On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0596.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2011 -
Before Judges Fuentes, Ashrafi and Nugent.
Throughout an afternoon, evening, and early morning in June 2006, defendant Robert Souvenier subjected his former girlfriend and her disabled cousin to an ordeal during which he beat, terrorized, and repeatedly threatened to kill them. For that conduct, a jury convicted defendant of multiple offenses and a judge sentenced him to an aggregate prison term of twenty-nine and one-half years with eight years of parole ineligibility. In this appeal, defendant argues that five errors occurred during the course of his trial; errors that considered separately or cumulatively require reversal of his conviction. Defendant also argues that three sentencing errors require that he be re-sentenced. Specifically, defendant raises the following points:
IMPROPER REFERENCES TO DEFENDANT'S POST[-]ARREST SILENCE VIOLATED MR. SOUVENIER'S RIGHT AGAINST SELF-INCRIMINATION (Not raised below)
THE ADMISSION OF TESTIMONY REGARDING ALLEGED THIEVERY BY DEFENDANT WAS ERROR AND NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS
THE RE-DIRECT QUESTIONING OF DETECTIVE BROWNLEE BY THE PROSECUTOR WAS IMPROPER AND DENIED DEFENDANT A FAIR TRIAL (Partially raised below)
THE ADMISSION OF IMPROPER HEARSAY EVIDENCE DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT OF CONFRONTATION (Not raised below)
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY BY REFUSING TO ALLOW DEFENDANT AN OPPORTUNITY TO DECIDE OVERNIGHT WHETHER TO WAIVE HIS RIGHT TO TESTIFY
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE OFFENSE OF TERRORISTIC THREATS WITH AGGRAVATED ASSAULT WITH A DEADLY WEAPON AND THE WEAPON OFFENSES (Not raised below)
THE RESTITUTION ORDER ENTERED BY THE COURT MUST BE VACATED (Not raised below)
THE EXTENDED TERM SENTENCE IMPOSED UPON MR. SOUVENIER OF 29 1/2 YEARS WITH 8 YEARS OF PAROLE INELIGIBILITY MUST BE MODIFIED AND REDUCED (Not raised below)
THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL (Not raised below)
Having considered defendant's arguments, the record, and the applicable law, we conclude that none of the alleged trial errors were clearly capable of causing an unjust verdict. Nor do we find that the trial court abused its sentencing discretion. We conclude however, that defendant's conviction on a weapons charge for which he was sentenced to a concurrent prison term should have been merged. We therefore reverse defendant's sentence on that charge only, and affirm in all other respects.
The State developed the following proofs at trial. On June 7, 2006, at 2:00 p.m., Mary Johnson left her job at an Atlantic City casino and drove defendant, her ex-boyfriend, to her Pleasantville apartment. Johnson lived with her daughter, who was not at home, and her cousin, John Moultrie, who suffered from a disability. While defendant was reading in the living room, Johnson went into the room to look for a chain her mother had given her. Johnson was concerned about the chain "because [defendant] steal[s] a lot of my jewelry." The chain was missing. Johnson confronted defendant, who denied taking the chain. When Johnson persisted, defendant said, "Now you're going to get what you're going to get," and became violent. He punched Johnson in the face and kicked her in the ribs, head, and other parts of her body.
While defendant was beating Johnson he threatened to kill her, telling her that she was "going out in a body bag." Defendant tore the telephone off of the wall and broke two cell phones. When Johnson grabbed another phone to call 9-1-1, defendant kicked her in the face and took the phone. Johnson attempted to get a knife but defendant took it, threw her on a bed, choked her, cut her hands, and continued to beat her.
Moultrie tried to help Johnson by jumping on defendant's back and grasping at the knife. In response, defendant grabbed a blackjack, struck Moultrie repeatedly on the head and body, and threatened to kill him. Defendant then told Johnson and Moultrie to undress and lay naked on the bed so that when they were dead he could tell authorities he did it because he caught them in bed together. Next, defendant threw Johnson into the bathroom where he continued to assault her, breaking one of her ribs. When Moultrie tried again to protect Johnson, defendant attempted to stab him, but Moultrie's belt prevented the knife from penetrating.
Defendant eventually relented and told Johnson and Moultrie to dress so that he could take them to the hospital. He took money and Johnson's car keys, ordered Johnson and Moultrie to go to Johnson's Jeep, and threatened to cut them with the knife if they said anything. Defendant drove to AtlantiCare Regional Medical Center and told them to get out. Moultrie went into the emergency room, but when Johnson tried to grab the keys and run defendant grabbed her by her hair, pulled her back into the Jeep, and drove off.
Defendant drove to Philadelphia at speeds approaching ninety miles per hour, threatening to kill himself and Johnson by driving into a wall. In Philadelphia they stopped at Johnson's sister's house but she was not there. Later, defendant purchased and smoked some marijuana, and forced Johnson to smoke as well. They returned to New Jersey, picked up Johnson's friend, Pamela Roberts, then drove to Shore Memorial Hospital where Johnson was treated. Defendant, who drove away in Johnson's Jeep, was later arrested at a Pleasantville bus station.
Law enforcement officers became involved after Moultrie reported the incident upon his admission to the hospital. Responding to a police dispatch, Pleasantville Detective-Sergeant Danny Adcock went to Johnson's apartment. When he arrived, uniformed officers told him "they [had] spoke[n] to several neighbors in the area and [had] received information that there had been some sort of altercation in the apartment, some noise[.]" Several neighbors reported hearing a "physical altercation" and one neighbor had seen Johnson arguing with a male outside of the apartment near a Jeep. After the other officers entered the apartment, Adcock went to AtlantiCare Regional Medical Center to interview Moultrie. Following the interview, Adcock returned to police headquarters where defendant had been detained after his arrest. At trial, when asked by defense counsel whether he spoke to defendant, Adcock responded, "I asked if he wanted to make a statement and he said no."
Adcock was not the only witness to refer to defendant's post-arrest silence. Pleasantville Detective Adam Brownlee had briefly interviewed Johnson at Shore Memorial Hospital. While en route to the hospital, he received information that other officers had arrested defendant. After interviewing Johnson, Brownlee testified that he returned to police headquarters where Adcock had "attempted to speak with the suspect . . . and there was no statement taken, . . . [so] we made [the] decision to file the appropriate charges for this case."
On March 15, 2007, an Atlantic County grand jury indicted defendant and charged him with twenty-four crimes. For taking Johnson's Jeep after threatening his victims, defendant was charged with first degree carjacking, N.J.S.A. 2C:15-2a(3) (count sixteen); third degree theft of a motor vehicle, N.J.S.A. 2C:20-3 (count seventeen); and fourth degree joyriding, N.J.S.A. 2C:20-10(d) (count eighteen). For his offenses against Johnson, defendant was charged with two counts of first degree kidnapping, N.J.S.A. 2C:13-1b (counts twenty and twenty-two); first degree robbery, N.J.S.A. 2C:15-1 (count fifteen); third degree and fourth degree aggravated assault, respectively N.J.S.A. 2C:12-1b(2) and (3) (counts two and eleven); third degree terroristic threats, N.J.S.A. 2C:12-3b (count four); and third degree criminal restraint, N.J.S.A. 2C:13-2 (count thirteen).
For his offenses against Moultrie, defendant was charged with two counts of first degree kidnapping, N.J.S.A. 2C:13-1b (counts nineteen and twenty-one); first degree robbery, N.J.S.A. 2C:15-1 (count fourteen); third degree and fourth degree aggravated assault, respectively N.J.S.A. 2C:12-1b(2) and (3) (counts one and ten); third degree terroristic threats, N.J.S.A. ...