September 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID L. BAKER, A/K/A DANIEL LAMAR BAKER, TERRANCE L. POWELL,
DARYL L. SMITH, SMITH PRICE, DARELL GRAHAM, TERRENCE BROWN, TERRANCE BROWN, DAVID BROWN, DWAYNE BAKER, ANTHONY MUSE, DARREN POWELL, RODNEY PRICE, SEAN PRINCE AND TERRENCE SMITH, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 6, 2011
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 WAS IN CUSTODY AND WITHOUT A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT.
POINT III: DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND THE COURT IMPROPERLY BALANCED AGGRAVATING AND MITIGATING FACTORS AS REQUIRED BY LAW.
We are not persuaded that defendant's arguments warrant a reversal or modification of the judgment of conviction and sentence.
First, defendant argues that the out-of-court identification made by Johnson was unduly and impermissibly suggestive. Defendant asks us to adopt a new framework for assessing the admissibility of identification evidence rather than the current Manson/Madison*fn3 standard.*fn4 The Supreme Court considered that question in State v. Herrera, 187 N.J. 493, 504 (2006) and State v. Adams, 194 N.J. 186, 201 (2008), and declined to address the issue because the defendant had not presented "current research" in support of his request to the trial court.
Judge LeBon scheduled a Wade hearing in order to examine the facts of the robbery and the subsequent showup, and to apply those facts to the elements of the "totality of the circumstances" test. The judge ultimately determined that, although suggestive, the showup did not produce an unreliable out-of-court identification. We agree.
Principles of due process prohibit the use of identification evidence gathered by means "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). New Jersey has "consistently followed the United States Supreme Court's analysis in determining the admissibility of out-of-court and in-court identifications." Herrera, supra, 187 N.J. at 504; see Adams, supra, 194 N.J. at 201. Thus, the admissibility of identification evidence in New Jersey courts is governed by the two-pronged test of Manson.
Under the Manson test, the court must first "ascertain whether the identification was impermissibly suggestive[.]" Herrera, supra, 187 N.J. at 503. The first prong asks "'whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" Adams, supra, 194 N.J. at 203 (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Under the second prong, the court determines "whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification." Ibid. (quoting State v. Romero, 191 N.J. 59, 76 (2007)). Reliability is the "linchpin" of this inquiry. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Adams, supra, 194 N.J. at 204.
Five factors set forth by the Court in Manson guide the trial court's discretion in determining reliability: (1) the witness's opportunity to observe the perpetrator at the time of the crime; (2) the degree to which the witness was paying attention to the perpetrator; (3) the accuracy of the witness's past descriptions of the perpetrator; (4) the witness's certainty in identifying defendant as the perpetrator at the time of the identification; (5) the amount of time elapsed between the crime and the identification. Adams, supra, 194 N.J. at 204. "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Ibid.
The due process guarantees of the federal and state constitutions do not require that evidence of an out-of-court identification made at a showup be automatically excluded:
So-called "show up" or one-on-one identifications made within a reasonably short time at the scene of the crime are permissible under the Wade doctrine. As stated by our Supreme Court in State v. Wilkerson, 60 N.J. 452, 461 (1972), on or near-the-scene identifications have generally been supported on three grounds. They are likely to be accurate, taking place, as they do, before memory has faded.
They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent. [State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003).]
If pretrial out-of-court identification procedures have been deemed impermissibly suggestive, the State must prove by clear and convincing evidence that a subsequent in-court identification has a "source independent of the police-conducted identification procedures." Madison, supra, 109 N.J. at 245. The general rule is that [i]f . . . the out-of-court procedures were so impermissibly suggestive as to fix in the victim's mind an identity probably based upon photographs rather than upon an independent mental picture of the person gained from observations of him at the time of commission of the crime, the in-court identification should be excluded. [Id. at 242-43 (quoting State v. Thompson, 59 N.J. 396, 418-19 (1971)) (second alteration in original).]
The Court has recognized that "'one-on-one showups are inherently suggestive' and . . . 'only a little more is required in a showup to tip the scale toward impermissibly suggestive.'" Romero, supra, 191 N.J. at 76-77 (quoting Herrera, supra, 187 N.J. at 504). "[N]evertheless 'standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step.' Each showup setting must necessarily stand or fall on its own unique facts." Id. at 77.
"[A] trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451). Thus, the trial court's findings on the reliability of identification evidence "should not be disturbed if there is sufficient credible evidence in the record to support the findings." Ibid.
In the present case, the evidence adduced at the Wade hearing supports Judge LeBon's findings that Johnson's identification was reliable. Johnson had ample opportunity to view the defendant at the time of the crime, and Johnson had seen defendant before. Defendant walked within close proximity of defendant, and they brushed each other's shoulders at one point. Johnson followed defendant from the store to keep track of him. Johnson gave an accurate description of defendant's physical appearance and clothing before defendant was arrested. Upon viewing defendant in the patrol car approximately twenty minutes after the encounter at the store, Johnson immediately recognized him with "100 percent" certainty that he was the man who took the merchandise from the store and threatened him with a knife. Under those circumstances, we conclude the trial court did not err in determining the eyewitness identification was reliable despite its suggestiveness.
Additionally, we note that at trial, the jury viewed the store surveillance video showing defendant leaving the store. The jury was specifically instructed by Judge LeBon that:
It is your function to determine whether the witness's identification of the defendant is reliable and believable or whether it is based on a mistake or for any reason is not worthy of belief.
You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged. You should consider the observations and perception on which the identification was based and the circumstances under which the identification was made.. . . .
The ultimate issues of the trustworthiness of both the in-court and out-of-court identifications are for you to decide.
This provided the added safeguard that the jury was able to make its credibility assessments and disregard Johnson's identification if necessary.
