February 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-07-01042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2011
Before Judges Carchman, Baxter and Nugent.
Following a jury trial, defendant Charles Davis was convicted of second-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree theft from the person, N.J.S.A. 2C:20-2b(2)(d)*fn1 ;
third-degree receiving a stolen automobile, N.J.S.A. 2C:20-7; second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree hindering investigation, N.J.S.A. 2C:29-3(b)(4). The judge sentenced defendant to an aggregate extended term of twenty-six years' imprisonment with a fourteen-year period of parole ineligibility.
Prior to the commencement of the trial, the judge denied defendant's motions to suppress evidence as well as his motion to sever the various robbery and theft offenses. In addition, since another individual, Bilam Muslim, had previously entered a plea of guilty to the eluding offense, defendant asserted that defendant could not be found guilty of the same offense. The judge rejected that argument.
Defendant appeals from his judgment of conviction. We affirm.
These are the facts adduced at trial. On March 21, 2006, at approximately 1:45 p.m., Evelyn Schwartz was shopping at the Macy's department store in Menlo Park in Edison. Schwartz left Macy's and walked to her car, which was parked about 100 yards from the entrance. She unlocked and opened the driver's side door and placed her handbag on the front passenger's seat. Before she could close the door, defendant ran to the car, reached across Schwartz, and grabbed the handbag. Schwartz's hand became entangled in the strap of the bag, and she was pulled from the car, lacerating her wrists.
A Macy's employee, Thomas Thomas, drove into the parking lot and parked nearby just as Schwartz's purse was taken. He observed a young, black male in his 20's, approximately 5'11" with a thin build, pull Schwartz out of the car and drag her as she struggled. Thomas exited his car and stood next to his vehicle. Defendant walked past, entered a Honda Accord, and drove away. Thomas wrote down the license plate number, then assisted Schwartz.
The police responded, gathering matching descriptions of defendant from Schwartz and Thomas. The police investigated the license plate number and learned that the plate had been stolen.
Two days later, Evelyn Kentos was shopping at Shop-Rite in Edison. She exited the Shop-Rite and walked to her car, unlocked the driver's side door and walked around her minivan to open the passenger-side sliding door. Her purse was in the child's seat section of her shopping cart as she was unloading her groceries. Defendant drove his car in front of Kentos' car, blocking her exit. He ran from the car, grabbed Kentos' purse, ran to his vehicle and drove away.
The police were contacted, and upon arrival asked Kentos for a quick description of the suspect. She described the suspect as a "[b]lack male, approximately six foot, wearing a green sweat shirt, gold sweat shirt, green sweat pants and wool knit, like a knit cap." Kentos also told the police that the purse and its contents were worth approximately $260.
On April 11, 2006, at 4:15 p.m., a security officer at the Menlo Park Mall told a patrolling police officer that he had seen a person who matched the composite picture police had produced in the Schwartz robbery driving a red Honda Accord with an identified license plate number outside the Macy's parking lot. The police responded, but the Honda was gone when they arrived. The police ran a vehicle check and learned that the car had been reported as stolen from Piscataway the previous day.
Later that day, at approximately 5:45 p.m., Janet Tadduni was at the Shop-Rite in Edison. Tadduni exited the store and began unloading her groceries when she observed a red car with a spoiler. She then saw defendant exit the car and walk into the Shop-Rite. As she unloaded her groceries, she placed her purse in the child's seat section of her shopping cart. Defendant exited the Shop-Rite, dashed towards Tadduni, grabbed her purse, and ran away. Defendant entered the red car, but before he could drive away, Tadduni reached the vehicle and observed defendant. She banged on the window and roof and yelled at defendant to return her purse. Defendant grinned and drove away. Tadduni calculated the replacement cost of her purse and its contents at $1085.
Two days later, Edison Police Officer Alan Varady was on patrol on his motorcycle when he saw a red Honda Accord driving towards him. Varady read the license plate and identified the Honda as the stolen car seen two days earlier at the Menlo Park Mall. He also noted that defendant was driving the car. As he attempted to approach the car, defendant suddenly drove away towards an adjoining parking lot. Varady turned on his lights and siren and followed.
Finding no exit from the parking lot, defendant turned the car around and exited onto Route 1. As defendant pulled onto Route 1, he approached a red light and, as he attempted to squeeze between cars, side-swiped a car and continued on Route
1. Varady pursued defendant for approximately two miles at 50 m.p.h., when defendant increased his speed to 70 m.p.h. At Avenel Avenue, with at least three police officers in pursuit, including Detective Rigby, defendant encountered a red light, hopped onto the grass median, and struck a car.
