January 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARSENIO L. DIAZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-1782.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Messano and Yannotti.
Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). The judge merged all three counts and sentenced defendant to a ten-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant raises the following points on appeal:
THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERT TO TESTIFY BECAUSE THE STATE FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS IN THE COURT RULES
A. Detective DeLong's Fingerprint Testimony Was Expert Testimony Within The Purview Of Rule 702 Because It Was Based On Specialized Scientific And Technical Knowledge
B. DeLong's Testimony Was Not The Proper Subject Of Lay Testimony
C. Allowing DeLong To Present Expert Testimony In Spite Of The State's Discovery Failure Deprived Diaz Of His Right To Confrontation
D. DeLong's Testimony Exceeded The Scope Of The Facts In Evidence And Should Have Been Excluded Under N.J.R.E. 703
E. Allowing DeLong To Testify Was Prejudicial Error Requiring Reversal
F. The Court's Failure to Instruct The Jury On Expert Testimony Was Reversible Error
THE TRIAL COURT ERRONEOUSLY FOUND AGGRAVATING SENTENCING FACTORS THREE AND NINE WITHOUT ADEQUATE EVIDENTIARY SUPPORT IN THE RECORD. THIS COURT SHOULD VACATE AND REMAND FOR RESENTENCING
A. The Trial Court Failed To Set Forth A Proper Statement Of Reasons And Findings Of Fact In Support Of Its Sentencing Decision
B. There Is No Evidentiary Support In The Record For A Finding That Diaz Is Likely To Reoffend
C. There Is No Basis In The Record For Finding A Need For Deterrence As An Aggravating Factor
D. On Remand, Diaz Will Be Able To Argue That He Should Be Resentenced As A Second-Degree Offender.
In a pro se supplemental brief, defendant argues:
THE VERDICT FINDING THE DEFENDANT GUILTY SHOULD BE VACATED BECAUSE IT VIOLATED DEFENDANT'S RIGHTS TO A FAIR AND [IMPARTIAL] TRIAL REQUIRED BY THE 6TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY DUE PROCESS CLAUSE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We briefly recite some of the testimony presented at trial in order to place defendant's arguments regarding the testimony of New Brunswick police officer Frederick DeLong in the proper context.
On August 12, 2007, at approximately 3:00 a.m., Bernabe Rodriguez returned home after working at Los Amigos, a New Brunswick bar which he owned. Defendant approached and told Rodriguez he was "[j]ust the man [defendant] was looking for." Rodriguez had never seen defendant before. Defendant appeared intoxicated, and Rodriguez attempted to shake hands, but defendant rebuffed him and demanded money. Rodriguez said he had none, but defendant claimed that he had just seen Rodriguez at Los Amigos, where defendant was ejected by a bouncer. Defendant threatened Rodriguez with a knife.
Rodriguez's brother, Ramon, who lived with him, arrived at the scene and saw his brother "with his hands sort of up" engaged in a loud conversation with defendant, who was a stranger to Ramon. Ramon saw the knife and overheard defendant say that he had a gun in his car. Rodriguez also heard defendant say he was going to his car "to get a gun because there's two of you."
Although the brothers differed as to some specific details, both testified that as defendant turned and ran toward his car, they chased and grabbed him, causing him to drop his knife. They tackled him and Rodriguez called 9-1-1. Another 9-1-1 call was made by a nearby observer who reported that there was a knife fight ongoing in the street. Tape recordings of the calls were played for the jury.
Officer Michael Negvesky of the New Brunswick Police Department was dispatched to the scene. Negvesky testified that when he arrived, the Rodriguez brothers were holding defendant against a vehicle. The officer placed defendant under arrest and recovered a knife near a tree on Rodriguez's lawn.
Defendant testified on his own behalf. He lived across the street from Rodriguez. In late July, while drinking at Los Amigos, Rodriguez told bouncers to escort defendant out of the bar after he spilled his beer. Defendant claimed that he left without his change -- $90 -- and returned to Los Amigos one week later to retrieve his money. He was not permitted to enter the bar.
