May 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK WINFRED ROBINSON A/K/A KEVIN DAVIS, FREDDY W. ROBINSON, JAMIL, NEW YORK, FREDERICK ROBINSON AND FREDRICK ROBINSON AND CLYDE ANTHONY HEATH A/K/A HEATH BOWEN, CLYDE HEATH AND CLYDE BOWENS, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1237.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-5242-09T2) and Submitted (A-5394-09T2) March 27, 2012
Before Judges Reisner, Simonelli and Hayden.
Defendants Frederick Winfred Robinson and Clyde Anthony Heath were tried together on charges arising from a home invasion robbery. A jury convicted Heath of third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2; conspiracy to commit third-degree burglary, N.J.S.A. 2C:5-2; second-degree robbery, N.J.S.A. 2C:15-1; and second degree burglary, N.J.S.A. 2C:18-2. The jury convicted Robinson of third-degree conspiracy to commit theft; conspiracy to commit third-degree burglary; robbery; third-degree burglary; and fraudulent use of a credit card, N.J.S.A. 2C:21-6h.*fn1
Heath was sentenced to an aggregate term of twenty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Robinson received the same aggregate twenty-year NERA sentence, plus a consecutive sentence for the credit card fraud, consisting of five years with a two-and-one-half year parole bar. Both defendants appealed from their convictions and sentences; we consolidated the appeals for purposes of this opinion.
In his appeal, Heath presents the following points of argument for our consideration:
POINT I: THE TRIAL COURT ERRED IN ADMITTING MR. HEATH'S TAPED STATEMENT INTO EVIDENCE BECAUSE IT WAS THE PRODUCT OF A MIRANDA VIOLATION.
POINT II: MR. HEATH WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO REQUEST A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF THE VICTIM'S OUT-OF-COURT AND IN-COURT IDENTIFICATION OF MR. HEATH.
POINT III: THE TRIAL COURT ERRED IN PERMITTING PREJUDICIAL TESTIMONY CONCERNING MR. HEATH'S PRIOR CRIMINAL HISTORY.
POINT IV: THE TRIAL COURT IMPROPERLY DENIED MR. HEATH'S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE FOR A REASONABLE JURY TO FIND THAT HE COMMITTED THE OFFENSE OF CONSPIRACY BEYOND A REASONABLE DOUBT.
POINT V: MR. HEATH'S SENTENCE IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.
We decline to address Heath's point II without prejudice to his right to file a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Based on our review of the record, we find no merit in any of his remaining contentions and we affirm Heath's conviction and sentence.
In his appellate brief, Robinson raises the following contentions:
POINT I: DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN DEFENDANT'S STATEMENTS TO POLICE WERE IMPROPRERLY ADMITTED INTO EVIDENCE BY THE PROSECUTOR THROUGH IMPEACHMENT (Not Raised Below).
POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE PROSECUTOR ADMITTED MR. ROBINSON'S CO-DEFENDANT'S STATEMENTS INTO EVIDENCE WITHOUT PROPERLY DELETING INDIRECT REFERENCES TO MR. ROBINSON FROM THAT STATEMENT (Not Raised Below).
POINT III: THE PROSECUTOR'S ERROR IN USING DEROGATORY LANGAUAGE AIMED AT THE DEFENDANT IN HIS SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL, U.S. CONST., Amend VI, XIV; N.J. CONST., Art. I, pars. 1, 9, 10 (Not Raised Below). POINT IV: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
In a pro se supplemental brief, Robinson contends that:
THE DEFENDANT WAS DEPRIVED [OF] HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE AND WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
We decline to consider Robinson's pro se argument, without prejudice to his right to raise those issues in a petition for post-conviction relief. See Preciose, supra, 129 N.J. at 460; Sparano, supra, 249 N.J. Super. at 419. We find no merit in Robinson's points I and III. However, based on our review of the record we agree that the erroneous introduction of portions of Heath's recorded statement requires reversal of Robinson's conspiracy convictions. Accordingly, we affirm his convictions for robbery, burglary and credit card fraud, and we affirm the sentences imposed for those convictions. But we reverse the convictions for conspiracy to commit theft and conspiracy to commit burglary, and we vacate the sentences imposed for those convictions only. We remand for re-trial on those two charges, should the State choose to re-try him. Should the State choose not to re-try Robinson, the judgment of conviction must nonetheless be corrected.
