October 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD RAMON GARDNER A/K/A GARY EVANS, RICKY, IAN, J. ELIE AND RICHARD M. GARDNER,
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-08-0723.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Reisner and Hayden.
Defendant Richard Ramon Gardner appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy, N.J.S.A. 2C:5-2; fourth-degree theft, N.J.S.A. 2C:20-3; disorderly-persons simple assault, N.J.S.A. 2C:12-1a(3); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a. He also appeals from his aggregate sentence of eighteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirm the convictions, the eighteen-year NERA sentence imposed for robbery, and the concurrent sentence imposed for the certain persons offense. However, as the State concedes, the convictions for conspiracy, theft, assault, and possession of a weapon for an unlawful purpose must all be merged into the robbery conviction. Therefore, we remand for the limited purpose of correcting the judgment of conviction to reflect that merger.
This was the most pertinent trial evidence. Bruce Hanson testified that on May 3, 2006, he went to a house in Franklin Township, Gloucester County, occupied by the Eli family. The purpose of his visit was to retrieve a cell phone that he had given to Marcella Eli six months earlier, in exchange for drugs. While he was at the house, he pulled out a roll of cash and gave the Eli family's grandmother ten dollars to buy beer. He stayed at the house for a couple of hours, during which time defendant Richard Gardner was "in and out" of the premises. At the time, Hanson had met defendant once or twice, knew he was related to the Eli family, and believed his last name was also Eli.
Between 2:30 and 3:00 p.m., defendant left the Eli house and began walking toward Route 47. A car stopped and the driver, a woman later identified as Cynthia Corsey, offered him a ride, which he accepted. Omar Rhodes, whom Hanson did not know at the time, was in the front passenger seat. Richard Gardner was seated in the back behind Rhodes. Hanson got into the back seat behind the driver. As they were driving, Rhodes said that he needed to urinate, and Corsey turned the car into a local park where there was an outhouse. However, she drove past the outhouse and stopped the car. Rhodes got out of the car, walked around to the left passenger door and leaned against it, preventing Hanson from getting out of the car. At that point, Gardner asked, "You know what time it is?" He then punched Hanson in the forehead, pulled out a knife and held it to Hanson's throat, while demanding his money. Corsey also threatened Hanson with a box cutter. According to Hanson, they robbed him of $280, and then told him to get out of the car.
As the car drove away, Hanson was able to observe and memorize the license plate number. He ran over to three men who were fishing in a nearby lake, borrowed a cell phone from them, and called 9-1-1.*fn1 The tapes of that call and a subsequent return phone call from the police were played for the jury. At the trial, Hanson identified Gardner and Rhodes as the men involved in the robbery.
During his direct examination, Hanson admitted signing a statement given to him by Marcella Eli, Gardner's sister, in which Hanson asserted that he had mis-identified Gardner as one of the robbers. The sister in turn gave the statement to Gardner's attorney. Although the statement purported to be notarized, Hanson testified that he did not sign it in the presence of a notary. Without objection, he explained that he signed the paper because "I know what it's like to have a drug problem. I've been there." On re-direct examination, he further explained that he was very reluctant to testify because he had children that lived in "the same town" and testifying might "create an issue for them." Again, there was no objection.
Testifying for the State, Cynthia Corsey acknowledged that she was still a defendant in the case, facing a separate trial on charges of robbery and possession of a box cutter. She denied that the State had offered her any plea deal in return for her testimony. Corsey testified that at the time of the robbery, she was Rhodes' girlfriend but had only a passing acquaintance with Gardner. On the afternoon of May 3, 2006, Gardner called Rhodes to ask for a ride to his grandmother's house, and Corsey agreed to drive him in her car in return for gas money. When they arrived at the house, a barbecue was in progress. She saw Bruce Hanson in the back yard. As Corsey, Rhodes, and Gardner were driving away from the barbecue half an hour later, they saw Hanson walking down Delsea Drive, and at Gardner's suggestion they stopped and offered him a ride home. On the way, Rhodes asked her to stop so he could use the bathroom, and Corsey pulled into the park, near the "port-apotty."
