April 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KARIMAH GRIER, A/K/A KARIMAH A. GRIER, A/K/A REMA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-11-1150.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Defendant Karimah Grier appeals from her April 24, 2008 conviction in the Law Division, Mercer County. Defendant was found guilty by a jury of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). After merging counts two and three with count one, the court sentenced defendant to a term of seven years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a three-year term of parole supervision upon completion of the sentence of incarceration. We have considered defendant's challenges to the judgment of conviction and the sentence imposed in light of the applicable law, and we affirm.
The conviction arises out of an early morning incident that occurred on December 3, 2005, in the parking lot of Black Jack's Lounge. An assailant struck Sterlynn Ransom in the face with a glass beer bottle repeatedly until the bottle shattered. As a result of the attack, Ransom suffered damage to the left eye resulting in blindness, broken teeth, facial lacerations, and loss of consciousness. Ransom identified defendant as her assailant.
Ransom testified that she was familiar with the defendant and confident she had seen defendant in the bar that night, noting "[s]he stands out in a crowd. She's not a quiet person." Ransom testified she frequented Black Jack's Lounge for the past several years and had seen the defendant there many times before.
At about 1:42 a.m., Ransom left the bar and sat in her car. She turned the car on to warm it up, which automatically activated headlights and illuminated the back of the car directly ahead. Ransom testified she noticed defendant holding a Corona beer bottle while approaching Ransom's car. Although initially she thought defendant might have been walking to the car behind hers, she testified defendant opened her car door and began striking her on the left side of her face. The beating continued until the bottle burst and Ransom lost consciousness. After regaining consciousness, Ransom called her friend for help and was driven to the hospital. The staff reported the smell of alcohol on her breath and cannabinoids in her system.*fn1
Detective Gregory Hollo testified that he responded to a report of an aggravated assault that occurred in front of Black Jack's Lounge. He first spoke with Ransom while she was being treated for an eye injury. Ransom described her assailant as a "black female, approximately 25 to 26 years old. She was about five foot five, 130 to 140 pounds, unknown clothing description but she said she had blond hair." Ransom stated her assailant's nickname was "Rema" and that she had seen the assailant before. Hollo testified that Ransom did not appear to be under the influence of alcohol or marijuana.
Detective Singleton Law spoke with Ransom on December 8, 2005, at which time she repeated her description of her assailant and told Law defendant might work for Rick Bus Company in Trenton. Thereafter, Law inquired at the bus company whether any employees fit the physical description given by Ransom with the nickname Rema and was given the name Karimah Grier. Law then assembled a photograph lineup of defendant and "seven other individuals with similar descriptions." Another detective presented the lineup to Ransom for identification on December 13, 2005. After Ransom identified defendant as her assailant, Law took a formal statement from Ransom. The formal statement was consistent with the information Ransom had given to Hollo on the morning of the assault. Law asked, on a scale of one to ten, how strongly Ransom believed the person she had identified in the photograph was the person who assaulted her. Ransom responded, "a [nine]."
Prior to defendant's trial by jury, a Wade hearing was held.*fn2 In the lineup presented to Ransom, defendant was the only person pictured with blond hair. The affidavit of probable cause prepared for the arrest warrant did not include a hair color, however, the wanted poster listed defendant's hair color as black, blond and red, based on Ransom's information.
Detective Law testified that the "computer generated system didn't have any [other] black females wearing blond hair at the time of their arrest." He only used photographs in the Trenton Police database, although he had access to photograph databases of the Mercer County Prosecutor's Office, the Sheriff's Department, and several other jurisdictions in Mercer County. Law set up the array, and pursuant to protocol, another detective presented it to Ransom. Law did not indicate to Ransom that defendant's photograph would be in the array, nor did the detective presenting the array know which individual was the suspect.
The trial court found the array suggestive because it showed "only one blond-haired black female." The court then analyzed the likelihood of misidentification using the factors enumerated in Neils v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401, 412 (1972). Those factors included:
(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Ibid.