We briefly summarize the facts, to place the pre-trial Miranda*fn2 hearings in context. On January 31, 2008, in Jersey City, two men broke into a private residence in the middle of the night and began searching for valuables to steal. On the top floor they found the female homeowner, who was sleeping with her six-year-old son and ten-year-old daughter because her husband was away on a ski trip. One of the robbers punched the woman in the head. They then forced her to go downstairs and stole her purse and credit cards. After the robbers left, the woman looked out her window and caught sight of a black SUV parked in front of the house. She called the police and reported the robbery. She later called the credit card companies, learned someone had used one of her credit cards, and alerted the police. They traced the transaction to a nearby gas station, which had a security camera that had recorded a black SUV parked at one of the gas pumps and had also recorded defendant Robinson making a purchase at the station's convenience store. After watching the security video, the victims identified Robinson as one of the robbers. And the police found several of the mother's credit cards discarded in a garbage can near the station's gas pumps. A few days after the robbery, Robinson was arrested for a different crime. When he was arrested, he was wearing the same distinctive jacket that he was seen wearing in the security video.
While he was in custody, the police questioned Robinson on the morning of February 7, 2008, concerning the home invasion robbery. During the questioning, Robinson began suffering from severe drug withdrawal symptoms and had to be taken to the hospital.*fn3 When he was returned to the police station from the hospital a few hours later, he made a confession. However, Judge Kenny later suppressed the statement after an extended Miranda hearing. She found that, at the time Robinson agreed to give his statement, he "knew he was a suspect" in the home invasion, and therefore State v. A.G.D., 178 N.J. 56 (2003), did not require suppression of the statement. However, in her oral opinion of June 18, 2009, she found that the State failed to prove that Robinson's confession was voluntary, due to his obviously debilitated physical and medical condition. She found he was "slumped over, coming out of a heroin addiction." She also found "no question that he was undergoing a serious withdrawal from a serious, serious drug addiction and that he was sick, and then he made some decisions no doubt influenced by the fact that he was sick."
Notably, the judge did not find that Robinson's statement was untrustworthy or likely to have been factually inaccurate, only that it was not given voluntarily. Although she suppressed the confession, the judge also agreed with the prosecutor that if Robinson testified at trial his statement would become admissible for impeachment purposes. Defense counsel did not object to that ruling.
Heath also confessed, under the following circumstances. When speaking with the police on February 7, Robinson implicated Heath, who was arrested on February 8 and was questioned by the police. Heath waived his Miranda rights and gave the police a statement, which they recorded on a DVD. Jersey City detective Inzinna admitted that Heath was arrested in a building known as a "crack house." However, Inzinna testified that during the questioning, Heath showed no signs of being under the influence of narcotics. After viewing the DVD, Judge Kenny issued an oral opinion on May 13, 2009, holding Heath's statement admissible. She found that Heath "did not appear to be in any way impaired," and that he "freely, voluntarily, [and] intelligently waived his rights."
After Judge Kenny decided the pre-trial motions, the trial was conducted before a different judge. This was the most pertinent trial evidence. The woman victim described sleeping in her bed with her children and being awakened by noises in the house. She first believed it was her husband arriving home, but then saw two strangers entering her bedroom. Her son remained asleep, but her daughter awoke, and the woman got out of bed to try to protect the daughter.
According to the woman, one of the intruders was thin, with a drawn-looking face, while the other was "well-built" and "stocky." The stocky man punched her in the head and demanded money. She led the thinner man downstairs and offered him her wallet, but he grabbed her purse as well. After the two men left, she looked out a window and saw a black SUV parked in front of the house. She immediately called 9-1-1 and reported the robbery. She initially told the police that she thought the intruders were Hispanic because of their relatively light complexions.*fn4 At the trial, she identified photographs of the broken front door of her house, as she found it immediately after the robbery.
The day after the robbery, she called the credit card company to cancel her cards and was told that "they had been used in a gas station." Since she was "a non-driver" she knew she had not made the purchase. A few days after she gave the police this information, they transported her and the daughter to the gas station to view a security video. At that time, the woman and her daughter were able to identify the "slender chap" with "the withdrawn cheeks" on the video as being one of the robbers. The woman explained that she had gotten a good look at this man because she "was up close to him when he was taking [her] wallet."
