Barber answered it did not.
The second man, shorter and stockier and wearing a black ski mask and a black jacket, was later identified as Divine Allah. Allah approached Barber with a duffel bag and told him to fill it with video games. Barber complied, stuffing more than one hundred games into the bag.
Defendant then turned to Ennis, pointed the gun at him and told him to empty his pockets. Ennis handed over his gold money clip which held approximately $70. Defendant then focused on Ennis's wife, pointing the gun at her and telling her to empty her purse. When she could not immediately locate her wallet, he told her to "forget it."
Defendant then told his companion to take anything else in the store he wanted and Allah took more video games and consoles. Defendant ordered Barber and the Ennis family into the back room and told them to get down on the floor. They did so, and defendant left, closing the door after himself. When Barber heard the two men leaving the store, he got up and called 9-1-1. The police arrived in a few minutes.
By happenstance, an off-duty police officer was shopping at the complex where the video game store was located. As he came out of a store, he noticed a red car speeding across the parking lot. It pulled up in front of another store, and two African-American men came running from around the corner, their arms laden, and jumped into the red car. The officer heard one man, later identified as defendant, yelling at the driver to take off. It sped off, and the officer jumped into his own truck and pursued the red car; he also called for backup. He was joined in the pursuit by two officers in a police car. The red car was eventually forced to a stop. The officers approached the red car with their weapons drawn and ordered the three occupants out. A search of defendant turned up a substantial quantity of cash, including Ennis's gold money clip holding $72. A search of the red car led to the discovery of a small loaded handgun, a quantity of video games and video game consoles. In the rear seat the police found a pair of sunglasses, a black jacket and a black ski mask.
The trial at which defendant was convicted took place in March 2008. Two earlier attempts to try defendant were aborted because of his behavior. That behavior led to defendant undergoing two psychological evaluations and a competency evaluation, all conducted before defendant's first trial. The findings were that defendant was competent to stand trial and did not suffer from any mental disease or defect.
The judge first attempted to hold a trial in February 2008. Before that trial got underway defendant's violent outbursts led to the trial judge ordering that defendant be shackled during the trial. In that trial, defendant insisted on wearing prison garb, claiming that "demons" demanded he do so. At one point in that trial, defendant stood up, urinated upon himself and then collapsed on the floor. A mistrial was ultimately declared.
The trial judge attempted to hold a second trial and started jury selection in March 2008. Defendant again insisted on wearing prison garb, and the trial judge continued his instruction that defendant be shackled. During jury selection defendant erupted in an obscene outburst, cursing at the trial judge and his attorney. It took four officers to physically remove defendant from the court room. In the hallway, he continued his outburst, screaming at prospective jurors who were in the hall. Jury selection could not continue, and the trial judge dismissed the prospective jurors.
The trial judge's third attempt to try the matter to a conclusion was in May 2008. The trial judge, however, held that defendant, as a result of his disruptive and violent behavior, had waived his right to be present in the court room during his trial. The trial judge arranged for defendant to see and hear the trial through a closed-circuit television link. Those in the court room, however, would not be able to see defendant except during his testimony, lest defendant again try to disrupt the proceedings. Defendant did not have the ability to communicate at will with his attorney, but the trial judge arranged proceedings so that the two could communicate and consult at various points. He also directed that the two could consult at any point defense counsel requested it. Defendant's attorney agreed to this arrangement and placed the following statement on the record:
[I]t is my intention to make sure that at least at the end of the morning session and at the end of the afternoon session each day that I will contact Mr. Wynn by telephone.
Based on my past experience of trying this case with him, I am fairly confident that will be more than enough opportunity for him to communicate anything he wants to communicate.
Defendant elected to testify. His responses, however, were rambling and non-responsive, as the following excerpts illustrate. Asked his age, defendant responded, "I was born 20,000 years ago, but Ivan, he is in his forties, I think." Asked if he had committed these robberies, he replied, "I was so high off angel dust, I don't know." Asked if he had a gun that day, he answered, "Only angels would have swords. I only have a sword at all times." He called the prosecutor a "demon" and the jurors "angels." Because defendant was not answering the questions posed, the trial judge terminated his cross-examination and instructed the jury it should disregard defendant's testimony because it was "99 percent unresponsive." He told the jury the following:
[B]ased upon results of prior proceedings in this court, in this case, I decided that Mr.
