August 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN WAYNE SAMUELS, A/K/A, POP, BRYAN SAMUELS, JEFFREY SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-08-1368.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 11, 2011
Before Judges A.A. Rodriguez, Grall and LeWinn.
In 2000, defendant was indicted along with co-defendant Godfried Mainhooh for: second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four). Defendant was also indicted for second-degree certain persons not to have firearms, N.J.S.A. 2C:39-7(b) (count six), and third-degree resisting arrest, N.J.S.A. 2:29-2(a) (count ten). Tried alone, defendant was convicted on counts one, two, three, four and ten.*fn1
At sentencing, the State moved to dismiss count six. Defendant was sentenced to an aggregate term of fifty years imprisonment with a seventeen-year period of parole ineligibility.
Defendant appealed. We reversed his convictions for possession of a weapon for an unlawful purpose and resisting arrest, based on erroneous jury instructions. State v. Samuels, No. A-0967-02 (App. Div. November 9, 2005) (slip op. at 27-28). The Supreme Court granted defendant's petition for certification. 186 N.J. 244 (2006).
On January 31, 2007, the Supreme Court reversed defendant's convictions for conspiracy and armed robbery, holding that the trial judge had erred in failing to charge attempted robbery as a lesser-included offense and in failing to provide accurate jury instructions on the distinction between conspiracy and accomplice liability. State v. Samuels, 189 N.J. 236, 252, 253-54 (2007).
The matter was remanded for retrial on counts one, two, three and ten. At pretrial proceedings on July 3, 2008, defendant sought to discharge his court-appointed attorney and represent himself. Following a hearing, the judge denied this request, finding from his questioning of defendant that he was not capable of representing himself. The judge found that defendant showed confusion as to: (1) "how he was convicted the last time"; (2) "the jury's ability to reach their conclusions"; (3) "why he was initially charged with robbery in the indictment"; (4) "what an affirmative defense is"; and (5) "whether or not it would be in his best interest to either testify or not testify without having someone giving him advice on that issue." The judge further concluded that defendant would be unable "to articulate properly his cause to the jury. He is not familiar with the voir dire process . . . and what all that entails."
The judge reviewed the evidence from the first trial, as well as the appellate decisions, and stated that he was satisfied, listening to the defendant read . . . his understanding of how the matter got here, that he doesn't completely understand it. . . . [I]t would be a travesty of justice . . . to allow him at this point to represent himself. . . .
He is not capable, based on his educational background, his knowledge of the law, and his abilities here, to effectively provide his own counsel.
Retrial was held between December 2 and 10, 2008. At the outset, the judge granted the State's motion to reinstate count six with the understanding that if defendant were again convicted of armed robbery, the State would dismiss that count at sentencing as it had done after the first trial. The judge also noted that neither this court nor the Supreme Court had addressed defendant's conviction on count four, aggravated assault by pointing a weapon at a police officer. Defendant stated his preference that count four not be vacated and retried.
The State then moved to dismiss count one without prejudice, stating that it intended to proceed on the theory of accomplice liability. Defendant did not object to this.
Trial then proceeded on counts two, three and ten of the indictment. We summarize the pertinent trial evidence.
On the evening of May 4, 2000, several officers assigned to the Anticrime Task Force of the Long Branch Police Department were at the Fountains Motel for the purpose of conducting an undercover narcotics investigation, specifically with respect to Mainhooh, known to them as "Rahim." An informant had told the officers that "Rahim" did not "like to do open air drug deals. He preferred to come to somebody's house or . . . a secure location." Therefore, the officers booked two adjacent rooms, 229 and 230, at the motel. Officer Jeffrey Pilone and Lieutenant Roebuck were in Room 229; other officers were next door.
Around 10:00 p.m., using the motel room phone, Pilone called "Rahim" on a cell phone number the informant had provided. The officer identified himself as "Jimmy" and said he had met "Rahim" in Asbury Park "at . . . Mama's house[,]" which was a password also provided by the informant. The person who answered identified himself as "Rahim." Pilone ordered "two bundles of heroin and crack cocaine, for a total of $1200. "Rahim" said he would deliver the drugs in a half hour.