Applying these factors, the court observed that, at the hospital immediately after the incident, Ransom gave a description matching defendant and her statement ten days later reiterated what she initially told the police. The court found the streetlights and Ransom's headlights "would be enough" to illuminate the scene. Likewise, the court noted Ransom's certainty at the photo array (rating a nine out of ten), her statement that she had a clear view of the woman who attacked her, and her familiarity with defendant from having seen her at Black Jack's Lounge "quite often" over the past four or five years. The court found the passage of ten days between the incident and the photo array would not outweigh the other factors. Based on a consideration of these factors, the court found "that under the circumstances this was a reliable identification made by the victim and, therefore, it is admissible."
At the end of the State's case, defense counsel moved for acquittal, but the court denied that motion. On April 24, 2008, the jury returned a verdict of guilty on all counts. During sentencing, the court applied aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of prior record and seriousness of offense committed); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter the defendant and others from violating the law); as well as mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) (conduct is the result of circumstances unlikely to recur).
Defendant presents the following issues on appeal:
POINT I: TRIAL JUDGE ERRED BY PERMITTING, WITHOUT CURATIVE INSTRUCTIONS, MULTIPLE CHARACTER REFERENCES ABOUT DEFENDANT IN VIOLATION OF N.J.R.E. 404. (NOT RAISED BELOW).
POINT II: IMPROPER REMARKS IN THE PROSECUTOR'S SUMMATION, DESIGNED TO DISTORT AND SHIFT THE JURY'S FOCUS FROM THE FACTS TO DEFENDANT'S FACE, DEPRIVED HER OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL, U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS 1, 9, 10. (NOT RAISED BELOW).
POINT III: THE PHOTO ARRAY LINE UP LEADING TO THE IDENTIFICATIONS OF DEFENDANT WAS UNDULY SUGGESTIVE AND UNRELIABLE IN THE TOTALITY OF THE CIRCUMSTANCES, THAT ITS ADMISSION DENIES DEFENDANT'S DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947), ART. I, PARS 1, 9, 10. (PARTIALLY RAISED).
POINT IV: MISCARRIAGE OF JUSTICE WARRANTS REVERSAL OF THE APPELLANT'S CONVICTION AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT V: THE SENTENCE IMPOSED BY THE COURT IS ILLEGAL BECAUSE IT VIOLATES DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS 1, 9, 10. (NOT RAISED BELOW).
POINT VI: TRIAL COURT UNDULY RESTRICTED COUNSEL'S RIGHT OF EFFECTIVE CROSS EXAMINATION AND THUS WAS PREJUDICIAL TO DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
POINT VII: TRIAL COURT ABUSED ITS DISCRETION BY VIOLATING THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL. (NOT RAISED BELOW).
We first note that pursuant to Rule 2:10-2 a reviewing court is not obligated to consider errors not previously asserted unless the questions raised involve the jurisdiction of the trial court or subjects of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009). On the other hand, we hold the capacity to "notice plain error not brought to the attention of the trial court" so long as it is "in the interests of justice."
Ibid. (quoting R. 2:10-2). The exception provided by Rule 2:10-2 is not intended to replace the defendant's basic duty to build a complete record by preserving issues for appeal.
Defendant argues, for the first time on appeal, that the trial court erred by permitting the victim to testify that defendant "stands out in a crowd [and] is not a quiet person." Defendant also claims the court erred by allowing the prosecution to repeat this characterization during summation. Defendant suggests that the language, "not being a quiet person," is synonymous with having a bad temperament. The State counters that Ransom's description contributed to her credibility by giving reason for her familiarity with defendant.
Since defendant's counsel did not object to the testimony at trial, we apply the plain error standard. In general, the State may not present evidence of the defendant's character to support an inference about the defendant's conduct on a specific occasion unless the defendant has first presented evidence demonstrating his or her good character. State v. Hunt, 115 N.J. 330, 369, reconsideration denied, 117 N.J. 152 (1989). The State may, however, introduce character evidence before defendant puts his or her character in issue if the evidence will help the jury infer the defendant's motive, opportunity, intent, preparation or identity. Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 404 (2010).
We reject defendant's argument that the testimony was synonymous to stating defendant has a bad temper. Neither the prosecutor nor defense counsel sought to elicit further testimony from Ransom elaborating upon her description, defendant's temper was not explicitly mentioned, and it is not necessarily implied by the description given. The testimony merely demonstrated that Ransom had noticed and was familiar with defendant, even though the two were not personally acquainted. The challenged characterization was properly presented to the jury and was not capable of producing an unjust result. R. 2:10-2.
