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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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., ...