Wynn waived his right to appear in the courtroom and to be here next to his attorney, where normally we have defendants.
He did not, however, waive his right to testify. I attempted to give him that opportunity.
He has continued behavior similar to what happened in prior proceedings that resulted in his exclusion by waiver by conduct, that is all I can tell you.
The transcript indicates that the jury retired to commence its deliberations at 3:15 p.m. It returned at 4:10 p.m., finding defendant guilty on all counts.
Defendant raises the following contentions for our consideration:
POINT I DEFENDANT WAS DENIED HIS RIGHT UNDER THE FEDERAL AND STATE CONSTITUTIONS TO BE PRESENT AT CRITICAL STAGES OF THE TRIAL POINT II THE COURT ERRONEOUSLY PERMITTED THE STATE TO INTRODUCE EVIDENCE OF DEFENDANT'S PRIOR CRIMINAL CONVICTIONS (Not raised below)
POINT III THE COURT ERRONEOUSLY ADVISED THE JURY OF DEFENDANT'S DISRUPTIVE BEHAVIOR IN THE COURTROOM IN THE FIRST TRIAL (Not raised below)
POINT IV THE PROSECUTOR ADDUCED IRRELEVANT HIGHLY PREJUDICIAL EVIDENCE REGARDING THE FEAR OF THE THREE VICTIMS IN THIS CASE WHICH TENDED TO INFLAME THE PASSIONS OF THE JURY AGAINST HIM (Not raised below)
POINT V DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL POINT VI DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
A criminal defendant's right to be present at trial is protected by the confrontation and due process clauses of the United States Constitution and by the New Jersey Constitution. State v. Dellisanti, 203 N.J. 444, 453 (2010); see also U.S. Const. amend. V; U.S. Const. amend. VI; N.J. Const. art. I, ¶
10. The combination of these constitutional protections "provide a defendant with the right to be present at every stage of trial 'whenever . . . presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Dellisanti, supra, 203 N.J. at 453 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 674, 678 (1934)). The New Jersey Supreme Court has held that the right to be present provides protections on both an individual and institutional level:
It affords a defendant the ability to communicate with counsel during trial, assist in presentation of a defense, and in the process of cross-examination. It includes the independent right of a defendant to represent himself or herself at all stages of a criminal proceeding, if he or she elects to do so. Institutionally, the defendant's right to be present at trial ensures public confidence in the courts as instruments of justice. [State v. Hudson, 119 N.J. 165, 172 (1990) (citations omitted) (upholding defendant's conviction after a trial in absentia, finding he voluntarily elected not to appear).]
However, "[t]he right to be present at trial is not absolute." State v. Luna, 193 N.J. 202, 210 (2007). "Otherwise, defendants could halt trials simply by absenting themselves" or by causing endless disruptions to avoid being tried. Ibid. (citation omitted); see also Illinois v. Allen, 397 U.S. 337, 346, 90 S. Ct. 1057, 1062; 25 L. Ed. 2d 353, 360 (1970). As a result, our rules provide that a defendant may explicitly or implicitly waive his right to be present at trial:
The defendant shall be present at every stage of the trial . . . unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.
Here, there is no contention of an explicit waiver. To determine whether there has been an implied waiver under Rule 3:16(b), the question is whether the defendant's conduct reveals a "knowing, voluntary, and unjustified absence."
In Allen, supra, the United States Supreme Court held that, although there is a presumption against finding a loss of constitutional rights, a defendant's disruptive conduct may constitute an implied waiver of the right to be present:
[W]e explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. [397 U.S. at 343, 90 S. Ct. at 1060-61, 25 L. Ed. 2d at 359.]