About five minutes later, "Rahim" called the motel room telephone to confirm that "Jimmy" was still there. An hour later, "Rahim" knocked on the door of Room 229. Twice, Pilone said "Who?" and "Rahim" responded with his name. Pilone looked through the peephole and saw only "Rahim."
Roebuck then opened the door. Pilone ran out shouting "'Police. Police, police.'" At that point Pilone observed that "Rahim" was holding a gun; the officer continued to approach "Rahim" and then "grabbed ahold [sic] of his gun . . . and . . . pushed him back out on the railing." Pilone testified that once he saw "Rahim" holding a gun, the officer did not think he was there to sell drugs, but rather to rob or shoot him.
While Pilone was struggling with "Rahim" at the rail outside Room 229, defendant came alongside and grabbed the officer "in a bear hug" on his "gun side." Defendant pushed and pulled the officer, "trying to pull [him] away and off of Rahim." Pilone grabbed defendant; this allowed "Rahim" to free himself and he ran off.
Pilone pulled defendant back through the doorway into Room 229 and after a "brief struggle," in which defendant "knee[d him], elbow[ed him]," the officer "took him to the ground and eventually . . . was able to handcuff him." Pilone placed defendant under arrest, advised him of his Miranda*fn2 rights and stated, "I know why you're here. . . . Where are the drugs?'" Defendant answered, "'I don't have any drugs. We don't have any drugs.'"
Roebuck and the other officers pursued "Rahim" during Pilone's struggle with defendant. They saw "Rahim" turn a corner and "ma[k]e a throwing motion with his right hand."
Although Roebuck did not see what was thrown, he "heard something metal hit the ground." Roebuck caught up with "Rahim" and placed him under arrest. After leaving "Rahim" in the custody of the other officers, Roebuck returned to the area where he had seen him throw something. He discovered a gun that was "loaded. There were bullets in the magazine, and there was a round in a chamber, and the hammer was cocked back."
At the conclusion of the State's case defendant moved to dismiss the robbery charge, arguing that there was "no course of thievery. There's no attempt at a theft." The judge denied the motion, noting that the jury could infer that "Rahim went [to the motel] with the attempt [sic] to commit a robbery and not to sell drugs[,]" and defendant's accomplice liability was "an issue of fact for the jury."
Defendant testified that at about 10:00 p.m. on the evening in question he met "Rahim" in Asbury Park coming out of a building and talking on his cell phone. When "Rahim" hung up he told defendant to take a ride with him. Defendant agreed, but did not know the purpose of the ride because they "didn't get into all that . . . ." He knew "Rahim" was a "drug dealer."
They took a cab to Long Branch. Defendant fell asleep during the ride and had no conversations with "Rahim." When they arrived at the motel, "Rahim" appeared not to know where to go. They went upstairs and walked around an outer walkway and stopped in front of Room 229. Defendant remained by the stairs "looking at some girl"; he was not facing "Rahim." He heard "Rahim" knock on the door and someone inside ask "who?" "[A]ll of a sudden, [he] hear[d] Rahim say, 'Oh s--t,' and take off running." Three police officers came "out [of] the room chasing Rahim."
"Rahim took off" and three officers pursued him. Pilone "walk[ed] out of the room calmly" and asked defendant "'[w]here's the car and the coke . . . .?'" Defendant said he did not know what the officer was talking about. Pilone "grab[bed]" defendant and "pull[ed]" him into the room, "la[id him] in the middle of the floor" and handcuffed him. The other officers returned to the room, said that "Rahim" had "jumped" and they had found a gun. Defendant denied knowing "Rahim" had a weapon; nor did he ever see a gun. He stated that it was never his intention to "rob anybody"; nor did he discuss "that intention" with "Rahim." No drugs were found on defendant or "Rahim." Nor were any drugs located in the area where "Rahim" was arrested.