We next address defendant's contention that his pre-Miranda statement about his possession of a knife should have been excluded because it does not fall into the public safety exception. On this record, we conclude there "is sufficient credible evidence in the record to support the findings" of Judge LeBon. Adams, supra, 194 N.J. at 203.
At the Miranda hearing, Officer Unley testified that once he encountered the fleeing defendant, he ordered defendant to stop and lie on the ground. After the officer repeatedly ordered this, defendant ultimately complied. Officer Unley then testified that as he placed handcuffs on defendant, he asked defendant whether "he had a knife on him." Though no knife was found on defendant, Officer Unley stated that he had suspicion that defendant had a knife because of Johnson's statements that defendant had threatened him with a knife.
In State v. O'Neal, 190 N.J. 601, 616 (2007), the Supreme Court provided guidance concerning the safety exception to Miranda. That exception "is based on the 'objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.'" Id. at 616-17 (quoting New York v. Quarles, 467 U.S. 649, 659 n.8, 104 S. Ct. 2626, 2633, 81 L. Ed. 2d 550, 559 (1984)). The exception is narrow and is "'circumscribed by the exigency which justifies it.'" Id. at 617 (quoting Quarles, supra, 467 U.S. at 658, 104 S. Ct. at 2633, 81 L. Ed. 2d at 559). The core principle supporting the public safety exception is that the exigency of a threat to safety outweighs the need for the "prophylactic" benefit of Miranda. Quarles, supra, 467 U.S. at 657, 104 S. Ct. at 2633, 81 L. Ed. 2d at 559.
In the present case Judge LeBon ruled that defendant's answer regarding the ownership of the knife was admissible under the "public safety exception." She reasoned:
[W]hat we have here is a suspect who has been captured by the police, having been identified by the victim as having had a knife, and when he's searched the knife isn't there. And it -- I'm satisfied that the will -- it's clear to me that that satisfies the objectively reasonable need to protect the police or the public from this weapon. And there were a lot of people milling around. I don't remember the exact number that Officer Unley said, but there certainly was a large number. It was a summer night. He said there were 20 to 30 people around, anywhere from young kids to middle age. It was a summer night. It was around 9:00, so although it wasn't completely light or completely dark there certainly were people around. And the police always need to be concerned about keeping weapons out of the hands of young children, keeping them out of the public.
And if, in fact, there were a knife there that was not on Mr. Baker's person, there could be some immediate danger associated directly with this weapon.
In arguing the public safety exception does not apply here, defendant
relies on State v. Stephenson, 350 N.J. Super. 517 (App. Div. 2002),
where we declined to invoke that exception. Id. at 524-25. There, the
police received a report that the defendant had threatened to shoot a
person. Id. at 520. The
police proceeded to the defendant's motel, handcuffed him, and
demanded information about where the gun was located. Ibid. We found
that the circumstances were not immediate and the gun was not believed
to be concealed in a public area, with unrestricted access to it by
third parties. Id. at 524. We explained that the Quarles*fn5
exigency exception applies only where the circumstances
indicate "(1) there [is] an objectively reasonable need to protect the
police or the public; (2) from an immediate danger; (3) associated
with a weapon; and that (4) the questions asked were related to that
danger and reasonably necessary to secure public safety." Stephenson,
supra, 350 N.J. Super. at 525 (quoting State v. Prim, 730 N.E.2d 455,
463 (Ohio App. 1999)).
Here, we agree with the trial judge that the circumstances, unlike the circumstances of Stephenson, are such that the Quarles exigency exception applies. As Officer Unley placed handcuffs on defendant he asked if defendant had a knife on him. Although a knife was never found, at the time of defendant's apprehension, there were twenty to thirty people, including children, near the location of the arrest. Given that Johnson had reported to Officer Unley that the suspect/defendant had lunged towards him with a knife in a threatening manner and that defendant attempted to flee from Officer Unley as well as disregarded his commands, a justifiable safety concern was present.
Finally, defendant argues that his sentence was excessive. "[W]hen reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). The sentencing judge's determinations are reviewed with an abuse of discretion standard. See, e.g., State v. Bauman, 298 N.J. Super. 176, 211 (App. Div. 1997). Under the Criminal Code, the "unfettered sentencing discretion" of pre-code law has been replaced with "a structured discretion designed to foster less arbitrary and more equal sentences." State v. Roth, 95 N.J. 334, 345 (1984). Thus, we, as a reviewing court, must make sure that the sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on competent, credible evidence, and decide whether application of the guidelines makes a particular sentence clearly unreasonable. Id. at 364-65.
Defendant points out that count one, robbery, a first-degree crime, permits a range of possible sentencing between ten and twenty years. N.J.S.A. 2C:43-6(a). Since defendant was sentenced to a thirteen-year term, defendant argues that it was above the minimum and an abuse of the trial court's sentencing discretion.
In sentencing defendant, the trial judge applied aggravating factors three ("risk that the defendant will commit another offense"); six ("extent of the defendant's prior criminal record and the seriousness of the offenses"); and nine (need for deterrence). N.J.S.A. 2C:44-1(a). The trial judge imposed mitigating factor number one ("defendant's conduct neither caused nor threatened serious harm"). N.J.S.A. 2C:44-1(d). The judge applied the factors and concluded that "when I look at the aggravating factors they overwhelmingly outweigh any of the mitigating factors. And that's why you're not getting the sentence to the lowest range, which is ten years."
On this record, the aggravating factors were supported by competent and credible evidence in the record. As the trial court explained, defendant has four prior convictions and eleven municipal convictions. The risk of re-offense is clearly high, and we agree defendant should be deterred from committing another offense. While Judge LeBon considered that no serious harm was caused by defendant in applying mitigating factor one, we do not find defendant's sentence was unreasonable. In no way does it shock the conscience of the court.