In so holding, the Supreme Court noted that "[t]he flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated." Id. at 343, 90 S. Ct. at 1061, 25 L. Ed. 2d at 359. When trial judges are faced with "disruptive, contumacious, stubbornly defiant defendants," they must be given "sufficient discretion" to deal with the circumstances of each case. Ibid. Faced with a disruptive defendant, a trial judge has limited options from which to choose. These include:
(1) to bind and gag him, thereby keeping him present; (2) cite him for contempt; and (3) remove him from the courtroom until he promises to conduct himself properly. [State v. Spivey, 122 N.J. Super. 249, 256 (App. Div. 1973), rev'd on other grounds, 65 N.J. 21 (1974) (citing Allen, supra, 397 U.S. at 344, 90 S. Ct. at 1061, 25 L. Ed. 2d at 359).]
In Allen, supra, the conduct of an armed robbery defendant was "so noisy, disorderly, and disruptive that it [would have been] exceedingly difficult or wholly impossible to carry on the trial" with him present. 397 U.S. at 338, 90 S. Ct. at 1058, 25 L. Ed. 2d at 356. In particular, he interrupted voir dire proceedings and "started to argue with the judge in a most abusive and disrespectful manner." Id. at 339, 90 S. Ct. at 1059, 25 L. Ed. 2d at 357. He threatened the trial judge, saying "When I go out for lunchtime, you're going to be a corpse here" and then tore his attorney's files and threw them on the ground. Id. at 340, 90 S. Ct. at 1059, 25 L. Ed. 2d at 357. At that point, the trial judge warned the defendant that if he had one more outbreak, he would be removed from the courtroom. Ibid. The defendant, however, continued to talk back to the judge and stated that, no matter what the judge did, he would not stop and "there's not going to be no trial." Ibid. Thus, the defendant was removed from the courtroom and voir dire proceeded in his absence. Ibid.
Before his trial began, the trial judge gave the defendant another chance to be present if he behaved himself. Ibid. Almost immediately, however, the defendant had another outburst, saying: "There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial." Id. at 341, 90 S. Ct. at 1059, 25 L. Ed. 2d at 357. The defendant was thus removed from the courtroom again. Ibid. After the prosecution's case-in-chief, the trial judge gave the defendant one more chance to return and, upon assurances by the defendant that he would behave, the defendant was permitted to be present through the remainder of the trial. Id. at 341, 90 S. Ct. at 1059-60, 25 L. Ed. 2d at 357-58. The Supreme Court found "nothing unconstitutional about this procedure" under the circumstances and held that the defendant had waived his right to be present at a portion of his trial due to his unruly conduct. Id. at 346, 90 S. Ct. at 1062, 25 L. Ed. 2d at 360.
Likewise, in Spivey, supra, the Appellate Division approved the decision of a trial judge to remove a disruptive defendant from the courtroom under the following circumstances: (1) the defendant's first trial ended in a mistrial due to his disruptive behavior, which included braying, kicking, spitting, singing, moaning, and mouthing obscenities at the trial judge; (2) the defendant began to engage in the same behavior at his second trial; (3) the trial judge attempted to bind and gag the defendant so that he could be present, but the defendant continued to moan, groan, and bang on the table; (4) the trial judge removed the defendant from the courtroom and advised him that he could return if he agreed to behave properly; and (5) when the defendant returned briefly for identification purposes, he continued the same behavior. 122 N.J. Super. at 252, 255-56. Under these facts, the Appellate Division concluded that the trial judge had comported with the guidelines of Allen, supra, in removing the defendant. Id. at 256.
Similarly, in State v. Reddy, 137 N.J. Super. 32 (App. Div. 1975), the Appellate Division approved the decision of a trial judge to remove a defendant who had engaged in a "lengthy diatribe and unruly behavior" in an "effort to disrupt and delay" his trial. 137 N.J. Super. at 36. Since the defendant had received "several warnings" and was told prior to being removed that "he would be allowed to return whenever he was willing to comport himself with courtroom decorum," the Appellate Division determined that the trial judge acted in accordance with Allen, supra. Ibid.
Defendant argues that his "conduct was not nearly as egregious as that of the defendant in Allen" because he "did not threaten to kill the judge, did not tear up pleadings, and did not repeatedly declare an intention to disrupt the trial." In contrast, defendant claims, his behavior was "relatively innocuous." We disagree.