After Rhodes got out of the car, Corsey heard a "tussle" going on in the back seat. Looking in the rearview mirror she saw Gardner holding Hanson in a headlock, and she heard Gardner say, "You know what time it is?" She then saw Gardner searching Hanson and telling him to empty his pockets. She did not see a knife, but saw that Gardner was holding something against Hanson's neck.
Corsey admitted she had a box cutter in her car, but denied holding it while Gardner was robbing Hanson. She also attempted to exonerate her boyfriend Rhodes, testifying that he was not holding the rear car door closed; rather, he was leaning against the car while urinating on the ground, because the port-a-potty was locked. On re-direct Corsey testified, without objection, that in testifying she was "putting [her]self at risk of things out on the street." She explained that "everybody knows that . . . there's a thing called snitching so that's my main concern." She did not specify which person or persons might believe she was a "snitch."
Defendant's counsel called Detective Kenneth Cresitelli, one of the investigators on the case, as a defense witness. Cresitelli took a recorded statement from Hanson on May 3, 2006, at about 8:45 p.m. The defense had not confronted Hanson with the taped statement during Hanson's cross-examination, thereby depriving Hanson of a chance to address any alleged inconsistent statements on the tape. See N.J.R.E. 613(b). Therefore, the judge ruled that the defense could introduce the tape through Cresitelli, and play it for the jury, but could not question the detective about the tape to highlight any alleged inconsistencies with Hanson's trial testimony. Nor would the judge allow the prosecutor to cross-examine Cresitelli about the statements made on the tape. The tape was not introduced in evidence, although we have been provided with a transcript.
On cross-examination, the prosecutor was permitted to question Cresitelli about other aspects of his investigation. He elicited testimony designed to establish that what Hanson told the police on May 3 was consistent with their later investigation results. That testimony included the fact that Corsey's car bore the license number that Hanson reported in the 9-1-1 call. The detective also confirmed that, on searching the car, he found it matched Hanson's description of the car's messy interior, and he found a box cutter in the vehicle. Without objection, the detective also testified to finding tire tracks in the park that appeared to match the tire treads on Corsey's car. And he identified a photo of Hanson's head, showing an injury, and a picture of the victim's sweat pants, which Hanson claimed Gardner tore up while searching for money. Although it was denominated "re-direct," both defense counsel were permitted to cross-examine Cresitelli on his testimony.
The defense also presented testimony from Richard Gardner's mother, Sylvaia Gardner. Sylvaia lived with her mother at the house Hanson claimed he visited on May 3 to retrieve his cell phone. Sylvaia testified that Hanson did not visit the house on May 3 to retrieve a cell phone but rather to purchase drugs, something he did frequently. She insisted that her mother, who had swollen legs and "doesn't really drive," did not buy beer for Hanson on that day. According to Sylvaia, defendant contacted her family before the trial and offered "not to come to court" if they would provide him with drugs, but they declined. On cross-examination, she admitted that she spent the afternoon of May 3, 2006 sitting outside her house under a tree, and she did not talk to Hanson at all that day. She conceded that she had no personal knowledge as to whether he asked someone at the house about a cell phone, and she did not see anyone using drugs at the house that day.
In his closing argument, the prosecutor argued that it was reasonable for Hanson to be afraid to come to court to confront the people who attacked him and to be afraid because his children live near the Eli house. He also candidly told the jury that Detective Cresitelli was not an expert, but was only testifying about his observations of the tire tracks.
Immediately after the jury returned its verdict on the robbery and related charges, the judge, without objection from defense counsel, conducted the trial on the certain persons charge, before the same jury. In that trial, the State introduced in evidence defendant's prior felony conviction and then rested. The judge properly charged the jury that it must "disregard completely your prior verdict and . . . consider anew . . . the evidence previously admitted on the possession of a weapon." He also charged them that defendant was entitled to a presumption of innocence and that the State was required to prove each element of the offense, "including the element of possession" beyond a reasonable doubt. He then charged the jury at length on the elements of the certain persons offense.