As defendant continued north on Route 1, Rigby pulled next to the driver's side and could see defendant driving with a heavier black male in the passenger seat, later identified as Muslim. Defendant swerved into Rigby, forcing him to back off. After an overpass, a red light had caused a traffic backup, and defendant diverted into a Wal-Mart shopping center. Defendant drove into a field behind the store, through a fence, but became stuck attempting to cross some railroad tracks. Defendant and Muslim got out of the car and ran in opposite directions. Linden police, K-9 units and a state police helicopter joined the chase. Muslim was immediately apprehended, but defendant was discovered forty minutes later, hiding inside an abandoned refrigerator. Rigby estimated that he had pursued the Honda for 15 or 20 miles, reaching a high speed of 80 to 90 m.p.h.
Defendant was arrested, charged, tried and convicted of the previously mentioned offenses. This appeal followed.
On appeal, defendant raises the following issues:
THE TRIAL COURT'S REFUSAL TO SEVER THE COUNTS OF THE INDICTMENT DENIED DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9 AND 10. (NOT RAISED BELOW)
THE EVIDENCE THAT MR. MUSLIM HAD BEEN CONVICTED OF THE ELUDING CHARGE IN THIS CASE PRECLUDED THE STATE FROM PROVING BEYOND A REASONABLE DOUBT THAT MR. DAVIS WAS GUILTY OF THE ELUDING CHARGE.
THE EXCESSIVE 20-YEAR AGGREGATE SENTENCE, 14 YEARS WITHOUT PAROLE, WAS ACHIEVED BY IMPOSING INAPPROPRIATE CONSECUTIVE SENTENCES AND THE INDIVIDUAL SENTENCES FOR EACH OFFENSE WERE CALCULATED WITHOUT REFERENCE TO APPLICABLE MITIGATING FACTORS.
In a pro se brief, defendant raised these additional issues:
THE DEFENDANT WAS DENIED HIS RIGHT TO THE MIRANDA SAFEGUARDS AFFORDED UNDER THE STATE'S CONSTITUTION (1947) ARTICLE I par, 10. BECAUSE THE DEFENDANT WAS INTERROGATED THREE SEPARATE TIMES ON THE SAME SUBJECT, WHEREBY FAILING TO "SCRUPULOUSLY HONOR" THE DEFENDANT'S RIGHT TO REMAIN SILENT AND CUT OFF COMMUNICATIONS WITH THE INTERROGATORS. CONTRARY TO MIRANDA, 384 U.S. 86 S. Ct. (1966) (sic) AND ITS PROGENY.
WITHHOLDING OF RELEVANT AND PROBATIVE OUT OF COURT NON-IDENTIFICATION EVIDENCE VIOLATED DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
(A) WESTFIELD POLICE DEPARTMENT'S WITHHOLDING OF IDENTIFICATION EVIDENCE IN CONNECTION TO THE INCIDENTS DATED APRIL 10, 2006; (B) THE WILLFUL WITHHOLDING OF IDENTIFICATION EVIDENCE IN CONNECTION TO COUNT ONE OF THE INDICTMENT; (C) THE WILLFUL WITHHOLDING OF IDENTIFICATION EVIDENCE IN CONNECTION TO COUNT THREE OF THE INDICTMENT.
THE DENIAL OF THE DEFENDANT'S MOTION TO DISMISS WAS FUNDAMENTALLY UNFAIR.
Defendant first asserts that the judge erred in refusing to sever the various counts of the indictment. He claims that including all of the counts before the same jury would be unduly prejudicial. In denying the motion to sever, Judge Mulvihill stated:
[C]ounts one, two and three will be subject to [N.J.R.E.] 404(b) relevant material issue which is genuinely disputed as to identity, similar in kind. They are similar. The robbery and theft from person on March 21 to 23, April 11th, are all similar in kind. Close in time within days. March 21 to 23 and then to April 11 you're talking a span of three weeks and the evidence would have to be clear and convincing and the probative value not outweighed by prejudice to the defendant. The issue of identity is primary here.
All of these incidents happened in Edison. They all involved allegedly a black male in his 20's, 160 pounds, 5'11. Same kind of modus operandi for the robbery and theft from persons. Also there was a motor vehicle involved in those which goes to the receiving and goes into the eluding and, of course, the hindering has to do with false name which is part and parcel of the arrest.
I don't find that the probative value of the other crimes evidence [N.J.R.E.] 404(b) would be outweighed by apparent prejudice.
All of these offenses are within a period of time within 23 days, all in the same town, common plan, common scheme and identity and therefore the motion is denied.
We review a judge's decision whether to sever the counts of an indictment under the abuse of discretion standard. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
Rule 3:7-6 provides that multiple offenses may be charged in the same indictment if the offenses are of the same or similar character, are based on the same act or transaction or constitute parts of a common scheme or plan. However, Rule 3:15-2(b) permits the judge to grant severance if it appears defendant is prejudiced by a joinder of offenses. "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).
