May 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OSHEA CLARKE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-01427.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012 --
Before Judges Yannotti and Espinosa.
Defendant Oshea Clarke was tried before a jury and found guilty of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). Defendant appeals from the judgment of conviction dated December 20, 2005. For the reasons that follow, we affirm defendant's convictions and the sentence imposed on counts one and two which were merged for sentencing, but vacate the sentence imposed on count three and remand the matter to the trial court for reconsideration of that sentence.
We briefly summarize the relevant facts. At approximately midnight on June 4, 2004, Nelson Garcia (Garcia) was walking to his home in Plainfield. It was dark but the street was well-lit. Garcia noticed a light-colored Mazda M.P.V. minivan, which was parked across the street. He observed two individuals exit the van and cross the street. One man was a thin, dark-skinned, African-American between five-feet, nine inches, and six-feet tall. He was wearing a white shirt and loose pants. His hair was long and in little braids. He appeared between nineteen and twenty-six years of age.
The man walked towards Garcia, and continued past him, but when Garcia turned, the man struck him with a baseball bat. The other individual held Garcia by his back. Garcia was bleeding. He got loose but the man with the bat hit him again and knocked him to the ground. Garcia said he was struck three times in the head and three times on the hands. The attack continued for about one and one-half minutes. The person who held Garcia took his wallet and the two individuals fled, entered the van and sped away.
The Plainfield Police Department (PPD) conducted a photographic lineup on July 9, 2004. Detective Fernando Sanchez (Sanchez) assembled the photos and Detective Thomas Masuhr (Masuhr) displayed the photos to Garcia. Defendant's photo was one of six that Mashur showed to Garcia. Garcia identified defendant as the person who struck him with the bat.
Garcia testified at trial that he identified defendant as the attacker with one-hundred percent certainty during the lineup. He also identified defendant at trial as the assailant, but said that he was only eighty-percent certain of his identification, due to the passage of time.
After Garcia reported the offense to the PPD, officer Terrence McDonald (McDonald) pulled over a light-colored Mazda M.P.V. van. McDonald said that it was a tan-colored vehicle. Dexter Pereira (Pereira) was driving the van, and he had a female passenger. The van was towed to the police station.
Pereira testified that he knew defendant and defendant had been in his van three or four times. He said that he knew defendant had a baseball bat. Pereira testified that defendant was not in his van when the police stopped him. He said, however, that defendant has driven his van at other times. Pereira also said that he has loaned the van to Troy Keets (Keets), who was defendant's friend.
Tonya Wood (Wood) also testified. She said that she knows defendant and Pereira. Wood said that she has seen defendant in Pereira's van, but could not recall if she had seen him driving that vehicle. Wood also stated that she had seen defendant with a bat.
Detective Francis Wilson (Wilson) testified that, after Pereira's car was taken to the police station, he "lifted" some fingerprints from the vehicle. They were sent to the State Police's Automated Fingerprint Identification System (AFIS) unit where they were run through the computer "for any known hits." Wilson said that the AFIS analysis indicated that defendant's and Pereira's fingerprints were in the car. Defendant's prints were on the inside of the window on the passenger's side door.
As we stated previously, defendant was convicted of first-degree robbery, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon. Defendant thereafter filed a motion for a new trial, which the trial court denied.
The court merged count two with count one and sentenced defendant to sixteen years of incarceration on count one, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the court sentenced defendant to a consecutive ten months of incarceration on count three.
On this appeal, defendant raises the following arguments for our consideration.
THE PRETRIAL PHOTO IDENTIFICATION PROCEDURE UTILIZED BY THE POLICE WITH THE SOLE EYEWITNESS WAS UNDULY SUGGESTIVE AND CAUSED A SUBSTANTIAL RISK OF IRREPARABLE MISIDENTIFICATION.
POINT II THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE INDIRECTLY COMMENTED, IN HIS CLOSING ARGUMENT, ON THE DEFENDANT'S FAILURE TO TESTIFY AND/OR HIS FAILURE TO CONFRONT THE EVIDENCE AGAINST HIM.
POINT III THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IV THE SENTENCE OF SIXTEEN YEARS AND [TEN] MONTHS YEARS [SIC] WAS EXCESSIVE.
POINT V THE SENTENCE OF A CONSECUTIVE TEN (10) MONTHS FOR POSSESSION OF A DEADLY WEAPON SHOULD HAVE MERGED WITH THE CONVICTION FOR ARMED ROBBERY.
Defendant argues that the trial court erred by failing to suppress the evidence of Garcia's pretrial identification in the photographic lineup. Defendant argues that the lineup procedure was impermissibly suggestive and caused a substantial risk of misidentification. We disagree.