After thoroughly reviewing defendant's extensive criminal record, the judge imposed an aggregate term of eighteen years, subject to NERA, which was one year less than the nineteen years the State recommended.
II On this appeal, defendant raises the following points for our consideration:
POINT I: IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO ALLOW DET. CRESITELLI TO TESTIFY ON CROSS-EXAMINATION, OVER OBJECTION, ABOUT HIS INVESTIGATION AND ANALYSIS OF THE CRIME SCENE, WHEN THE ONLY TOPIC COVERED ON DIRECT WAS THE MAKING OF  MR. HANSON'S TAPED STATEMENT. THIS ERROR WAS COMPOUNDED BY DET. CRESITELLI'S QUASI-EXPERT TESTIMONY.
A. Det. Cresitelli's Testimony On Cross-Examination Was Almost Entirely Beyond The Scope Of The Direct. (Raised Below)
B. Det. Cresitelli Improperly Testified As An Expert Without Any Proffer Of Qualification. (Not Raised Below)
POINT II: THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)
A. The Prosecutor Improperly Questioned Both Mr. Hanson And Ms. Corsey About Their Fear Of Defendant And Then Improperly Commented On The Issue In His Summation.
B. The Prosecutor Improperly Testified In His Summation About Mr. Hanson's Affidavit Retracting His Claim That Defendant Had Robbed Him, And Denigrated Defendant's Character.
C. The Prosecutor Improperly Testified About The Statement Given By Cynthia Corsey.
D. The Prosecutor Engaged In Misconduct By Referring To Mr. Hanson's Assertion That He Filled Out The False Affidavit On Mr. Gardner's Behalf Because He Knew "What It Was Like To Have A Drug Habit."
POINT III: THE COURT MISHANDLED THE BIFURCATED TRIAL ON THE "CERTAIN PERSONS" CHARGE AND THE CONVICTION MUST BE REVERSED. (Not Raised Below)
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND THE JUDGE FAILED TO ORDER MERGER OF SEVERAL COUNTS INTO THE ROBBERY.
He raises this additional point in his supplemental pro se brief:
IT WAS ERROR FOR THE JUDGE TO ASSUME THE MEANING OF THE JURY'S NOTE, TO THE JUDGE DURING DELIBERATION.
As indicated earlier, we agree with the merger argument. Defendant's remaining appellate contentions are unpersuasive and, except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant first contends that the prosecutor was inappropriately permitted to cross-examine Detective Cresitelli on "matters wholly unrelated to direct examination." As defendant concedes, the trial court has discretion to determine the scope of cross-examination, and may "permit inquiry into additional matters as if on direct examination." N.J.R.E. 611 (b). Moreover, we will not interfere with the trial court's exercise of discretion, absent a showing of "clear error and prejudice." State v. Adames, 409 N.J. Super. 40, 61 (App. Div.) (citations omitted), certif. denied, 200 N.J. 504 (2009). In his appellate brief, defendant argues that the tape was introduced to show that Hanson's trial testimony was inconsistent with his initial statement to the police and that "both statements were lies." However, he contends that the prosecutor's cross-examination of the detective was unrelated to the subject matter on the taped statement. We cannot agree.
The prosecutor's cross-examination was pertinent to the direct examination, because it was designed to show that both Hanson's taped statement and his trial testimony were truthful. He did this by eliciting testimony demonstrating that Hanson's story was consistent with the forensic evidence the police obtained. Further, the trial court had discretion to control "the mode and order of interrogating witnesses" and, if not unfairly prejudicial to the defense, could have permitted the prosecutor to question the detective as if on direct examination, to avoid the undue consumption of time required to have him re-called as a rebuttal witness for the State. See N.J.R.E. 611(a). Defense counsel was given the opportunity to cross-examine Cresitelli, and defendant does not suggest that this procedure prejudiced the defense in any way. See Adames, supra, 409 N.J. Super. at 61-62.