"If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Ibid. (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).
Preliminarily, the evidence must be relevant to an issue that is genuinely in dispute, and it must be necessary to prove the disputed issue. State v. Darby, 174 N.J. 509, 518 (2002); State v. Oliver, 133 N.J. 141, 151 (1993).
N.J.R.E. 404(b) provides that:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The Supreme Court has articulated a four-part test to determine if evidence of other crimes is admissible at trial:
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. Rose, 206 N.J. 141, 159-60 (2011) (quoting State v. Cofield, 127 N.J. 328, 338 (1992)).]
This test, derived from Cofield, protects against the significant danger that a jury may convict defendant for one crime based on evidence of other crimes because he is seen generally as a bad person. Rose, supra, 206 N.J. at 159 (citing Cofield, supra, 127 N.J. at 336).
Here, the trial judge, while relying on Rule 404(b), conducted a careful Cofield analysis.
The first prong of the analysis requires relevance and materiality, i.e. "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Rose, supra, 206 N.J. at 160 (quoting N.J.R.E. 401). This standard is a generous one. Ibid. "When an individual's state of mind is at issue, a greater breadth of evidence is allowed" because "mental state is not conducive to demonstration through direct evidence." State v. Williams, 190 N.J. 114, 124-25 (2007).
We need not address the second prong as that only applies to cases with fact patterns similar to Cofield, a case involving constructive drug possession where the issue of constructive possession was hotly contested. See Rose, supra, 206 N.J. at 160; Williams, supra, 190 N.J. at 131.
The third prong requires proof of other crimes by clear and convincing evidence, while the fourth prong requires that the probative value of the proffered evidence outweighs its apparent prejudice. The Court has recognized this prong as the most difficult to overcome. State v. Gillispie, 208 N.J. 59, 89 (2011). This prong is "more exacting than [N.J.R.E.] 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." Rose, supra, 206 N.J. at 161. The analysis requires a careful balancing of the competing interests. State v. Barden, 195 N.J. 375, 392 (2008). If other, less prejudicial, evidence can establish the same issue, the balance tips in favor of exclusion. Rose, supra, 206 N.J. at 161; Barden, supra, 195 N.J. at 392.
Here the Cofield factors were satisfied. The evidence of "other crimes" is relevant to the issue of identity, as all three of the purse thefts victims were only able to identify defendant by physical description. Second, all three purse thefts were similar. In all three offenses, defendant used a stolen car to escape. All three offenses occurred along Route 1 within a few miles of each other. In two of the offenses, the victim was an elderly woman, and in the third, the victim was with her elderly mother. Third, the trial court correctly noted that the evidence was clear and convincing. Finally, the trial judge was well within his discretion in determining that the probative value of the evidence of other crimes was greater than its prejudice. Affording the trial judge the "ample discretion" due in joinder decisions, Pitts, supra, 116 N.J. at 601, there was no abuse of discretion here.
Before addressing the additional issues raised in counsel's brief, we focus on the issues raised by defendant in his pro se filing.
Defendant first asserts that the trial judge erred in failing to suppress his statement. His claim is based on a vague suggestion that he "exercised his right to be identified by the accusers." We have difficulty discerning what specific right he is invoking. Judge Mulvihill found that:
[defendant] was given his Miranda*fn2 warnings; that he finally understood his Miranda warnings; that he gave a voluntary statement. He was not coerced, threatened, intimidated. He knew what was happening. He said he was playing a game with the police so he knew exactly what was going on and he gave a voluntary statement to the police. I find that beyond a reasonable doubt and the motion is denied.
The judge's findings were based on the facts adduced on the record, State v. Yohnnson, 204 N.J. 43, 62 (2010) ("credibility determinations are entitled to deference and . . . factual findings must be sustained as long as they are supported by sufficient, credible evidence in the record"), and defendant's argument as to this issue and the other issues raised in his supplemental brief are without merit. We perceive of no basis for our intervention.
Defendant also asserts that the judge erred in the imposition of sentence. The thrust of defendant's argument is that the imposition of consecutive sentences was inappropriate and the judge failed to consider relevant mitigating factors.
Our review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). In conducting the review of any sentence, we consider "whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the 'factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits our reviewing authority to those situations where the application of the facts to law has resulted in a clear error of judgment or a sentence that "shocks the judicial conscience." Ibid. (citing Roth, supra, 95 N.J. at 363-65). If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, we will not substitute our judgment for that of the trial court. Ibid.