The jury convicted defendant of first-degree armed robbery (count two) and fourth-degree resisting arrest (count ten); he was acquitted of possession of a weapon for an unlawful purpose (count three). The judge denied defendant's post-trial motions for a judgment of acquittal and a new trial.
On February 27, 2009, defendant was sentenced as a persistent offender, pursuant to N.J.S.A. 2C:43-7.1(b)(1), to a term of forty years on count two with a seventeen-year parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), and a ten-year parole ineligibility period under the Graves Act, N.J.S.A. 2C:43-6(c). On count ten, defendant was sentenced to a concurrent term of four years; count four was merged into count two.
On appeal, defendant raises the following contentions for our consideration:
Point 1 The trial court violated defendant's constitutional right to self-representation.
Point 2 Judgment of acquittal should have been entered on the armed robbery charge.
Point 3 The accomplice liability principles imparted to the jury during trial were flawed and prejudicial to defendant (plain error).
Point 4 The admission of hearsay statements made by the alleged co-perpetrator violated the Rules of Evidence and defendant's constitutional right to confront the witnesses against him (plain error).
Point 5 Defendant's sentence is improper and excessive.
Having considered these contentions in light of the record and the controlling legal principles, we discern no basis to reverse defendant's convictions or modify his sentence.
The decision whether to allow a defendant in a criminal trial to represent himself rests within the sound discretion of the trial judge. State v. Reddish, 181 N.J. 553, 595 (2004). The judge must determine "whether the waiver is knowing and intelligent given the unique circumstances of each case." Ibid.
This case certainly presents "unique circumstances[,]" including: (1) our reversal of defendant's convictions for possession of a weapon for an unlawful purpose and resisting arrest; (2) the Supreme Court's reversal of his convictions for conspiracy and armed robbery; (3) the State's dismissal of the conspiracy charge prior to retrial; (4) the State's reinstatement of count six at retrial; and (5) the fact that defendant's conviction for aggravated assault had not been addressed on appeal, leaving its status to be resolved prior to retrial. While "'technical legal knowledge, as such [may not be] relevant to the assessment' of whether a defendant can represent himself," to find a waiver of assistance of counsel to be knowing and intelligent, the defendant "must know in a basic fashion the fundamental legal rights and issues that will be affected by his decision." Reddish, supra, 181 N.J. at 592 (quoting Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 582 (1975)). The reasons stated by the trial judge in denying defendant's request to represent himself satisfy us that the judge did not abuse his discretion in reaching that determination.
Immediately prior to sentencing defendant moved for a judgment of acquittal or, alternatively, for a new trial. He asserted the same grounds in support of both requests, namely:
(1) there was insufficient evidence to convict him of armed robbery; and (2) that conviction was inconsistent with his acquittal on the weapons offense. In denying both requests the judge stated:
Here, the record reveals sufficient evidence to convict this defendant. This [c]court notes that a jury has convicted defendant twice on the charge of armed robbery as an accomplice, further demonstrating the strength of the evidence. The defendant knew that neither he nor [Mainhooh] had drugs when they went to the hotel. Defendant fought with Officer [Pilone], allowing [Mainhooh] to temporarily escape. The defendant also stated that he saw the gun drawn prior to his fighting with [Pilone] during this incident.
Finally, the length of the cab ride could have led a jury to believe that the defendant and [Mainhooh] had discussed the details of the proposed robbery. Therefore this [c]court believes that there was sufficient evidence to convict the defendant on the charge of armed robbery as an accomplice and the [c]court will not speculate on the not guilty finding on the other charge of possession of a weapon for an unlawful purpose other than to note that no evidence was submitted that defendant here himself actually possessed the firearm at any time.
In deciding a motion for a judgment of acquittal, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]
We are satisfied the judge properly applied the Reyes standard in denying defendant's motion. Moreover, the law is clear that "[i]nconsistent verdicts are accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004)(citing State v. Grey, 147 N.J. 4, 11 (1996)). We consider any further discussion of this issue unwarranted.*fn3 R. 2:10-3(e)(2).