Here, as we have set forth, the record is replete with instances of defendant's continuous attempts to disrupt and delay his trial as well as his flagrant disrespect for the trial judge and others.
Contrary to defendant's assertions, we consider the facts of Allen, supra, to be very similar to the facts of this case: in both, an armed robbery defendant was noisy, disruptive, disrespectful and threatening to the judge, and had a violent outburst during voir dire. 397 U.S. at 338-40, 90 S. Ct. at 1058-59, 25 L. Ed. 2d at 356-57. In both, the trial judge had warned the defendant that he would be removed if his misconduct persisted and, in both, the defendant continued his disruptive behavior regardless and was thus removed from the courtroom throughout the rest of voir dire and during trial. Ibid. We see no error in the trial judge's determination that defendant had waived his right to be present at trial and in precluding defendant from the courtroom following the final incident during voir dire.
Defendant argues, however, that there is still an important factual difference between this matter and Allen, in which the trial court informed the defendant of his right to return to the trial if he promised to behave appropriately. Indeed, the Allen court had offered the defendant a chance to return to the courtroom before trial (which was unsuccessful) and again after the case-in-chief (which was successful). 397 U.S. at 340-41, 90 S. Ct. at 1059-60, 25 L. Ed. 2d at 357-58. In this case, defendant was not told either before or during trial that he could return if he behaved. The question, therefore, is whether such an advisement was constitutionally required.
The Supreme Court in Allen never explicitly held that the trial court is constitutionally required to inform the defendant that he could reclaim his right to be present if he is willing to behave; rather, the Court held:
Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. [Id. at 343, 90 S. Ct. at 106, 25 L. Ed. 2d at 359.]
The Court simply stated it found "nothing unconstitutional" about the procedure used by the Allen court: warning a disruptive defendant that he would be removed from the courtroom, removing him, and informing him that could return if he agreed to behave. Id. at 345-46, 90 S. Ct. at 1062, 25 L. Ed. 2d at 360. Under the facts of Reddy and Spivey, supra, the trial judge also specifically informed the defendant that he could return to the courtroom if he agreed to behave. While it might be preferable for a trial judge to inform a defendant explicitly of his right to return after he is removed, conditioned upon appropriate behavior, we do not consider the absence of a warning to mandate an automatic reversal. A consideration of the consequence of such an omission requires an examination of the totality of the circumstances.
Here, the trial judge had a much longer history of affording defendant chances to behave before his removal than the defendant in Allen was given and, each time, defendant ignored the court's warnings. For instance, the trial judge invited defendant back to the courtroom after his misconduct at the first trial and informed him that his right to be present would be waived unless he behaved this time. Defendant, however, persisted in the same disruptive and disrespectful behavior; he never exhibited any willingness to behave that was ignored by the trial court. Under these circumstances, it was reasonable for the trial judge to conclude that defendant would not agree to behave even if such an advisement was given.
Further, even if it was error, it was "harmless" error in the context of this matter. The trial judge's failure to tell defendant he could return to the court room if he behaved could not have contributed to the jury's verdict of guilty on all counts. State v. Macon, 57 N.J. 325, 340 (1971). Rather, the jury's guilty verdict was the result of overwhelming evidence against defendant, including the eyewitness testimony of the three robbery victims and the officers who saw him fleeing the scene and caught him red-handed with the stolen cash and goods on his person. "[C]laims of error where a defendant was absent from a stage of trial are examined for prejudice. Specifically [the] decisions have examined whether the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him or to his ability to assist with his own defense." Dellisanti, supra, 203 N.J. at 458-59. From our examination of this record, we are unable to discern such prejudice to defendant.
A further aspect of defendant's argument with respect to his exclusion from the court room is his contention that the trial judge should not have considered his misconduct during his first trial and during voir dire for the second trial as a reason to preclude him from his second trial; rather, he contends that only "behavior within that trial" should have been considered. We reject this position, being satisfied it is not supported by either precedent or logic. A trial judge's discretion with respect to how to handle so disruptive a defendant cannot be so constricted.