In determining whether to admit an out-of-court identification, the court first must "'ascertain whether the identification procedure was impermissibly suggestive.'" State v. Romero, 191 N.J. 59, 76 (2007) (quoting State v. Herrera, 187 N.J. 493, 503 (2006)). If so, the court must then decide whether the identification "'was nevertheless reliable' by considering the 'totality of the circumstances' and 'weighing the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Herrera, 187 N.J. at 503-04).*fn1
Furthermore, "'[r]eliability is the linchpin in determining the admissibility of identification testimony . . . .'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). In determining whether an identification is reliable, the court considers the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]
Here, the trial court conducted a hearing to determine whether Garcia's out-of-court identification should be suppressed. Sanchez and Masuhr testified at the hearing. Sanchez testified that Garcia had informed the police that he believed his attacker was in his twenties. Sanchez and Mashur said that they believed all of the photos in the lineup, including defendant's photo, were of persons who appeared to be about the same age.
Moreover, Sanchez said that he chose photographs of persons that looked similar to defendant's photo. He used a computer system to select photos of persons of the same age and ethnicity as the suspect. In doing so, Sanchez considered the description that Garcia had provided to the police. He selected photos of persons with hair braided in cornrows, since that is the way defendant wore his hair in his photograph.
In addition, Mashur testified that there were six photos of African-American men in the display and one was defendant's photo. All photos were full-face profiles. They all depicted persons about the same distance from the camera. The photos also were of persons in the same age range with the same height and weight. Using a "photograph box," Mashur displayed the photos to Garcia one at a time.
Mashur said he did not tell Garcia which photo to select. Mashur also said did not know which of the individuals in the photos was the suspect. He did not show Garcia any photos before the lineup. Garcia selected defendant's photo, and Garcia was positive in his identification of defendant. Garcia did not select any other photo. Mashur stated that he did not take part in the investigation of the offense, and had no familiarity with the persons in the photos.
After hearing the testimony, the trial court placed its decision on the record. The court found that the detectives' testimony indicated that the procedure was not impermissibly suggestive. According to the court, this was a situation where the witness' identification represented his independent recollection, rather than something that the law enforcement officers had imposed on him. The court therefore decided that Garcia's out-of-court identification was admissible.
The court's findings that the identification procedures employed were reliable "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)). We are satisfied that there is sufficient credible evidence in the record to support the trial court's findings.
Defendant nevertheless argues that the identification procedure employed here was impermissibly suggestive because his photo depicted him at the age of eighteen or nineteen, while the other photographs in the array were of individuals who were all in their twenties. However, as we have explained, Sanchez and Mashur testified that the persons depicted in the photos all appeared to be of the same age. There is no evidence indicating that defendant's appearance in his photo was so different from the appearances of the others in the array as to make the process impermissibly suggestive.
We conclude that the court's decision to admit Garcia's out-of-court identification was not erroneous.
Next, defendant argues that he was denied the right to a fair trial because the assistant prosecutor improperly commented on his failure to testify and/or his failure to confront the evidence against him. Again, we disagree.
We note initially that, in his summation, defendant's attorney stated that this was "a case of mistaken identity[.]" He asserted that, although Garcia said that he was certain when he made his identification, counsel believed Garcia "was mistaken." Counsel also stated, that "[a]ll this business about
[a] car, pictures, fingerprints" did not mean anything because "there is no testimony that somebody saw [defendant] coming out of that car or the guy [who] owned it drove it."
In responding to these assertions, the assistant prosecutor reviewed all of the evidence that supported the State's contention that defendant committed the charged offenses. Among other things, the assistant prosecutor noted that Wilson dusted the van for fingerprints and they were referred to the State Police for analysis. The assistant prosecutor said:
Only two came back from AFIS. Whose are they? The defendant's on the passenger's side and, of course, [Pereira's]. He is the driver of this vehicle. It wouldn't be surprising that his fingerprints were in there.
But then the defendant is going to deny that he is in this van, the van that the victim says that's the van.
At this point, defense counsel objected. He asserted that there was "no testimony from the defendant" denying anything. The trial judge sustained the objection, stating "[t]he defendant has no obligation to deny anything."
It is well established that "'[p]rosecutors are expected to make a vigorous and forceful closing argument to the jury, and are afforded considerable leeway in that endeavor.'" State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Jenewicz, 193 N.J. 440, 471 (2008)). Even so, a prosecutor may not call attention to defendant's failure to testify in the exercise of his rights under the Fifth Amendment to the United States Constitution. State v. Williams, 113 N.J. 393, 454 (1988) (citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)).
Nevertheless, a prosecutor's comment on a defendant's
failure to testify does not always require reversal of a conviction. Ibid. Indeed, [e]ven a direct comment on a defendant's failure to testify may be cured by a judge's timely and effective action. The adequacy of a curative instruction focuses on the capacity of the offending remark to lead to a verdict that could not otherwise be justly reached. Even in the context of a constitutional error, a curative instruction will not be deemed inadequate unless there is a real possibility that the error led the jury to a result it otherwise might not have reached. [State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]
Here, the assistant prosecutor did not make any direct comment on the fact that defendant did not testify at trial. Even if the assistant prosecutor's remark could be interpreted as a comment on defendant's election of his right not to testify, the court's statement rendered the remark harmless. As we have pointed out, the court told the jury that defendant had no obligation to deny anything. Furthermore, in its final instructions, the court instructed the jurors that they "must not consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] did not testify."