During her trial testimony, the security video was played for the jury and, as the video was shown, she pointed out for the jury that the man shown on the video making a purchase was the individual who took her wallet. She testified that she recognized the man's jacket, his "drawn face," and his complexion. However, she testified that if she saw the two robbers "today," she would be unable to identify them. On cross-examination, she confirmed that at some point not long after the robbery, the police showed her photographs of two robbers, whom she identified at that time as being the two men. She also confirmed that she initially described the men to the police as being Hispanic with olive skin, one being about "5 foot 5" and the other being "5 foot 7."
One of the investigating officers, Detective Lopez, testified that when the police showed the woman and her daughter the security video, they showed them the entire video to see if they would be able to point out anyone on the video who might have been one of the robbers. While watching the video, the woman quickly identified a man entering the station's mini-mart as one of the robbers.
Lopez also identified, on the video, footage of a man exiting the passenger side of the black SUV and discarding something in a garbage can. Lopez testified that after initially seeing that footage, he obtained the gas station owner's permission to search the garbage can; during that search, Lopez found the victim's stolen property. According to Lopez, later on the day of the search, the gas station owner informed him that one of the station's employees had watched the video and could identify the SUV passenger as a man named "Clyde" from "Armstrong Avenue." But Lopez never actually took a statement from that station employee.
Lopez testified that at some point, Robinson was arrested and at that time, Lopez identified him as being one of the men on the security video. According to Lopez, at the time of his arrest, Robinson was much thinner than he was at the time of the trial. He testified that Robinson's face "was a lot more drawn out back then, very skinny." Lopez also identified a photograph which the police took of Robinson at the time he was arrested.*fn5
Lopez admitted on cross-examination that Robinson was about six feet two inches tall. A second police witness, who arrested Robinson, testified that at the time of his arrest on February 6, 2008, Robinson was wearing a black jacket "with fur on the hood and bright orange lining."
During the testimony of the next police witness, Sergeant William Logan, the prosecutor elicited details of the investigation including his seeing "a report that referenced a name as a possible suspect." Logan then stated that he "recognized that name as a possible suspect in a prior incident that happened on the 22nd of January" and that the person's name "was Clyde." At this point, Heath's counsel objected and Robinson's counsel asked for a sidebar conference, which was not recorded. However, after the sidebar, the judge immediately instructed the jury that the "reference to a prior incident and . . . the name Clyde" had nothing to do with "any criminal investigation, any criminal arrest or any alleged criminal activity whatsoever." He directed that they should "forget about it completely" because it had nothing to do with "this case." He further explained that "[i]nvestigations come up and people's names get involved in certain things, but it has nothing to do with this case," and the jury was "not to consider it whatsoever." The judge later denied a mistrial motion by Heath's counsel but gave him a chance to request an additional curative instruction; counsel declined the offer.
Continuing with his testimony, Sergeant Logan described discovering a black SUV parked outside a house on Armstrong Avenue. Detective Inzinna, who assisted in the investigation, then testified that he went to the Armstrong Avenue house, found Robinson there, and asked for Robinson's cooperation in an "investigation." Robinson, who at that point was not a suspect in the robbery, said he would lead the police to someone involved in the matter. But as Robinson left the premises on foot, with the police following in their car, Inzinna noticed that Robinson was wearing the distinctive black jacket with the orange lining that "matched the jacket of the individual caught on the video tape" at the gas station. At that point, Inzinna "called him over to the [police] vehicle" but Robinson fled and the police lost track of him. Inzinna then went back and reviewed the gas station video and realized that Robinson was the man seen using the victim's credit card in the video. Inzinna also testified that, at the time he was caught on video, Robinson was much thinner than he was at the time of the trial.
Inzinna then testified that he took a statement from Heath, after his arrest, and he read portions of Heath's statement to the jury. In the statement, Heath made a full and detailed confession to breaking into the house, hitting the woman, and stealing her property in order to get money to buy drugs.*fn6 He also confirmed that the young girl woke up and saw him. The judge noted, outside the jury's presence, that the statement had been redacted to remove any references to Robinson. However, the statement clearly contained references to an unnamed co-conspirator and accomplice.
