May 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYSHEIM MURPHY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-00858.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012
Before Judges Payne, Reisner and Hayden.
Defendant Tysheim Murphy appeals from his conviction for first-degree armed robbery, and associated offenses, and from the aggregate sentence of thirty-eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR SEVERANCE AND/OR MISTRIAL MADE AFTER THE OPENING STATEMENT BY COUNSEL FOR CO-DEFENDANT HAYES.
A. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS UNDULY PREJUDICED BY THE DANGER OF "GUILT BY ASSOCIATION" THAT WAS AGGRAVATED BY THE OPENING STATEMENT.
B. THE TRIAL COURT MISAPPLIED THE "LAW OF THE CASE" DOCTRINE.
C. THE TRIAL COURT'S MISPLACED CONFIDENCE IN ITS ABILITY TO ISSUE AN ADEQUATE AMELIORATING INSTRUCTION RENDERED THE DEFENDANT'S TRIAL UNFAIR.
POINT II: THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO APPLY APPROPRIATE N.J.R.E. 404(B) CRITERIA IN ADMITTING EVIDENCE OF A PRIOR ASSOCIATION BETWEEN THE DEFENDANT AND "AMY." POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S OVER-ZEALOUSNESS IN SUMMATION (NOT RAISED BELOW).
POINT IV: THE MOTION COURT ERRED IN NOT DISMISSING THE INDICTMENT BECAUSE THE PROSECUTOR'S INADEQUATE INVESTIGATION AND MANNER OF PRESENTATION RESULTED IN THE SUBMISSION OF "HALF TRUTHS" AND UNDERMINED THE DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO INDICTMENT BY GRAND JURY.
POINT V: THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT VI: IMPOSITION OF THE EXTENDED TERM BASE SENTENCE OF 38 YEARS IMPRISONMENT ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND REPRESENTED A MISAPPLICATION OF THE COURT'S DISCRETION.
A. THE TRIAL COURT APPLIED INAPPROPRIATE SENTENCING CRITERIA IN GRANTING THE PROSECUTOR'S MOTION TO IMPOSE AN EXTENDED TERM SENTENCE.
B. IMPOSITION OF A 38 YEAR BASE TERM ON THE DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE.
Finding no merit in Points I through V, we affirm the conviction. We remand for reconsideration of the sentence and for correction of the judgment of conviction (JOC) to reflect defendant's entitlement to jail credits.
This was the most pertinent trial evidence. The victim, Nyjua Kemp, gave a lengthy and detailed description of his ordeal at the hands of two men, whom he identified at the trial as defendant and co-defendant Raheem Hayes. According to Kemp, on the evening of February 3, 2007, he visited a casino in Atlantic City with a friend. As he was leaving Atlantic City on his way home to Bridgeton around midnight, Kemp received a "chirp" on his cell phone*fn2 from a young woman he knew as "Amy." He testified that he first met Amy a year earlier at a grocery store in Bridgeton. They struck up a conversation, and she told him she was from "North Jersey." They had exchanged phone numbers, and had communicated by phone from time to time over the past year.
When Amy "chirped" him during the early morning hours of February 4, he told her he was in Atlantic City, heading home. She told him that she was also in Atlantic City, which she called "the Big," and suggested that they get together. Following her directions, Kemp met her on Chelsea Avenue. She got into his van and asked him to drive her to her sister's apartment. On the way, Amy made a phone call, which Kemp assumed was to her sister; during the call, Amy said that she was on her way to the apartment with a man she described as just an ordinary "Joe."
When they arrived at the apartment, which was in a large rooming house, the door was open. After they both entered, Amy locked the door, which Kemp thought was strange. He told her he could not stay, but just wanted to use the bathroom. At that point, Kemp noticed a bottle of Hennessy liquor and a box of cigars on a table, and he became uneasy because he associated those items with "dudes" not women. Amy approached the bathroom door, which was open "a crack," as if she intended to turn the bathroom light on for him. However, as she did so, two men burst out of the bathroom and, in street jargon Kemp understood, announced "you know what time it is," meaning that they were about to rob him.
One robber, whom Kemp described as tall, held a gun on him, while the other, whom Kemp observed was quite short, went through Kemp's pockets and took his money, car keys and cell phone. The tall robber then handed the gun to the short robber and began slapping Amy around and taking her money, which Kemp described as being secreted in her clothing, including in her boots. From the dialogue, Kemp sensed that they knew each other, and he described the scene as "the worst acting job in the world." In other words, he concluded that Amy had set him up and the tall man was pretending to hit her, landing soft blows, in order to make it appear that she was not involved in the robbery. On cross-examination, Kemp confirmed that at this point in the robbery, he suspected that Amy was a prostitute.
While the short man held the gun, he repeatedly threatened to shoot Kemp. Kemp, a middle-aged man who grew up in "the hood" and now worked with disadvantaged teenagers, thought perhaps he could reason with the robbers, who were younger men. Kemp, who was over six feet tall and weighed over 350 pounds, refused to lie on the floor as the shorter man directed him, but instead got down on one knee and started to pray. At that point, the two robbers became somewhat less hostile toward him, but told him that they were going to take a "G ride," meaning that they were going to steal his car and ride around.
They untied Kemp, who had been restrained with his own shoelaces, and forced him to walk out of the building with them. Despite his pleas to let him take his van and go back to Bridgeton, they forced him into the back of his van at gunpoint and started driving around. A few minutes later, they stopped the van and ordered him to get out. Reluctant to abandon the van, which was retrofitted to accommodate his disabled mother's wheelchair, Kemp finally got out when the robbers threatened to shoot him. After he got out, Kemp started chasing the van on foot, but desisted when the robbers backed the van up and again threatened to shoot him.
