September 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL J. LEVINS, AKA DANIEL JOSEPH LEVINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-2194.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2011
Before Judges R. B. Coleman and J. N. Harris.
Following a trial before Judge Jamie S. Perri and a jury, defendant Daniel J. Levins was found guilty of armed robbery; third-degree aggravated assault, as a lesser included offense; unlawful possession of a weapon (a baseball bat); possession of a weapon for an unlawful purpose; and criminal mischief. In this appeal, defendant challenges rulings made pretrial and during trial concerning the admissibility of evidence which defendant contends undercut his defense that he never intended to rob the liquor store and that his conduct was an attempt to commit suicide by provoking the operator of the store to shoot him. We reject defendant's claims of prejudicial error and affirm his conviction and sentence.
The facts of this case are generally undisputed. Defendant was a regular customer of the Spirits Unlimited Liquor Store in Hazlet. A few minutes prior to 10:00 p.m. on February 11, 2008, a man wearing a ski mask and sunglasses entered Spirits Unlimited while carrying a baseball bat. The man demanded that the two store clerks open the cash register and give him the money. When they did not immediately comply, defendant proceeded to smash the cash register, bottles, the credit card machine and a lottery machine. He then walked around the counter and struck the male clerk in the head with his bat. He also struck him in the shoulder and forearm. A struggle ensued and the two men fell to the floor. During the struggle, the clerk removed assailant's mask and sunglasses. The assailant stopped his attack and attempted to run towards the door, however, before he could flee, the clerk grabbed the bat and struck him in the back of the head. The assailant escaped and the clerk immediately called police.
Police responded to the clerk's 911 call and soon arrived at the scene. Both clerks were familiar with defendant and identified him as the person who had attempted to rob the store. They reported that defendant lived in a trailer park behind the liquor store. A canine unit was called in and led police to defendant's home. Defendant failed to answer the door, and the officers detected the odor of gas, prompting them to enter the trailer by kicking in the door. They discovered defendant unconscious on the kitchen floor with blood coming from his head and wrists. He had slit his wrists and turned on the gas oven. The officers shut off the gas, opened windows, and removed defendant from the trailer. They treated him with first aid and transported him to the hospital. After Miranda*fn1 warnings were administered to defendant in the hospital, he disclosed to the officer on duty that he had been in landlord-tenant court, and that he was to pay $3,000 or be evicted.
On September 23, 2008, a grand jury returned Indictment No. 08-09-2194 against defendant for armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count five). The indictment was later amended to downgrade third-degree criminal mischief to the fourth degree.
Following a four-day trial, the jury returned its verdict, after which the court sentenced defendant to a twelve-year term with an eighty-five percent period of parole ineligibility on count one, armed robbery; a four-year concurrent term on count two, aggravated assault; and an eighteen-month concurrent term on count five, criminal mischief. The weapons offenses, counts three and four, were merged with count one. The court also imposed statutory fines, assessments and penalties.
Defendant makes the following arguments on appeal:
POINT I: THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE STATE'S EVIDENCE AND ARGUMENT THAT THE DEFENDANT WAS MOTIVATED TO COMMIT THE THEFT BECAUSE HE WAS DESTITUTE. (Not raised below)
POINT II: THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT THERE HAD BEEN A ROBBERY, THEREBY VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not raised below)
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE.
POINT IV: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAIVED HIS MIRANDA RIGHTS VOLUNTARILY AND KNOWINGLY.
POINT V: THE TRIAL COURT IMPROPERLY ADMITTED THE VICTIM'S PRIOR CONSISTENT TAPED STATEMENT.
POINT VI: THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
We have carefully considered defendant's arguments in light of the facts and applicable law, and we are not persuaded that any of the asserted errors have merit. Points I and II were not presented at trial and therefore are subject to review for plain error. R. 2:10-2. Under that standard, we will not reverse on the ground of such error unless the appellant shows the error was "clearly capable of producing an unjust result." Ibid. These asserted errors do not have that capacity.
Defendant argues he was prejudiced by the State's argument that he committed robbery because he was destitute. He owed $3,000 in rent and faced eviction, but at trial, defendant sought to establish that he did not intend to rob the Spirits Unlimited store. Instead, he contends he attempted to provoke the store clerk into shooting or otherwise killing him. Defendant testified that he believed the store clerk had a gun behind the counter and he hoped to be shot to death. He asserts on appeal that evidence of wealth or poverty is inadmissible and prejudicial evidence. The State argues, and the trial court determined, that defendant placed his intent and motive at issue through his defense of attempted suicide. The State adds that the evidence of defendant's financial need was relevant and necessary to counter defendant's assertion of an intent to commit suicide by another's hand.