While Heath initially insisted in the statement that he drove the SUV alone to the victim's house, he later agreed that "it was [me] and another guy in the car." After describing how he committed the robbery, Heath added in his statement that the victim "didn't tell the person when they went in the basement, you know, the partner, and that's when we left." Inzinna then asked Heath: "Did she, when the other party told her . . . when you were downstairs and the other party was upstairs he told her . . . what did he say to her again?" Heath replied, "[n]o, I said where's the money," but "[the partner was] saying lay down, lay down." After admitting that he hit the woman, Heath stated that another person, whom he did not name, told her to "stay in the bed." He then stated that "[t]hey" went to the basement, and "[t]hat's when she gave up her purse and everything. Then that's when we left." Heath also agreed that "the other person that [he] was with" left the house ahead of him, the "other party" drove the getaway car, and the other person handed him the woman's purse.
Later in his statement, Heath was asked specific questions aimed at showing that he and his partner conspired to commit the crime. He was asked: "Now the other party you were with in the car, did you two discuss the house that you were going to break into when you were driving around? Did you talk about breaking into a house?" Heath responded: "We talked about yes, sir, not houses in particular." He was then asked: "No, but you talked about breaking into a house and then, um, when you parked in front you both decided that this house looked like it was unoccupied because the other ones had lights on." Heath responded, "Yes." He was then asked: "Okay. Then you both went up the stairs." And he answered, "Yes." Robinson's counsel did not object to any of this evidence.
On cross-examination, Inzinna insisted that the police never showed the mother or the daughter either a single photo of Heath or a photo array containing his picture.
In her testimony, the daughter, who was then twelve years old, described waking up and finding two strangers standing at the foot of the bed "asking for money." She testified that the men punched her mother and took the mother "down the stairs." At that point the daughter got "panicky" and "scared." She started to call 9-1-1 but hung up the phone when she heard one of the men coming back upstairs. This individual, who was the heavier of the two men, asked if she was using the phone and she said she was not. She testified that this was the man who hit her mother. This man then took her computer screen and two bags from the bedroom and left. She testified that she got a better look at the heavier-set robber, because she saw him a second time when he returned to the bedroom.
The daughter then testified that when the police took her to the gas station and showed her the video, she recognized the thinner robber on the tape. She explained that his "rectangular face" was distinctive. She also testified that she recognized both defendants sitting at counsel table at the trial, and she identified them to the jury as being the robbers. She admitted that some time after she watched the video, the police showed her a photograph of someone, but it was not anyone she recognized.
After the State rested, Robinson's defense counsel told the judge, outside the jury's presence, that his client insisted on testifying, contrary to his advice. He explicitly indicated that he had tried zealously to present an identification defense but Robinson was insisting on attempting to present an intoxication defense, based on his drug use, which would undercut any defense based on identification. Counsel explained that he had thoroughly discussed this with his client, who still wished to testify.
Defendant testified that he had been a drug addict for many years, and that consistent with his drug habit, on January 31, 2008, he ingested large amounts of heroin, cocaine, and alcohol. He testified that he had no recollection of going into the house where the home invasion occurred and had no memory of either the woman victim or her daughter. He also had no memory of the incident at the gas station which was the subject of the security video. He denied fleeing from the police several days later when they encountered him at the house on Armstrong Avenue.
Robinson also testified that he had no recollection of anything he told the police after his arrest, because he was suffering from drug withdrawal symptoms when they were questioning him. Over the State's objection, the judge allowed defendant to read to the jury long passages from a medical treatise, in an effort to show the effects of long-term alcohol and drug use on his mental functioning.
On cross-examination, Robinson was confronted with the gas station video, and he admitted that he "believe[d]" that he was the person depicted in the film. Robinson was also confronted with the very detailed statement he gave to the police on February 7, in order to impeach his trial testimony that on the night of January 31 he was so intoxicated that he did not know what he was doing at the time and had no memory of what transpired. The prosecutor also elicited from Robinson very specific descriptions of what defendant claimed occurred on the day he allegedly fled from the police.