Defendant's argument, that Cresitelli improperly gave expert testimony, is equally unpersuasive. He did not need to be an expert in order to testify about the comparison between the tire treads on Corsey's vehicle and the tire tracks found in the park. See State v. Harvey, 121 N.J. 407, 426-27 (1999). And the prosecutor did not present Cresitelli as an expert witness; to the contrary, he conceded before the jury that the detective was not an expert.
For the first time on appeal, defendant contends that the prosecutor committed various improprieties during the trial. "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. [Id. at 83-84 (citing State v. Ramseur, 106 N.J. 123, 323 (1987)).]
Having reviewed the trial record, we conclude that none of these allegations warrants reversal of defendant's conviction. The majority of the allegedly improper statements, questions, and testimony were unobjectionable. Neither Hanson nor Corsey testified specifically that they were afraid of retaliation by defendant. Corsey's testimony, in particular, could be understood to mean that she did not want to be known in the community as someone who was a "snitch." None of Hanson's testimony was aimed at showing that he was afraid based on anything other than defendant's alleged act of violence against him in this case.
The prosecutor properly asked Hanson to explain why he signed the written statement recanting his identification of Gardner. We agree that Hanson's comment, that he knew "what it was like to have a drug habit," might have been understood as implying that defendant was a drug addict. But the jury could instead have inferred that Hanson was referring to Marcella Eli as having a drug habit, since Hanson identified her as selling drugs, and she asked him to sign the statement. There was no objection to this testimony, and part of the defense strategy was to portray Hanson as a drug addict who came to defendant's house to buy drugs. In the context of this record, we cannot conclude that Hanson's testimony constituted plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Defendant's additional contentions do not warrant discussion here. R. 2:11-3(e)(2).
Defendant next argues that the trial judge should have specifically asked defense counsel "if [he] wished to present a case" on the certain persons charge. We find this unpersuasive. Defense counsel made no objection to the procedures the judge followed in conducting the certain persons trial. Having just vigorously defended his client on all of the other charges, counsel would certainly have made known if he had evidence to present in opposition to the certain persons charge.
Defendant also contends that the trial judge should have asked him if he wished to testify at the certain persons trial. We explained this issue in State v. Lopez, 417 N.J. Super. 34 (App. Div. 2010), certif. denied 205 N.J. 520 (2011).
When a criminal defendant is charged with both unlawful possession of a weapon and possession of a weapon by a convicted felon, the two charges must be tried separately because evidence of a prior criminal record, which is necessary for a certain persons conviction, would have the tendency to prejudice the jury in considering whether defendant unlawfully possessed a weapon.
Likewise, a defendant may decide not to testify in the unlawful possession trial to prevent the introduction of evidence of his prior criminal record. However, . . . a criminal defendant who declines to testify in the first trial might decide to testify in the second trial and has the right to do so.
A certain persons trial is not simply the continuation of the unlawful possession trial. The proceedings are two separate trials which may, but need not, be conducted before different juries. . . . . [A] waiver of the right to testify in the unlawful possession trial does not constitute a waiver of the right to testify in a later trial on a separate charge. [Id. at 40 (citations omitted).]
In Lopez, we reversed the defendant's conviction, because his trial counsel asked the judge if the defendant could testify at the certain persons trial and the judge responded that he would not be permitted to testify. Id. at 39-40. By contrast, in this case, there was no suggestion that defendant wanted to testify and the judge did not state or even hint that defendant would not be permitted to testify. We agree that, as in all criminal trials, it would have been the better practice to ask defendant if he wished to testify at the certain persons trial. See State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005). However, in the circumstances of this case, we find no basis to reverse the conviction because the trial judge failed to ask that question.
Finally, we find no abuse of discretion or other error in the eighteen-year NERA sentence imposed for the robbery. We note that this was defendant's second armed robbery conviction, and the judge appropriately considered the pertinent sentencing factors. We will not second-guess his decision concerning the length of the sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334 (1984).
We affirm the sentence imposed for the robbery and the concurrent sentence imposed for the certain persons offense. We vacate the sentences imposed for the remaining offenses, because those offenses merge into the robbery conviction. We remand for the limited purpose of correcting the judgment of conviction to reflect that merger.
Affirmed in part, remanded in part.