In general, prosecutorial comments to a jury and questioning that evokes testimony regarding a defendant's impecuniosity are not permitted, however, such comments and questioning are permitted in certain circumstances. For example, in State v. Mathis, 47 N.J. 455, 471 (1966); rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971), the Supreme Court stated, "[u]ndoubtedly a lack of money is logically connected with a crime involving financial gain. The trouble is that it would prove too much against too many." Thus, to avoid undue prejudice, the Court directed that "in general terms, there must be something more than poverty to tie a defendant into a criminal milieu." Id. at 472.
In State v. Farr, 183 N.J. Super. 463, 468-69 (App. Div. 1982), we held the prosecutor's questioning and comments regarding defendant's employment status were a proper response to the defendant's testimony that he was employed and had money, which was used to show a lack of motive to commit armed robbery. We reasoned, "[o]nce defendant placed this evidence before the jury, the State had the right to cross-examine him and refute his testimony concerning it." Ibid.
Here, defendant argues the State introduced a theory of destitution in its opening statement and therefore it was not merely rebutting testimony from the defendant. Specifically, defendant points to the assistant prosecutor's opening statement in which she stated "at the hospital, the defendant spoke to Officer William Marvel of the Hazlet Police Department. He told Officer Marvel, I had been in landlord-tenant court. I was going to be evicted. I needed $3,000." The assistant prosecutor also concluded her opening statement saying "[t]he evidence is going to show . . . the defendant needed $3,000 so he told them to give him 'the . . . money.'"
While there is little doubt that such information regarding a defendant's financial need is probative and relevant in response to a defense that places in issue defendant's statement of mind, we have also affirmed trial court rulings permitting evidence and comments on a defendant's impecuniousness in anticipation of a defense. See State v. Robinson, 139 N.J. Super. 58, 63 (App. Div. 1976); certif. denied, 75 N.J. 534 (1977) (allowing prosecutor to elicit witness testimony which conflicted with anticipated testimony of defendant).
Here, defendant admitted he entered the store and attacked the clerk. The predominant issue in dispute was whether he intended to rob the store, as the State contended, or whether, as defendant urged, his actions effectively constituted a suicide attempt. Defendant's own attorney highlighted this issue in his opening statement:
This case, ladies and gentlemen, is about state of mind. Each and every one of you were asked questions at sidebar where it was mentioned to you that there would be evidence presented in this case about suicidal thoughts and attempts at suicide. So you're going to have to determine the intent, the motive, and the state of mind of Daniel because it's submitted to you that, in fact, what occurred is Daniel did go into the store with that bat. He went into the store with that mask. He did make threats. He did smash things up. He did say, "Give me the money." But his intent, which is the key in this case, is the only issue . . . . He was hoping that Mr. Soni would pull a gun out and blow him away. He wanted to die.
Evidence of prior suicide attempts, which defendant used to bolster his defense, was admitted without opposition. Based on the unique facts of this case, the prosecution was therefore appropriately allowed to assert, in anticipation of this defense, that defendant's true motive was to rob the store to pay his rent, rather than to attempt suicide.
Furthermore, defendant's failure to object to the statements made during openings or at other points during trial deprived the trial court of the ability to cure any perceived error. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Macon, 57 N.J. 325, 333 (1971). Under the totality of the circumstances, we find the trial court's exercise of discretion in allowing references to defendant's statements regarding the imminent eviction and his $3,000 debt were appropriate and not clearly capable of producing an unjust result.
Defendant argues erroneous jury instructions deprived him of a fair trial. He contends the jury was confused when the judge stated that "the jury ha[s] to decide 'whether the defendant was in the course of committing a theft when the robbery occurred.'" Defendant argues this erroneous statement caused the jurors to presume that a robbery had occurred.
Our review of an alleged erroneous jury instruction must be viewed in the context of the overall charge. State v. Reyes, 140 N.J. 344, 359 (1995). If an error "has not demonstrably impaired the ability of the jury to deliberate impartially upon its verdict, a conviction should not be reversed." State v. Simon, 79 N.J. 191, 207 (1979).
The full context of the misstatement during the charge was as follows: "You should consider this evidence along with all of the evidence in the case in determining whether or not the State has proven beyond a reasonable doubt that the defendant was in the course of committing a theft when the robbery occurred." This instruction was given to the jury to highlight defendant's defense that he never intended to commit a theft and therefore was not guilty of robbery. The court initially explained that:
In this case, [defendant] has raised the defense that it was not his intent to commit a theft at the Spirits Unlimited store. Rather, he claims that as a result of his mental state at the time it was his intent to commit suicide by provoking a response from the shopkeeper that would end his life. He, therefore, claims that he is not guilty in the first or second degree because he did not intend to commit a theft, which is an essential element the State must prove beyond a reasonable doubt.