Finally, defendant contends that he was tried in absentia and that the State may not argue that the court's use of closed circuit television was the functional equivalent of presence in the courtroom. Here, defendant points out that he was not provided with a contemporaneous two-way audio-link to communicate with his attorney during trial, which is required by N.J.S.A. 2A:84A-32.4 in child abuse prosecutions where the defendant must be excluded from the courtroom.
However, this argument is immaterial in light of our conclusion that the trial judge did not err in holding that defendant waived his right to be present at trial. Where a defendant has waived his right to be present, the trial may then proceed with the defendant in absentia, "as if he were there." State v. Grenci, 197 N.J. 604, 615 (2009) (citation omitted). Thus, it makes no difference whether defendant was "present" at trial or whether he was tried in absentia.
Defendant argues for the first time on appeal that the trial court erred when it admitted into evidence a list of defendant's four prior felony convictions because, he asserts, once his testimony was stricken, it was no longer necessary to impeach his credibility. The admission of the list, defendant contends, was unduly prejudicial and constituted "plain error." We disagree.
When a criminal defendant chooses to testify in his own defense, he takes the risk that evidence of his prior convictions will be admitted for purposes of impeaching his credibility. See N.J.R.E. 609 ("For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes."); State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993). In Sands, supra, the New Jersey Supreme Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." 76 N.J. at 144.
Further, "[o]rdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid. In the end, the "trial judge shall admit evidence of criminal convictions to affect credibility of a criminal defendant unless in his discretion he finds that its probative force because of its remoteness . . . is substantially outweighed so that its admission will create undue prejudice." Id. at 147. In Brunson, supra, the Court added that evidence of prior similar-crime convictions should be "sanitized" by limiting the evidence to the date, degree, and number of such prior convictions while excluding the names of the specific crime of which defendant was convicted. 132 N.J. at 391-92.
In this case, defendant chose to take the stand in his own defense, but he also chose to be non-responsive and non-sensical during questioning, presumably as a tactic to mislead the jury into thinking that he is insane. Accordingly, the trial judge instructed the jurors to disregard his testimony as non-responsive. On the next day of trial, the trial judge took judicial notice of and admitted a "sanitized" list of defendant's four similar prior felony convictions - which included only the date of the offense, the indictment number, the degree, and the sentence - into evidence for impeachment purposes. Defense counsel interposed no objection. The trial judge then instructed the jury that they were to use the evidence of defendant's prior convictions only for the purpose of determining his credibility, and not as an indication that he was more likely to have committed the present crimes.
On appeal, defendant points to State v. Farquharson, 321 N.J. Super. 117, 121 (App. Div.), certif. denied, 162 N.J. 129 (1999), for the proposition that "it is 'self-evident' that a conviction cannot be admitted where there is no testimony that it impeaches." In Farquharson, supra, the Appellate Division concluded that portions of a criminal defendant's testimony referring to his prior convictions could not be admitted for impeachment purposes at the defendant's second trial because defendant had chosen not to take the stand. 321 N.J. Super. at 121. In so holding, the court stated that "the operative factor" in whether prior conviction evidence is admissible against a criminal defendant is whether "that defendant has chosen to become a 'witness'" for purposes of N.J.R.E. 609. Ibid. The evidence was not admissible there because "[s]imply put, defendant was not a witness at the second trial." Ibid.
In this case, however, defendant did choose to become a "witness" at his second trial when he testified. On the one hand, the fact that the jury was instructed to disregard defendant's testimony did not change the fact that defendant was a witness for purposes of N.J.R.E. 609 and, as such, his credibility could be attacked by prior conviction evidence. On the other hand, it is also true that defendant's credibility was no longer at issue since the jury no longer had to decide whether his testimony was truthful; rather, they were instructed to disregard his testimony entirely.
Because there was no objection, defendant must establish that the admission of these convictions constituted plain error, that is, that it had the capacity to lead the jury to conclusions it would otherwise not have reached. For the reasons we set forth earlier in this opinion, we are satisfied defendant cannot reach this threshold.
Defendant argues also, for the first time on appeal, that the trial court committed plain error when it advised the jury, after striking defendant's non-responsive testimony, that there was no evidence that he suffered from a psychological illness or mental disease.