In summation, Robinson's counsel argued that his client was too intoxicated on January 31 to form the necessary criminal intent to commit the crimes with which he was charged; that he had no recollection of the events of that evening; and that he was the victim of mistaken identification. In his summation, Heath's counsel noted that no physical evidence connected his client to the crime. He questioned the identification procedures the police used, noting that they never showed the victims any photo arrays to see if they could identify Heath as one of the perpetrators. He further questioned the reliability of the daughter's identification of Heath at the trial and the reliability of Heath's confession.
We begin our legal analysis by addressing Heath's appeal. Heath first contends that Judge Kenny should have granted his motion to suppress his confession. We cannot agree. In considering a trial judge's decision on a suppression motion we must defer to the judge's determination so long as it is supported by substantial credible evidence. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 245 (2007). Contrary to Heath's argument, there was no legally competent evidence that Heath was under the influence of drugs or alcohol when he gave his statement. Further, his detailed statement, which is in the record, demonstrated that he was entirely coherent and fully capable of responding to questions. See State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). On this record, we find no basis to disturb Judge Kenny's conclusion that Heath's confession was knowing and voluntary.
Heath next argues that his attorney was ineffective for failing to request a Wade*fn7 hearing to determine the admissibility of the victims' identification of Heath as the perpetrator. Ordinarily, ineffective assistance claims are more appropriately raised in a PCR petition, because they rest on factual issues outside the trial record. See Preciose, supra, 129 N.J. at 460. While it is difficult to perceive a Wade issue in this case, we decline to decide the ineffective-assistance-of-counsel issue without prejudice to defendant's right to raise the issue in a PCR petition. See State v. Sparano, supra, 249 N.J. Super. at 419.
Heath next contends that the trial judge should have declared a mistrial after Sergeant Logan mentioned that Heath was named as a "possible suspect in a prior incident" in a police report. Our review of the trial court's decision is deferential:
The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice. An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence. Thus, an appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice. [State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000) (citations omitted).]
We find no abuse of the trial court's discretion here. The trial judge gave the jury an immediate, strong curative instruction that the "prior incident" was not a criminal matter and they should ignore the testimony. On this record, the judge's instruction was sufficient to cure any possible prejudice from such a passing reference. See State v. Winter, 96 N.J. 640, 647-48 (1984); State v. La Porte, 62 N.J. 312, 318-19 (1973). Further, in light of the overwhelming evidence of Heath's guilt, any error on this point would have been harmless. See State v. Gillispie, 208 N.J. 59, 93-94 (2011).
Heath further contends that the conspiracy conviction was against the weight of the evidence. We cannot agree. In his confession, Heath specifically admitted that he agreed with his "partner" to break into the house in order to steal property. His confession, along with some circumstantial evidence tending to show that the two men acted in concert pursuant to a pre-existing plan, was more than sufficient to support the conviction for conspiracy. See State v. Samuels, 189 N.J. 236, 245 (2007); State v. Reyes, 50 N.J. 454, 459 (1967).
Finally, Heath contends that the aggregate twenty-year NERA sentence is excessive. We find no merit in his argument. Defendant does not dispute that he was extended-term eligible as a persistent offender, because of his extensive prior criminal record. See N.J.S.A. 2C:44-3a; N.J.S.A. 2C:43-7. This was a violent crime, in which Heath broke into a house in the middle of the night, punched the adult victim in front of her child, and terrified both victims. We find no abuse of discretion or other error in the sentence. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Roth, 95 N.J. 354, 363 (1984). Defendant's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
We next turn to Robinson's appellate contentions. For the first time on appeal, Robinson claims that his confession was improperly used to impeach him on cross-examination. Before the trial, Judge Kenny ruled that the confession could be used to impeach Robinson if he testified, and the defense did not object to that ruling. Nor did the defense object during the trial to the State's use of the confession for impeachment purposes. We therefore review Robinson's appellate argument under the plain error rule. See R. 2:10-2; State v. Walker, 203 N.J. 73, 90-91 (2010). We find no plain error.
It is well-established that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Harris v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 646, 28 L. Ed. 2d 1, 5 (1971); State v. Burris, 145 N.J. 509, 524 (1996). However, our courts draw a distinction between a defendant's statement that is elicited in violation of Miranda but is otherwise trustworthy, and a statement that is untrustworthy because it is the product of coercion. "[A] statement that is coerced in fact is not subject to the impeachment exception." Id. at 531. For example, in Mincy v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), the Supreme Court held that no impeaching use could be made of the defendant's confession where he was hospitalized after being shot, was in severe pain and barely coherent, and clearly did not want to speak to the police. "Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne." Id. at 401-02, 98 S. Ct. at 2418, 57 L. Ed. 2d at 306.