Plain error in jury instructions is defined as:
legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. [State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).]
In the context of the overall charge, defendant's claim of error was not capable of affecting the jury verdict. The court's initial instructions span over sixty-one pages of transcript. Further, the jury was instructed twice on the charge of robbery and the judge fully explained and made abundantly clear that the intent to commit a theft was an essential element of robbery. The isolated misstatement emphasized by defendant held little potential to confuse the jury and therefore could not have sufficiently confused the jury or prejudiced the defendant to convince us of plain error.
Defendant next argues the court impermissibly allowed evidence of other crimes. Specifically, defendant takes exception to the trial court permitting evidence of a prior confrontational incident between the store clerk and defendant.
Our review of a trial court's evidential ruling, "is limited to examining the decision for abuse of discretion."
State v. Kemp, 195 N.J. 136, 149 (2008); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). The Supreme Court has set out a four-prong test to aid courts in determining the admissibility of N.J.R.E. 404(b) evidence: (1) The evidence of the other crime must be admissible as relevant to a material issue; (2) It must be similar in kind and reasonably close in time to the offense charged; (3) The evidence of the other crime must be clear and convincing; and (4) The probative value of the evidence must not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992).
During a pretrial 404(b) hearing, the store clerk testified the defendant had threatened him a couple months prior to February 11, 2008, because he would not give defendant's girlfriend a pack of cigarettes below the listed price. The clerk testified defendant never returned to the store after that disagreement until the date of the robbery. The court found this evidence was not relevant until the defendant put the issue of motive before the jury, and therefore the court would not allow the evidence in the State's case-in-chief. After the State rested, the court revisited the matter and ruled the evidence was relevant to a material issue in dispute - defendant's motive and intent to commit robbery. The store clerk never testified in front of the jury regarding the incident, however, because defendant himself described the incident in his direct testimony and was cross-examined.
In reviewing the admission or exclusion of evidence under N.J.R.E. 404(b), we have stated:
N.J.R.E. 404(b) specifically admits other-crimes evidence for proof of motive subject to the Cofield test. A wider range of evidence may be admissible to prove motive as long as there is a logical connection between the alleged motive and the other-crimes evidence. Moreover, motive is a material issue in dispute where the defendant asserts innocence . . . . As stated by our Supreme Court in an earlier case:
All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission of the offense. [State v. Castagna, 400 N.J. Super. 164, 178 (App. Div. 2008) (citations omitted).]
Here, there is a logical connection between the motive to rob the store and the prior confrontation. Still, defendant argues the admission of N.J.R.E. 404(b) evidence lacked relevance and prejudiced his trial. The court, in permitting the evidence, found that since defendant was raising the issue of motive his prior confrontation with the store clerk was relevant to the issue of intent. "[G]reater leeway is given when the evidence is proffered on the issue of motive, and there must be a 'very strong' showing of prejudice to exclude evidence of a defendant's motive." Castagna, supra, 400 N.J. Super. at 180.
Based on our limited scope of review, we do not find the trial court abused its discretion as a logical connection exists between the prior altercation in which defendant made what the store clerk perceived as a threat, and defendant's motive to rob the store. Defendant argues the prejudice he suffered is that the jury would think he was a bad person for his "verbally abusive" behavior. Given that defendant was the sole source of testimony concerning that incident and only experienced brief cross-examination on the issue, we reject defendant's assertion of prejudice.
Defendant argues the State failed to prove beyond a reasonable doubt that he waived his Miranda rights. It is well established that the trial court alone shall determine (1) whether the Miranda warnings were given to the accused and his rights thereunder waived by him before the confession was given; and that if it finds the warnings were not given, or if given the rights not waived, the confession must be excluded, and (2) if those conditions were satisfied, whether in light of all those circumstances attending the confession it was given voluntarily. [State v. Hampton, 61 N.J. 250, 272 (1972).]
In other words, "the trial judge is to be the sole arbiter of the voluntariness of a defendant's statement." State v. Thomas, 76 N.J. 344, 366 (1978). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); State v. Knight, 183 N.J. 449, 468 (2005).
At defendant's Miranda hearing, Officer Marvel testified that on the night of the robbery, he accompanied defendant to Riverview Hospital and guarded him while he received medical treatment. Officer Marvel stood approximately five feet from defendant, who received care for a head injury. Officer Marvel described defendant's conversations with hospital staff as coherent and lucid. After defendant was placed in a private room, defendant began to speak to Officer Marvel about his case. Officer Marvel stopped defendant and read him his Miranda rights from a pocket-sized card. Officer Marvel had defendant initial each line on the card after he read it. Officer Marvel testified defendant still wished to talk after he initialed the card.