Defendant admitted he was "a little" drunk on the night in question when he confronted Rodriguez in an effort to reclaim his money. Rodriguez insulted him and called Ramon, who arrived with two knives and gave one to his brother. Defendant told the brothers to "forget about the change[,]" but Rodriguez called the police.
Defendant claimed his hand was cut when one of the brothers came at him with a knife. He also testified that he pointed out where the brothers had discarded their knives to the police. These claims were contrary to Negvesky's testimony and other evidence in the case.
During its case in chief, the State called DeLong as a witness. Without objection, he testified as to his training and experience in processing over 1200 crime scenes for fingerprint evidence. DeLong explained that it was difficult to obtain "usable" prints from some items, noting he had obtained only four usable fingerprints from "over a thousand" firearms he processed. DeLong also processed "hundreds" of knives.
At this point in the testimony, the prosecutor asked for a sidebar and the following colloquy occurred:
Prosecutor: It isn't my intent to offer him as an expert.*fn1
Since he's given so much training and experience, I'm going
to ask he be offered at least as . . . a fingerprint expert so he can
explain why there possibly were no prints on the knife, if he has an
Judge: You didn't give any kind of C.V. [(curriculum vitae)] . . ..
Defense counsel: No C.V. I object. But the call is yours, Judge.
Judge: As you said, if you were anticipating calling him as an expert, obviously you would have provided that information. My question is[,] nothing usable was found?
Prosecutor: Here's what I want him to explain. In your experience in processing knives like these -- like he said with the guns, processed over 1200 of them, maybe four he's gotten prints off of. Just explain that there were no prints on this knife. That's really it.
Judge: . . . I don't . . . know, and I'll ask you if there's an objection on that, that's not necessarily information . . . that you would need an expert for. So if there was an objection to him giving that testimony, that's one thing. But [it] seems to me that it's not necessarily even evidence that this --Prosecutor: I'm not going to ask for an opinion.
Judge: Right. What I'll do is because it wasn't set up as an expert, a C.V. wasn't given to the defense, I'm . . . going to . . . deny [the State's] application for having him qualified as an expert, continue with [him as a] fact witness, asking those questions.
Defense counsel lodged no further objection.
Before the jury, DeLong testified that he collected the knife from the crime scene but ultimately found no fingerprints on it. The prosecutor then asked, "Knives like these, in your experience and training, . . . is it often you recover prints on it [sic]?" After answering in the negative, DeLong was then asked to explain:
There's . . . three things that you really need. You need the person themselves. And that depends on . . . things like the condition of that person's fingerprints to start with, how much perspiration that's left on the item itself. It depends on the biological factors of the person as he's leaving the fingerprint. If his heart rate was up, if he was perspiring more than usual. Weather, the elements themselves, if it was cold or hot, making him sweat more. There's the item itself, which . . . in this case was the knife. It's made of a composite type material on the handle, which in itself isn't really a good conductive surface for the recovery of fingerprints.
Again, usually any success that I've had in the past in recovering fingerprints on weapons such as knifes have been . . . on the blade of the knife itself. Usually the more polished the surface is, the better the chance of retrieving a fingerprint.
However, it's also the nature in which that item was handled. Fingerprints are very fragile and very easy to destroy.
And then the third part of that is the actual conditions of the weather itself. . . . [S]unlight can damage the fingerprints, evaporate the perspiration from it. Things like given this time of night, if it's thrown on the grass and there's dew that's already collected on that grass. Depending on the temperature of the object itself. If the ambient air temperature outside is higher, it can cause condensation on some materials.
It's all these three things together that really determine if we are going to get a usable fingerprint.
Defendant lodged no objection during or after the testimony.