We have already set forth the judge's remarks to the jury striking defendant's testimony. At the conclusion of the judge's remarks, he made the following statement to the jury:
I advise you that there is no medical, psychiatric evidence in this case whatsoever to support or suggest a mental defense, insanity, diminished capacity as a defense for Mr. Wynn. It is absent. All right.
Mr. Wynn's behavior is what it is, all right. But I tell you it is not supported by any real medical evidence, all right, that I'm aware of. I'm certain that if it was available, I would know about it, and deal with it.
Defendant now contends that the above statements to the jury were irrelevant, since the judge had already instructed the jury to disregard defendant's testimony, and prejudicial, since "the jury must have concluded that defendant was engaging in a systematic, calculated effort to disrupt the trial through conduct which was sufficiently egregious that it necessitated his removal from trial."
The State responds that the trial judge's statements to the jury were proper "to make sure that the jury understood that there was no evidence to support the defendant's demonstration of mental illness." To the extent that there was any error made, the State invokes the "invited-error doctrine" and contends that defendant's behavior during his testimony induced the judge to make such statements.
In light of defendant's non-responsive statements during his testimony, the trial judge was confronted with the necessity of making a choice between two unpalatable options: saying nothing to the jury, running the risk that it would speculate that defendant was mentally ill, or advising the jury that such a concern was not warranted. In light of this trial judge's extensive experience with defendant's disruptive behavior, we decline to second-guess the discretionary determination he made in an effort to prevent defendant from sabotaging the third attempt to try him. As with defendant's preceding argument, we are satisfied there was no plain error.
We also reject defendant's argument that he was unfairly prejudiced by the admission of testimony by Barber and Mr. and Mrs. Ennis that each felt "scared" or "terrified" during the incident. Defendant contends that this testimony should have been excluded as irrelevant. We disagree.
Defendant was charged with three counts of first-degree robbery. An individual is guilty of robbery "if, in the course of committing a theft, he . . . [t]hreatens another or purposely puts him in fear of immediate bodily injury." N.J.S.A. 2C:15-1a(2). The victims' testimony was thus relevant to an element of the offense. Nor was the testimony so extensive or so inflammatory as to be considered unduly prejudicial under N.J.R.E. 403.
Defendant's remaining two arguments are that he was denied the effective assistance of counsel and that his sentence is manifestly excessive. We decline to address the first argument as it is more properly raised on a petition for post-conviction relief as opposed to a direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).
We turn then to defendant's contention that his sentence is manifestly excessive. The principles that govern our consideration of this argument are well-known. We must first determine whether the sentencing court followed the correct sentencing guidelines. State v. Roth, 95 N.J. 334, 365 (1984). If the sentencing court has recognized the governing legal principles and applied them appropriately, as a result of its "exercise [of] discretion in accordance with the principles set forth in the Code . . . [it] need fear no second-guessing." State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365)). These principles inform our judgment that defendant's sentence should be affirmed.
There is no dispute with respect to the fact that defendant's prior criminal record made him subject to a mandatory extended term as a repeat violent offender. N.J.S.A. 2C:43-7.1b. Defendant had been arrested more than forty times, had five prior felony convictions, and five final restraining orders had been entered against him under N.J.S.A. 2C:25-17 to -35 involving five separate complainants. The prosecution, citing this record, asked the trial judge to sentence defendant to an extended term of life in prison.
The trial judge rejected this request and imposed an extended term of thirty-five years in prison for defendant's convictions for first-degree robbery, subject to N.J.S.A. 2C:43-7.2. Further, the trial judge made these sentences concurrent. The only consecutive sentence the trial judge imposed was for the conviction for possession of a weapon by a convicted felon. In that instance, the trial judge imposed the minimum sentence permitted for a second-degree conviction, five years. The statute, moreover, mandates a five-year period of parole ineligibility for such a conviction. N.J.S.A. 2C:39-7. This conviction represents an entirely separate offense, thus warranting a consecutive sentence. We are unable to find any abuse by the trial judge of the discretion vested in him. He conscientiously reviewed the trial record and defendant's record, weighed the appropriate statutory factors and reached a sentencing conclusion in accordance with governing principles.
Defendant's convictions and sentence are affirmed.
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