We are therefore satisfied from our review of the record that the assistant prosecutor's comment did not deprive defendant of his right to a fair trial. We are convinced that the comments did not lead the jury to reach a verdict that it would not otherwise have reached based on the evidence. Ibid.
Defendant also argues that the trial court erred by denying his motion for a new trial because the jury's verdict was against the weight of the evidence.
We do not agree.
A trial judge may not set aside a jury's verdict "as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. The trial court's decision on such a motion will not be reversed on appeal "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; State v. Labrutto, 114 N.J. 187, 207 (1989).
We are satisfied that the trial court correctly determined that the State presented sufficient evidence to support the jury's verdict. The court noted that, in ruling on the motion for a new trial, it was required to give the State the benefit of all favorable testimony, as well as the benefit of the favorable inferences that could be drawn from that testimony. The court stated that, based on the evidence presented at trial, the jury could reasonably have found defendant guilty of the charged offenses beyond a reasonable doubt.
The court pointed out that Garcia had identified defendant as the person who attacked him with a baseball bat. The court noted that Garcia had correctly identified the make and model of the vehicle that was used. Garcia's identification also was corroborated to some degree by the fingerprints found in the vehicle as well as Wood's testimony. The court accordingly found that the verdict did not represent a manifest denial of justice. We agree.
Defendant argues, however, that Garcia was the only eyewitness to the offense and he did not positively identify him as the assailant. He contends that the State presented no other credible evidence that put him at the scene of the crime. He contends that, while he may have looked like the assailant, the proofs were insufficient to establish that he was the person who attacked and robbed Garcia. We are satisfied that these contentions are without merit and the trial court did not err by denying defendant's motion for a new trial.
Defendant additionally argues that his sentence is excessive. Again, we disagree.
Here, the trial court found aggravating factor one, N.J.S.A. 2C:44-1(a)(1) ("[T]he nature and circumstances of the offense, and the role of the [defendant] therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner.") The court noted that defendant used the baseball bat to commit the robbery, when the robbery could have been committed with substantially less violence. The court said that use of the bat was "particularly cruel."
The court additionally found aggravating factor two, N.J.S.A. 2C:44-1(a)(2) ("identifying the gravity and seriousness of harm inflicted on the victim" as an aggravating factor). The court stated that Garcia was particularly vulnerable because he is from a foreign country and did not speak English "that well." The court suggested that Garcia might be in this country illegally, and defendant could have selected him as a victim because of his perceived mental or legal limitations. The court also stated that defendant took advantage of someone who was not capable of defending himself.
In addition, the court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (identifying the "risk that defendant will commit another offense" as an aggravating factor); six, N.J.S.A. 2C:44-1(a)(6) ("the extent of . . . defendant's prior criminal record and the seriousness of the offenses of which he has been convicted."); and nine, N.J.S.A. 2C:44-1(a)(9) (identifying the need to deter "defendant and others from violating the law"). The court pointed out that defendant was twenty-one years old. He had eight juvenile convictions and this was his second adult conviction. The court found no mitigating factors.
Defendant argues that the court erred by finding aggravating factors one and two. He says that the offense was not committed in a cruel and depraved manner. However, the evidence indicated that defendant struck the victim six times with the baseball bat. Garcia testified that he was bleeding as a result of the attack. The record supports the court's finding that defendant committed the offense in a cruel and depraved manner.
Defendant also argues that the court erred by finding that Garcia was vulnerable. He additionally argues that there is no basis for assuming that a person from a foreign country would be particularly vulnerable. The State acknowledges that there was no evidence that Garcia was in this country illegally. Moreover, it cannot be said that a person from a foreign country might be particularly vulnerable to robbery.
Nevertheless, the record supports the court's statement that defendant selected a victim who was not capable of defending himself. However, even if the court erred by finding aggravating factor two, we are convinced that the other aggravating factors and absence of any mitigating factors provided ample support for the sixteen-year sentence for first-degree robbery, with a NERA parole-ineligibility period.
Defendant further argues that the court should have merged his conviction for possession of a deadly weapon with the conviction for armed robbery. The State maintains that, while it does not agree with defendant's position on merger, the matter should be remanded to the trial court for reconsideration of the sentence imposed for unlawful possession of a weapon. We agree.
Accordingly, defendant's convictions and the sentence imposed on the merged counts one and two are affirmed. The sentence imposed on count three is vacated, and the matter is remanded to the trial court for reconsideration of that sentence.
Affirmed in part, reversed in part and remanded to the trial court for reconsideration of the sentence imposed on count three. We do not retain jurisdiction.