Defendant raises a number of specific arguments regarding DeLong's testimony, in particular, that it was expert testimony, not lay opinion testimony; the State violated its obligation under Rule 3:13-3(c)(9), thus depriving him of his right of confrontation; and DeLong's testimony was a net opinion, based upon facts not in evidence, and should have been excluded. Defendant also argues that the judge erroneously failed to provide any instruction on expert testimony in her jury charge.
The State counters by arguing that DeLong's testimony was properly admitted because it was based on his personal observations after recovering the knife from the crime scene and processing it himself; that, alternatively, DeLong was qualified as an expert in fingerprint analysis; and, in any event, the testimony was clearly not prejudicial since it supported the defendant's testimony that the knife recovered at the scene was not his.
Defendant's only objection at trial was premised on the State's failure to comply with Rule 3:13-3(c)(9). Therefore, as to the other arguments now raised on appeal, we review those claims under the plain error standard. See R. 2:10-2 (the error must be of "such . . . nature as to have been clearly capable of producing an unjust result").
We agree with defendant that most of DeLong's testimony was expert opinion and not otherwise admissible as lay opinion testimony. N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
Perception is "the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011). If based upon his perception, a lay witness is permitted to "give an opinion on matters of common knowledge and observation." State v. Bealor, 187 N.J. 574, 586 (2006) (emphasis added) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)) (internal quotation marks omitted).
In contrast, expert testimony is premised upon the witness possessing some "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue . . . ." N.J.R.E. 702. "Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so." McLean, supra, 205 N.J. at 449.
DeLong's testimony regarding the lack of fingerprints on the knife was clearly based upon his personal observations, but, that alone does not render it a lay opinion. The conclusion that the knife contained no usable fingerprint evidence required a level of expertise beyond the ken of the average juror. Moreover, the long explanation DeLong gave as to the factors affecting the recovery of fingerprint evidence was clearly expert testimony. See, e.g., State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995) (noting the officer "crossed over into the realm of expert testimony" when he "testified generally, based on his extensive experience").
However, the admission of DeLong's testimony does not compel reversal for two reasons. First, defendant never objected to the substance of the testimony, thus, depriving the judge of the opportunity to make an explicit ruling or otherwise limit the testimony when DeLong, and the prosecutor, went far afield of the original proffer. Second, we have no doubt that DeLong could have been properly qualified as an expert and thereafter could have rendered the same opinions. We have said that where "enough evidence was presented to qualify" a witness as an expert, a "trial court's error in failing to specifically qualify him as an expert [is] harmless." Ibid.*fn2
Defendant argues that because the State failed to identify DeLong as an expert witness as required by Rule 3:13-3(c)(9), his Sixth Amendment right to confront witnesses was violated.*fn3
That Rule requires that the State provide in discovery,
[The] names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. [Ibid.]
"The decision on whether to bar an expert's testimony under [the Rule] is left to the trial court's discretion." State v. Labrutto, 114 N.J. 187, 205 (1989) (citations omitted). "In exercising its discretion, the court may consider (1) whether the party who failed to disclose intended to mislead; and (2) whether the aggrieved party was surprised and would be prejudiced by the admission of expert testimony." State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 2011) (citations omitted). "'Prejudice' in this context refers not to the impact of the testimony itself, but the aggrieved party's inability to contest the testimony because of late notice." Ibid.
Here, the State provided notice that it was going to call DeLong as a witness, presumably eliminating any surprise regarding his testimony as to the actual recovery of the knife and the lack of fingerprints thereon. Indeed, as noted above, defendant never objected to the substance of DeLong's testimony at all, only that his "C.V." was not supplied in advance. The judge seemingly found that the prosecutor did not intentionally mislead defense counsel.
Nor do we see any prejudice. Defendant now claims that he could have rebutted DeLong's testimony explaining the lack of fingerprints on the knife by retaining his own expert. However, no such claim was made below, and defendant never sought an adjournment or continuance of the trial to address the issue.
Finally, for the first time on appeal, defendant argues that reversal is required because the jurors were "never told of their independent duty not to uncritically accept expert testimony." There was no objection to the charge at trial.