Defendant also argues, for the first time on this appeal, that the prosecutor made suggestive remarks depriving her of a fair trial. In particular, defendant takes exception to the prosecutor's remark during summation in which he stated:
And [the victim] told you the defendant sticks out in a crowd. And look, look at the defendant, she sticks out in a crowd. She does. You saw her probably ten times --well, nine times less than Ms. Ransom and you won't forget that face either because she sticks out in a crowd.
Assuming the impropriety of the remarks, which did not draw an objection at trial, we conclude their impact was not unduly prejudicial and therefore, harmless.
It is well settled that "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Prosecutors may not "make inaccurate legal or factual assertions during a trial." Id. at 85. Summations should be a review of and an argument on the evidence free from "improper expressions of personal or official opinion as to the guilt of the defendant . . . ." State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied sub nom. Thornton v. New Jersey, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963).
Appellate review assessing alleged prosecutorial misconduct, such as improper remarks in summation, requires us to determine whether "the conduct was so egregious that it deprives the defendant of a fair trial." Frost, supra, 185 N.J. at 83. When considering whether a prosecutor's misconduct was sufficiently egregious, we "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Ibid. (citing State v. Marshall, 123 N.J. 1, 153 (1991)). A reviewing court will look at factors such as: (1) whether defense counsel made a timely objection, (2) whether the remark was withdrawn promptly, (3) whether the trial judge ordered the remarks stricken, and (4) whether the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
Generally, if counsel does not object to the improper remarks, the remarks will not be deemed prejudicial, since the failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. Frost, supra, 158 N.J. at 83. Failing to object also "deprives the court of an opportunity to take curative action." Id. at 84.
The references to defendant standing out in a crowd were used by the prosecution to reinforce Ransom's testimony regarding her belief that defendant was her attacker. These remarks were not an opinion of defendant's guilt and were offered only to explain why Ransom would have recognized and remembered her. Thus, the references were not unduly prejudicial and did not deprive defendant of a fair trial.
Defendant also argues the prosecution's comment that the jury had seen defendant ten times was an improper reference to her failure to testify. That argument is wholly without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant argues the photographic lineup was impermissibly suggestive and the trial court erred in applying the factors for determining the admissibility of the eyewitness identification. Biggers, supra, 409 U.S. at 199-200, 93 S. Ct. at 381, 34 L. Ed. 2d at 412. The trial court's findings on the admissibility of identification evidence are "entitled to very considerable weight." State v. Farrow, 61 N.J. 434, 451 (1972). That is, its findings that identification procedures were reliable "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008). See also State v. Locurto, 157 N.J. 463, 470-71 (1999).
We will only set aside eyewitness identification, "if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968). A two-prong test has been developed "to determine the admissibility into evidence of an eyewitness's identification." State v. Madison, 109 N.J. 223, 232 (1988). First, a court should decide whether the procedure in question was impermissibly suggestive. If the court does find the procedure impermissibly suggestive, "it must then decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons, supra, 390 U.S. at 384, 88 S. Ct. at 971, 19 L. Ed. 2d at 1253).
The second step of the analysis focuses on the reliability of the identification. Id. at 232. If the court finds the identification is reliable despite an impermissibly suggestive procedure, the identification may be admitted into evidence. "Reliability is the linchpin in determining the admissibility of identification testimony[.]" Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
Reliability is determined from the totality of the circumstances present in the particular case. Biggers, supra, 409 U.S. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411; Adams, supra, 194 N.J. at 203. As noted, the factors considered include: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [Biggers, supra, 409 U.S. at 199-200, 93 S. Ct. at 381, 34 L. Ed. 2d at 412.]
See also Adams, supra, 194 N.J. at 204.
Against these factors, the court weighs "the corrupting effect of the suggestive identification itself." Brathwaite, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. For us to find the identification was impermissibly suggestive requires that the totality of the circumstances strongly indicates there is a substantial likelihood that the eyewitness irreparably misidentified the defendant. Madison, supra, 109 N.J. at 234 (quoting Farrow, supra, 61 N.J. at 451).
