On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1087.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
On October 2, 2008, a Burlington County Grand Jury returned Indictment Number 08-10-1087, charging defendant David L. Baker with first-degree robbery, N.J.S.A. 2C:15-1(a) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(2) (count four); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1(a) (count five). Wade*fn1 and Miranda*fn2 hearings were held before Judge Patricia R. LeBon on July 20 and July 21, respectively. Judge LeBon ruled in the State's favor on both issues.
After a two-day jury trial, defendant was found guilty of first-degree robbery (count one) and fourth-degree obstruction of justice (count five). The jury found defendant not guilty of third-degree possession of a weapon for an unlawful purpose and fourth-degree possession of a weapon. The fourth-degree hindering apprehension charge was dismissed on defendant's motion at the end of the State's case.
The State moved for a discretionary extended term sentence which was denied. On count one, the court sentenced defendant to a thirteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count five, the court imposed an eighteen-month term to run concurrent with the sentence on count one.
The evidence at trial revealed that on July 14, 2008, Ryan Johnson, the manager at Big Lots in Edgewater Park, was working when he observed defendant carrying two cordless drill sets and two backpacks filled with items belonging to the store. Johnson recognized defendant from coming into the store in the past. As defendant walked past Johnson towards the exit, their shoulders brushed. Johnson stated to defendant, "the registers are that way," but defendant continued towards the exit. Johnson directed defendant to stop and defendant replied that there were "people outside," presumably to intimidate Johnson so he would not follow him. Defendant walked out with the merchandise, and Johnson followed, simultaneously calling the police. The store surveillance video recorded the incident.
Johnson attempted to keep defendant in his sight until the police arrived. He observed defendant walk towards a nearby apartment complex. Johnson then observed defendant flee from the back of the building. Johnson ran after him. When Johnson turned a corner by one of the buildings, he saw defendant fifteen feet away from him. Defendant dropped the stolen merchandise and warned Johnson not to follow him because he had a knife. Johnson testified that defendant then pulled a knife and lunged towards him, stating "I told you I was going to get mine or you're going to get yours."
Marco Suarez, a resident of the apartment complex, observed defendant running through the complex with four or five people following. Suarez observed defendant proceed into Apartment 35, where a friend of Suarez lived.
Meanwhile, Officers Michelle Ent and Michael Unley of the Edgewater Park Police Department arrived at the apartment building. Johnson gave the officer a description of defendant as an African-American male between the ages of thirty and forty, six-feet tall, wearing a black short-sleeved shirt and black jeans. The officers patrolled the area. Officer Ent then encountered several people who were shouting and pointing towards the area of Apartments 33 and 35. Defendant was standing on the steps in front of Apartment 34. Officer Ent approached defendant and requested that he speak with her. He responded "It's not me that you're looking for. It's not me." After Officer Ent told defendant she would like to ask him some questions, he put his fists up in a fighting stance and backed away. Officer Ent stepped towards defendant, and he started to run. The officer grabbed defendant's arms, but defendant pulled away and fled. Officer Ent chased after him but lost sight of him.
Defendant unwittingly ran towards Officer Unley, who chased and eventually grabbed defendant's shirt sleeve. Officer Unley repeatedly ordered defendant to get down on the ground. After an initial resistance, defendant complied. As Officer Unley handcuffed defendant, he asked him whether he had a weapon in his possession. Defendant replied that he had a knife, but it was for work-related purposes. Officer Unley searched defendant for the knife but did not find one. Officer Ent placed defendant in the rear of her patrol car and drove him to Big Lots. Officer Unley also came to the store and told Johnson they had apprehended a suspect matching the description Johnson had given. Officer Unley asked Johnson to look inside the vehicle to see if he recognized defendant. Johnson looked inside and identified defendant as the perpetrator "100 percent." In addition, at trial, the jury viewed the store surveillance video showing the robbery take place at a Big Lots store, and it obviously concluded that defendant had been reliably identified.
Based on the jury verdict, the court entered the judgment of conviction from which defendant has filed this appeal. Defendant presents the following issues for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE PRETRIAL SHOWUP IDENTIFICATION AS IT WAS IMPERMISSIBLY SUGGESTIVE AND NOT OTHERWISE JUSTIFIED BY EXIGENT CIRCUMSTANCES AND THUS VIOLATED DEFENDANT'S DUE PROCESS RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS. POINT II: THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO INTRODUCE A STATEMENT BY DEFENDANT REGARDING HIS POSSESSION OF A KNIFE SINCE THE STATEMENT WAS MADE WHILE HE ...