At sentencing, Judge Mulvihill summarized the relevant facts related to the convictions:
[There were] very horrendous predatory acts on the part of this defendant to seek out these older people when they're going to the store, coming from a store, whether it be Macy's, whether it be a supermarket and just brazenly parking near where they are presumably with a stolen car and just going up and grabbing their purse from the shopping cart but in the one case he actually went into Mrs. Schwartz' car to grab that purse across the driver's body and whether he was pulling on that and it got caught on her or she resisted but she was pulled out, fell to the ground, was injured, had to walk back into Macy's. These victims who include Ms. Schwartz, Ms. Kentos, and Ms. Kentos she was a very fragile woman. She looked every day of her age of . . . 83. . . . .
So these people whenever they go to the store they go get a loaf of bread or a quart of milk, go to the shopping mall and they come out they're going to be remembering what happened to them, what [defendant] did to them. They're going to be unduly alarmed when that happens so this is going to affect them. Let's see, Mrs. Schwartz said a terrible experience for her. . . . And she said she felt very violated when [defendant] climbed into her car.
The "paramount" goal of the New Jersey Code of Criminal Justice is "uniformity in sentencing." Blackmon, supra, 202 N.J. at 296 (citing State v. Kromphold, 162 N.J. 345, 352 (2000)). See also State v. Bieniek, 200 N.J. 601, 607 (2010). The goal of uniformity is "'achieved through the careful application of statutory aggravating and mitigating factors.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Cassady, 198 N.J. 165, 179-80 (2009)).
"In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
Furthermore, subject to certain conditions, multiple sentences imposed for more than one offense "shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5a. The imposition of consecutive sentences must be justified by the criteria set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985). See also State v. Hannigan, 408 N.J. Super. 388, 393 (App. Div. 2009). The judge must state on the record whether:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous; [Yarbough, supra, 100 N.J. at 644 (footnote omitted).]
Here, defendant argues that mitigating factors one and two should have been considered by the court. Mitigating factor one, that defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1b(1), was properly rejected. Defendant argues that the robberies "were less serious and involved less danger than most." However, the court's finding that serious harm did occur is supported by substantial and credible evidence in the record. When defendant reached into Ms. Schwartz's car, he literally dragged her, a 75-year-old woman, from the car, lacerating her wrists. Similarly, mitigating factor two, that defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1b(2), was also appropriately disregarded. There is no question that defendant was aware that he would be robbing these victims. Although defendant argues that he did not "display either intentional or gratuitous violence," gratuitous violence is not required to find serious harm. In sum, the judge properly relied upon evidence in the record in rejecting mitigating factors one and two.
As to the consecutive sentences, defendant argues that the determination not to sever the counts precludes finding that the counts should be sentenced consecutively. However, the Yarbough factors are clearly distinct from a Cofield analysis. The first Yarbough factor favors concurrent sentences, as defendant's objectives in committing these crimes were largely identical: pecuniary gain. The second factor weighs in favor of consecutive sentences, as each robbery was a separate act or threat of violence. The third factor, which considers spatial and temporal similarity, is most similar to the N.J.R.E. 404(b) analysis, but in this context supports consecutive sentences. Although the crimes all occurred near Route 1, and within several weeks of each other, "a single period of aberrant behavior," Yarbough, supra, 100 N.J. at 644, implies a much closer relationship than the facts here indicate. Additionally, each crime involved a separate victim, factor four, and supports consecutive sentences. Finally, the imposed crimes were not so numerous, factor five, as to make consecutive sentencing unjust.
Judge Mulvihill did not abuse his discretion in concluding that the crimes were separate and distinct under Yarbough.
Finally, defendant raises an argument as to the impact of Muslim's prior plea to the eluding charge, the same charge that was pressed against defendant and resulted in a conviction. The State concedes that the eluding charge is personal to a single individual and only one person can be convicted of the offense.
While we find the issue troublesome, we do not see it as a basis for overturning defendant's conviction as to that offense. In fact, at trial, Muslim was called as a defense witness. He claimed that he was driving the vehicle that resulted in the police chase and, ultimately, the eluding charge.
He, too, was charged with eluding, and prior to defendant's trial, Muslim entered a plea to eluding. While we have not been provided a copy of the transcript of Muslim's plea, he indicated at defendant's trial that he informed the plea judge that he was driving the vehicle. The plea was entered, and Muslim was sentenced.
Clearly, the jury gave little credit to Muslim's testimony as the jurors convicted defendant of eluding. We are concerned, however, about the process and procedure here.
The State concedes that only one defendant can be convicted of eluding, and the State cannot seek the conviction of both Muslim and defendant for this offense. Moreover, the State agrees that the offense, under the facts presented here, is not susceptible to accomplice liability. Since, at trial, the State chose to proceed against defendant on the eluding charge, even after Muslim had plead guilty to the offense and had been sentenced, Muslim's conviction may be subject to collateral attack. We need not address that issue on defendant's appeal; however, we refer this matter to the attention of both the prosecutor and public defender to pursue such action as may be appropriate.