In this case, defendant did not object to the impeaching use of his confession and did not request a N.J.R.E. 104 hearing to determine admissibility for impeachment purposes. See Burris, supra, 145 N.J. at 535-36. Judge Kenny barred the prosecution from using defendant's statement affirmatively to establish his guilt based on her conclusion that, due to Robinson's condition at the time, he did not clearly make an informed and voluntary choice to waive his Miranda rights. She recognized that defendant was a highly intelligent, educated person who was fully familiar with his Miranda rights based on his many prior arrests. She found that, had he not been suffering from withdrawal symptoms, he might have made a different judgment concerning whether it was in his interest to speak to the police, and he might have decided to invoke his right to counsel and his right to remain silent. However, she did not find that the police coerced Robinson into making a statement that was untrustworthy or inaccurate. Further, all of the other trial evidence (including the victims' descriptions of how the crime occurred, Heath's confession, and the security video) strongly suggests that Robinson's confession was accurate and trustworthy.
We acknowledge that this is a close issue, because Robinson was suffering from withdrawal symptoms, rendering his confession not voluntary in the legal sense. However, on this record, we are fully persuaded that any error in permitting the impeaching use of his confession would have been harmless beyond a reasonable doubt. By the time Robinson testified, the State had presented overwhelming evidence of his guilt. And, as his trial counsel acknowledged outside the jury's presence, Robinson insisted on telling the jury a version of events that was profoundly unhelpful to his case. Even before the prosecutor began cross-examining him, Robinson implicitly admitted that he participated in the robbery but was too high on drugs to form the necessary criminal intent. That was his reason for telling the jury about his drug problems. We cannot conclude that the jury might have acquitted Robinson, but for the prosecutor's impeaching use of his confession. R. 2:10-2; State v. Macon, 57 N.J. 325, 340-41 (1971).
Robinson next claims, for the first time on appeal, that the State violated his rights under the Confrontation Clause by introducing into evidence Heath's confession, without redacting references that clearly implicated Robinson. The State obliquely concedes the error but argues that it was harmless. It is fundamental, that if a co-defendant does not testify at the trial, those portions of the co-defendant's confession that implicate a defendant are not admissible; if those references cannot be redacted, the trials must be severed. Bruton v. United States, 391 U.S. 123, 132, 88 S. Ct. 1620, 1625, 20 L. Ed. 2d 476, 482 (1968); R. 3:15-2(a); State v. Young, 46 N.J. 152, 157 (1965).
There is an unacceptably high risk of prejudice to a defendant "where the powerfully incriminating extra-judicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Bruton, supra, 391 U.S. at 135-36, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485.
Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. [Id. at 136, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485.]
Moreover, if the co-defendant's confession contains direct references "to the 'existence' of the nonconfessing defendant," it is inadmissible in a joint trial, even if the confession is redacted to replace the defendant's name with blanks or a "neutral pronoun." Gray v. Maryland, 523 U.S. 185, 192, 118 S. Ct. 1151, 1155, 140 L. Ed. 2d 294, 300 (1998).
For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way, for the jury will often realize that the confession refers specifically to the defendant. This is true even when the State does not blatantly link the defendant to the deleted name, . . . Consider a simplified but typical example, a confession that reads "I, Bob Smith, along with Sam Jones, robbed the bank." To replace the words "Sam Jones" with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase "I, Bob Smith, along with, robbed the bank," refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge's instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime. [Id. at 193, 118 S. Ct. at 1155, 140 L. Ed. 2d at 301.]
On the other hand, the co-defendant's confession is admissible if it can be redacted "to omit all reference to [defendant] --indeed, to omit all indication that anyone other than [co-defendant] and [an identified, unrelated third party] participated in the crime." Richardson v. Marsh, 481 U.S. 200, 203, 107 S. Ct. 1702, 1705, 95 L. Ed. 2d. 176, 183 (1987). In Richardson, the Court found the co-defendant's confession admissible in a joint trial, "when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211, 107 S. Ct. at 1709, 95 L. Ed. 2d at 188.