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . 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. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "poor candidate for rehabilitation under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979) (internal quotation marks omitted)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
While the judge did not provide the Model Jury Charge regarding expert testimony, she thoroughly advised the jurors of their obligations to consider all evidence and assess the credibility of all witnesses, as well as their singular role in judging the facts of the case. DeLong's testimony was not particularly emphasized by either attorney in summation. In short, the charge as given provided the jury with "sufficient guidance" and did not create any "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991). We affirm defendant's conviction.
Defendant argues that the judge misapplied the aggravating sentencing factors, erred by not finding certain mitigating factors, and mistakenly exercised her discretion by refusing to sentence him as a second-degree offender. See N.J.S.A. 2C:44-1(f)(2)(permitting the judge to "sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted" when "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands"). These arguments are not persuasive.
The judge found aggravating factors three (risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3)); and nine (need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9)). Defendant argues there was no evidence to support a finding that he is likely to re-offend and that the judge improperly relied on "conduct which constitutes the actual offense" in applying the factor. Defendant also argues that, because there was no "showing of some particularized need to deter [defendant] from future unlawful conduct," the judge erred in finding aggravating factor nine.
"[I]t cannot be disputed that aggravating factors (3) and (9) . . . can be based on assessment of a defendant beyond the mere fact of a prior conviction, or even in the absence of a prior conviction." State v. Thomas, 188 N.J. 137, 154 (2006). In finding factor three, the judge recounted defendant's conduct and "attitude," noting that he went to the victim's home, refused the victim's efforts to shake hands, and threatened victim with a knife while demanding money. Indeed, as the presentence investigation report noted, defendant's own version of the events, i.e., he wanted to reclaim his money, raised "grave" concerns about his conduct. The judge did not use the elements of the offense to justify her finding. See, e.g., State v. Kromphold, 162 N.J. 345, 353 (2000) (noting a "prohibition against using evidence both for sentencing purposes and to establish an element of an offense").
In determining whether there is a need to deter under factor nine, "[t]he higher the degree of the crime, . . . the more need for deterrence." State v. Megargel, 143 N.J. 484, 500 (1996). Given the serious nature of the offense, the judge's finding of aggravating factor nine was amply supported by the record. State v. Doss, 310 N.J. Super. 450, 461 (App. Div.), certif. denied, 155 N.J. 589 (1998).
The judge found mitigating factor seven. N.J.S.A. 2C:44-1(b)(7) (no prior criminal history). Defendant argues that the record supported a finding of two additional factors: three (defendant acted under strong provocation, N.J.S.A. 2C:44-1(b)(3)); and eight (defendant's conduct resulted from circumstances unlikely to recur (N.J.S.A. 2C:44-1(b)(8)). The judge considered both.
She found that three did not apply because defendant chose to go to Rodriguez's home, i.e., "[h]e took it upon himself to put himself in that position." In rejecting factor eight, the judge noted that based upon defendant's crime and his attitude, she would reach the "opposite" conclusion. State v. Bieniek, 200 N.J. 601, 609 (2010) ("It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision.").
An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" Bieniek, supra, 200 N.J. at 608 (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Ibid. accord State v. Cassady, 198 N.J. 165, 183-84 (2009). Here, the judge properly determined the aggravating and mitigating sentencing factors which were all amply supported by the record.
We briefly address defendant's other sentencing argument, i.e., that the judge erred in refusing to sentence him as a second-degree offender. Regarding a request made pursuant to N.J.S.A. 2C:44-1(f)(2), a court should apply a two-step process through which it "must be clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence." State v. L.V., 410 N.J. Super. 90, 109 (App. Div. 2009) (quoting Megargel, supra, 143 N.J. at 496 (internal quotation omitted)), certif. denied, 201 N.J. 156 (2010). "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Megargel, supra, 143 N.J. at 505.
Defendant committed a first-degree crime of violence. Although he had no prior criminal record, there was nothing compelling that justified sentencing him as a second-degree offender.