Officer Marvel estimated an hour and a half elapsed from the time defendant was arrested to the time he waived his Miranda rights. Officer Marvel observed that defendant appeared normal based on their previous dealings and appeared not to be under the influence of any intoxicating substance. Defendant told Officer Marvel he had attended landlord/tenant court earlier that day and was informed he needed to pay $3,000 or he faced eviction.
Defendant testified that he remembered being treated at the hospital and remembered seeing Officer Marvel there. Defendant also acknowledged the initials on the card were his. However, he testified he was unable to recall speaking with Officer Marvel, receiving his Miranda rights or initialing Officer Marvel's card. Defendant also clarified that, contrary to his alleged statement to Officer Marvel, he had been in landlord/tenant court two weeks earlier, not earlier that day.
Before rendering his decision, the judge twice stated the court's purpose in a Miranda hearing is to determine "whether or not the [c]court is satisfied that based on a totality of the circumstances that the defendant was provided with the Miranda warnings and that he made a knowing, intelligent, and voluntary waiver of his right before making the statement." Based on a totality of the circumstances, the court determined beyond a reasonable doubt that defendant had been given his rights and had voluntarily and knowingly waived them. The court based its decision on Officer Marvel's and defendant's testimony, as well as an examination of the initialed Miranda card. Specifically, the court was convinced by Officer Marvel's experience, his adherence to standard procedure, the defendant's ability to communicate with medical staff, the defendant's ability to remember Officer Marvel's first name from a previous encounter and the fact that Officer Marvel stopped defendant from speaking before reading him his rights. The court expressly noted that it found Officer Marvel credible and that defendant's initials on the Miranda card were well-written.
Since the court applied the proper legal test and its findings are supported by sufficient credible evidence in the record, we are satisfied the State established beyond a reasonable doubt that defendant waived his Miranda rights and that his statement was properly admitted into evidence.
Defendant also challenges the court's admission of a tape-recording of the store clerk's 911 call. The court conducted a Driver*fn2 hearing to determine the admissibility of the clerk's 911 call. The court found that the recording of the 911 call was sufficiently audible and intelligible. Defendant does not offer any reason for his claim that the tape did not meet the standard for admissibility, except that the tape had not been transcribed. We are bound by the trial court's factual determination. Rova Farms, supra, 65 N.J. at 484.
Moreover, we reject defendant's argument that the 911 call improperly bolstered the clerk's testimony, violating N.J.R.E. 607. The court admitted the tape as an excited utterance on the issue of the clerk's serious bodily injury, not his credibility. N.J.R.E. 803(c)(2). The court permitted the tape to the extent it spoke about the clerk's immediate report of injuries and the impact of those injuries on the clerk. Thus, the prohibition under N.J.R.E. 607 is inapplicable.
Defendant argues his sentence is excessive, and he should have been sentenced to a ten-year term. The New Jersey Code of Criminal Justice prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). Our review of a trial court's sentence is guided by the three-factor test found in State v. Roth, 95 N.J. 334, 364-65 (1984), which looks to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience. In reviewing a sentence imposed by a trial judge, we "may not substitute [our] judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). As stated by the Supreme Court in Cassady:
An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.
[Id. at 180 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).]
In the present case, the trial court applied aggravating factor three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offense, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court also found two mitigating factors: factor four, there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4); and factor eleven, the imprisonment of the defendant would entail excessive hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11). The court determined that the aggravating factors outweighed the mitigating factors and sentenced defendant to a total of twelve years with eighty-five percent parole ineligibility pursuant to the No-Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant argues the court failed to properly weigh the aggravating and mitigating factors. The record shows that the court, in sentencing defendant, considered each factor and identified those that it did and did not apply. The basis for aggravating factor three was defendant's criminal record which had not deterred him from committing additional crimes and the fact that the present offense was committed while defendant was on probation. The basis for aggravating factor six was defendant's history of threatening and violent behavior, including assaults, aggravated assault with a deadly weapon, harassment and terroristic threats. The court also found aggravating factor nine "clearly applies in this matter."
The court took into account as mitigating factor four defendant's physical, mental and emotional conditions, including his severe depression at the time of the robbery. The basis for mitigating factor eleven was the risk that defendant may not continue to receive drug and psychological therapy at the same level while incarcerated and that defendant's public assistance would be terminated upon his incarceration. Based on this record, the court's application of the aggravated and mitigating factors is supported by competent credible evidence, and we therefore affirm his sentence. Cassady, supra, 198 N.J. at 180. Similarly, based on the facts of this case, a twelve-year sentence subject to NERA for armed robbery, a first-degree crime, does not shock the judicial conscience. The ten-year term requested by defendant would have been at the bottom of the applicable range. We find no abuse of discretion.