Here, the trial court found the fact that the defendant was the only blond in the photo array made the identification procedure suggestive. In determining the reliability of the identification, the court found (a) the headlights of the car and the streetlights located in the parking lot afforded Ransom adequate lighting and an opportunity to see the defendant, (b) Ransom was familiar with the defendant and even knew her nickname, (c) the witness's prior description of the defendant was accurate and consistent, (d) the witness had a high level of certainty, which did not appear to have been negatively affected by the ten day delay due, in part, to Ransom's hospitalization.
Based on our review of the record, we are convinced that there was sufficient credible evidence for the trial court to reach those conclusions, and we affirm the trial court's ruling for substantially the reasons stated on the record.
Defendant's argument that the jury verdict was against the weight of the evidence lacks merit. In addition, an appellate court will not consider an argument that a jury verdict is against the weight of the evidence unless the appellant moved for a new trial on that ground. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Because defendant failed to satisfy that threshold requirement, we decline to consider this argument.
Defendant argues the three years of parole supervision in addition to her seven-year sentence is a violation of her civil rights under the Sixth and Fourteenth Amendments. Defendant asserts the seven-year custodial term with a consecutive three-year parole supervision results in a ten-year term that exceeds the presumptive term.
In the context of guilty pleas, the Court has acknowledged "that penal consequences attach to a loss of a parole opportunity and, accordingly, have required trial courts to establish on the record that a pleading defendant is aware of any such loss that is part of the sentence to be imposed." State v. Johnson, 182 N.J. 232, 238-39 (2005). In defendant's case, she was sentenced to seven years with a mandatory three- year period of parole supervision. This does not exceed the maximum exposure of ten years for a second-degree crime. Also, the parole supervision period is required by NERA.
We similarly find no merit in defendant's argument that the sentencing judge made no mention of parole supervision during sentencing, yet included it in the judgment of conviction. The trial court's failure to mention the three-year parole supervision during the sentencing hearing was harmless error, as the period of parole supervision is statutorily mandated. Moreover, since defendant pled not guilty, the court's failure to mention the post-incarceration parole supervision could not have prejudiced her decision to invoke her right to a jury trial.
Defendant next argues the court erred by improperly allowing hearsay testimony by Detective Law. She urges that his statements did not fall within any cognizable exception to the hearsay rule and, further, that the jury heard the inadmissible statement, even though an objection was subsequently sustained on that testimony. Defendant makes no argument as to how this testimony "contaminated" the jury, but she insists that this testimony "curtail[ed] the defense counsel's right to cross examine [her] accusers," resulting in plain error and warranting a new trial. The information provided by Detective Law in his testimony was also testified to by either Detective Hollo or Ransom herself. Without further explanation by defendant, as to how counsel's right to cross-examination was unduly restricted, there is no evidence that Law's statements prejudiced defendant's right to a fair trial.
We next address defendant's speedy trial argument. The right to a speedy trial is fundamental and is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515 92 S. Ct. 2182, 2184, 33 L. Ed. 2d 101, 108 (1972). However, that right is also relative and depends upon circumstances. State v. Szima, 70 N.J. 196, 200 (1976). The factors which courts should assess in determining whether a defendant has been deprived of the right to a speedy trial are "length of delay, the reason for the delay, the defendant's assertion of the right and prejudice to the defendant." Id. at 201. Prejudice based on impairment of the defense is considered the most serious since it goes to the question of fundamental fairness. Ibid.
Here, defendant was not subjected to protracted pre-trial incarceration. At sentencing, her credit for time spent in custody reflected that she had spent forty-three days in jail.
Although the record does not reflect a reason for the delay, defendant made no effort to assert her right to a speedy trial by moving to dismiss the complaint. R. 3:25-3 (allowing dismissal of indictments for which there is an unreasonable delay in trying them upon defendant's motion or by the judge sua sponte). Nor does she explain how the delay denied her the opportunity to adequately prepare her defense. In light of defendant's scant argument, pursuant to Rule 2:10-2, a reviewing court is not obligated to consider errors not previously asserted. Robinson, supra, 200 N.J. at 20.