We find this case is closer to Gray than to Richardson. In Gray, the defendant's name was blanked out from the co-defendant's confession, but only Gray and the co-defendant were accused of the crime, and a jury could readily infer that the "blank" referred to defendant Gray. By contrast, in Richardson the crime was allegedly committed by Marsh, Williams and a third defendant named Martin, who was a fugitive at the time of the trial. Williams' confession was redacted so that it only referred to the fugitive Martin and made no reference to Marsh at all.
In this case, the jury knew that Heath and Robinson were the only ones accused of committing the robbery. It was clear from Heath's confession that he conspired with, and committed the robbery with, a co-defendant. A jury would naturally infer that the words "he" and "partner" in Heath's confession referred to Robinson, who was sitting next to him at the defense table. Therefore, although Robinson's name was redacted from the confession, its introduction in evidence still violated his Confrontation Clause rights because he had no opportunity to cross-examine Heath, who did not testify.
We next consider whether this constituted plain error. R. 2:10-2. On this record, we cannot conclude that Heath's confession had the clear capacity to lead the jury to convict Robinson of burglary and robbery when it might otherwise have acquitted him of those offenses. Even without Heath's confession, there was overwhelming evidence that Robinson committed those crimes. The child victim identified him in court as being one of the robbers. The mother and the child both identified him as one of the robbers, when they viewed the security video a few days after the crime. The same video, taken within hours of the robbery, showed Robinson making a transaction with the mother's credit card and then discarding objects in a garbage can; during a search of the garbage can the police found the mother's credit cards. The video also showed Robinson as the driver of the black SUV that the mother identified to police as having been parked outside her house at the time of the robbery. Finally, Robinson was arrested while wearing the same distinctive black jacket with the orange lining that the customer was wearing in the security video. Beyond doubt, he would have been convicted of burglary and robbery without Heath's confession.
We are less certain, however, that the jury would have convicted Robinson of conspiracy without Heath's confession. Conspiracy requires advance planning:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. [N.J.S.A. 2C:5-2a.]
Although there was certainly evidence that Heath and Robinson acted together during the commission of the crime, without Heath's confession there was no direct evidence that the two men conspired to commit the crime. We know that the jury carefully considered Heath's confession, in which he explained that the two men thought the house was unoccupied when they broke in, because they acquitted both defendants of conspiracy to commit robbery and instead convicted them of conspiracy to commit theft. Perhaps the same careful jury would have acquitted Robinson of conspiracy had they not heard Heath's confession implicating his "partner" in planning the crime. Moreover, in his summation, the prosecutor referred to Heath's confession in discussing the conspiracy charges. All of this leads us to conclude that Robinson's conviction for the two conspiracy offenses, but not the underlying substantive offenses, must be set aside.
Robinson's remaining appellate arguments require little discussion. He contends, for the first time on appeal, that the prosecutor made derogatory statements about the neighborhood where he and Heath lived, stating that at the address on Armstrong Avenue there were "watches and jewelry" and "drug addicts and nobody works." Robinson admits the judge gave a sua sponte curative instruction, but he claims it was insufficient. We disagree. The judge's curative instruction was extremely detailed and emphatic, and was given shortly after the prosecutor made the offending statement. The judge unequivocally instructed the jury that the prosecutor's comment was "not relevant for purposes of your discussion or your deliberation whatsoever" and that the jury should "not consider it at all." That was sufficient. On this record there is no possibility that the prosecutor's passing comment produced a miscarriage of justice. R. 2:10-2.
Finally, Robinson argues that his aggregate sentence of twenty-five years with nineteen years of parole ineligibility is excessive. Given the violent nature of the crime, the harm inflicted on the victims, and Robinson's extensive criminal record, we find no error in the sentence. State v. Bieniek, supra, at 608; State v. Roth, supra, at 363. We also find no error in the trial judge's imposing a consecutive sentence for the credit card fraud which, as he noted in imposing the sentence, was a separate offense that victimized the credit card company and the store owner in addition to the card holder. See State v. Yarbough, 100 N.J. 627, 644-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). This point requires no further discussion. R. 2:11-3(e)(2).
Affirmed as to Heath. Affirmed in part, reversed in part, and remanded as to Robinson.