Defendant's argument regarding flawed jury instructions on accomplice liability is raised as plain error. R. 2:10-2. We note that defendant cites primarily to comments made by the prosecutor in his opening and summation; the only reference to the judge's language is in a brief re-instruction in response to a question from the jury. For the reasons that follow, we find no error, let alone plain error, in that re-instruction.
At the outset of his charge, the judge instructed the jury:
You must accept and apply th[e] law for this case as I [give] it to you in this charge. Any ideas you have of what the law is or what the law should be, or any statements by . . . the attorneys as to what the law may be, must be disregarded by you if they conflict with my charge.
Defendant does not challenge the judge's initial jury instruction on accomplice liability. Rather, he points to language in the judge's response to a jury question that, he claims, in combination with the prosecutor's comments, "resulted in flawed accomplice liability principles imparted to the jury and warrants a new trial . . . ."
During its third day of deliberations, the jury sent out the following question: "Can we please have an explanation of Count 1A [accomplice to armed robbery] . . . specifically where it states . . . 'same criminal intent.'"*fn4 The judge re-instructed the jury that "defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal acts, so that's the same state of mind." The judge added:
You may find . . . that either [defendant] was there with no intent to do this, had no knowledge it was going on, or you may find that he was there and had joined in the idea of committing the robbery, was there for whatever purpose the State alleges or is inferred . . . .
It is not sufficient to prove only that defendant had knowledge that another person was going to commit the crimes charged, the State must prove that it was . . . defendant's conscious object that the specific conduct charged be committed.
This language clearly refutes defendant's claim that the "re-charge . . . suggested that knowing 'what was going on' is sufficient to trigger accomplice liability . . . ." To the contrary, the judge specifically instructed the jury that "knowledge that another person was going to commit the crimes charged" was "not sufficient." To the extent the prosecutor may have improperly characterized accomplice liability in his remarks to the jury, we are satisfied that the judge's instruction that the jury disregard any comments by counsel that conflicted with his charge, eliminated any prejudice to defendant.
Defendant's argument regarding the admission of statements attributed to Mainhooh is also raised as plain error. R. 2:10-2. We are satisfied that it is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Suffice it to say, those statements were admissible pursuant to N.J.R.E. 803(b)(5) as "a statement made at the time the party and the declarant were participating in a plan to commit a crime . . . and the statement was made in furtherance of that plan." Defendant does not address this rule in his argument. We presume that the absence of any objection to the admission of these statements stemmed from trial counsel's familiarity with this hearsay exception. Defendant's constitutional right to confront witnesses was not impinged by admission of these statements, as he claims. See State v. Savage, 172 N.J. 374, 402 (2002) (this hearsay exception "does not offend the Sixth Amendment's guarantee of a defendant's right to confront the witnesses against him").
Finally, we briefly address defendant's sentence. In light of his prior convictions for second-degree aggravated assault in 1981 and 1993 and for manslaughter in 1981, defendant was clearly extended-term eligible pursuant to N.J.S.A. 2C:43-7.1(b); in fact, he was eligible to receive a sentence between twenty years and life, pursuant to N.J.S.A. 2C:43-7(a)(2). He was also eligible to be sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).
In reviewing sentences, we engage in a three-step analysis:
[F]irst, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [State v. Roth, 95 N.J. 334, 365-66 (1984).]
We will not modify a sentence unless it constitutes "such a clear error of judgment that it shocks the judicial conscience."
Id. at 364. Nor will we "substitute [our] judgment for that of the trial court[,]" or "second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. Cassady, 198 N.J. 165, 180-81 (2009) (citations omitted).
Our review of the sentencing transcript reveals "substantial evidence in the record," id. at 180, to support the judge's findings that aggravating factors three, six and nine applied and that no mitigating factors applied. N.J.S.A. 2C:44-1(a)(3), (6), (9). The forty-year sentence was well within the twenty-years-to-life range for which defendant was eligible. In short, we discern no basis to modify this sentence.