Remembering that they had passed a police car parked near the Tropicana casino as the robbers were driving him around, Kemp ran to that location and reported the carjacking and robbery. As he was talking to the officer, Kemp heard a voice from across the street and recognized it as the voice of one of the robbers. Turning around, he recognized the taller assailant, who was wearing the same black sweat suit he wore during the robbery, and pointed him out to the officer. After Kemp assured the officer that he was absolutely sure of his identification, the officer apprehended the man and searched him, finding Kemp's cell phone in the man's pocket. At that point, Kemp turned around and saw the other robber a few yards away, entering a store. He alerted the police, who went into the store, arrested the second suspect, and retrieved a gun that defendant identified as the one used in the robbery.
Kemp also testified that at some point after the robbery, the police showed him a photo array in an attempt to learn the identity of "Amy." He recognized one of the photos as the woman who lured him to the apartment on the night of the robbery. In court, he again identified Amy's photograph. Kemp's testimony was later corroborated by a police witness, who confirmed that Kemp identified Amy's photo from an array.
Atlantic City Police Sergeant Kien Nhan testified that as he was patrolling the area around Georgia and Pacific Avenues at about 2:00 a.m. on February 4, 2007, a large man approached him and exclaimed that he had just been carjacked at gunpoint and robbed of several hundred dollars. As Nhan and the victim, who identified himself as Nyjua Kemp, were talking, Kemp told Nhan that he had just seen one of the robbers walking with a companion. Nhan immediately apprehended the suspect, later identified as defendant Tysheim Murphy. Kemp insisted that Murphy was one of the robbers, although he was equally certain that the man walking with Murphy was not involved in the crime. Nhan searched defendant's pockets and found Kemp's cell phone. Defendant also had $404.
A few minutes later, Kemp told the police that he saw the other robber, later identified as co-defendant Hayes, enter a store. Sergeant Rudy Lushina went into the store and arrested Hayes, who was carrying a box of cereal toward the check-out counter. However, at the time, Hayes was not wearing the red hat Kemp had described and was not in possession of the small handgun Kemp said he had. Lushina returned to the store, searched the cereal aisle, and found a small handgun and a red hat hidden on one of the shelves. Kemp identified the gun as the one used in the robbery. Forensic analysis later revealed that Hayes' fingerprint was on the "magazine," a removable component that held the ammunition inside the gun. Not long after the robbery, Kemp's stolen van was recovered parked near a nightclub in Atlantic City.
Hayes testified at the trial, although defendant did not. According to Hayes, in February 2007, he was living in a rooming house in the same neighborhood where he was arrested. In the early morning hours of February 4, he was selling drugs to raise money to pay his rent. He testified that a local prostitute named Cindy told him that she knew a potential drug customer. She led him behind a nightclub, where Kemp was sitting in his parked vehicle.
Hayes testified that Kemp asked to buy some marijuana and Hayes handed him some, but Kemp balked when Hayes told him the price was $50 a gram. After Kemp initially refused to give back the marijuana, Hayes threatened him with a gun and Kemp handed back the drugs. Hayes contended that a half hour later, as he was visiting a local store to buy a phone card, Kemp falsely accused him of robbery. According to Hayes, he did not know defendant in February 2007 and in fact had never met him. He also denied ever robbing, kidnapping or carjacking Kemp.
Defendant presented testimony from Caesar Parks, the individual who was walking with him at the time he was arrested.
Parks testified that defendant telephoned him at about 1:00 a.m. on the morning of February 4, asking to meet him for a "couple drinks." Defendant also asked Parks to bring him a coat, because it was cold and defendant did not have a coat. About twenty to twenty-five minutes after that phone call, Parks met defendant "in the vicinity of Texas and Pacific Avenue." But instead of going out for a drink right away, they waited there for a half hour while Parks met with another friend. Parks and defendant then proceeded down Pacific Avenue to Georgia Avenue, where the police suddenly confronted them and ordered them to "freeze." Parks admitted he gave the police a false name because he had outstanding warrants and did not want to be arrested. On cross-examination Parks admitted to a significant criminal record.
In considering defendant's appellate arguments, we begin by addressing his motions to dismiss the indictment and for a separate trial. Defendant contends that the State should have conducted a more complete investigation which would have uncovered exculpatory information to present to the grand jury. He also complains that hearsay evidence was presented to the grand jury in lieu of testimony from Kemp. These arguments are without sufficient merit to warrant discussion here. R. 2:11- 3(e)(2). We affirm substantially for the reasons stated by Judge Isman in his thorough oral opinion placed on the record on November 13, 2009.
We next turn to defendant's argument that his trial should have been severed from that of his co-defendant, Hayes. See R. 3:7-7; R. 3:15-2. Prior to the trial, defendant made a severance motion pursuant to State v. Sanchez, 143 N.J. 273, 293 (1996), claiming that at a separate trial Hayes would give testimony exculpating him. Before deciding the motion, Judge Isman conducted an in camera hearing on December 16, 2009, at which he questioned Hayes. As Judge Isman indicated on the record after the hearing, "Mr. Hayes made it extremely clear to me that he would not under any circumstances testify in favor of Mr. Murphy nor exonerate Mr. Murphy . . . because that would be lying." Based on that in camera hearing, Judge Isman denied the severance motion, and defendant and Hayes were eventually tried together before a second judge. Judge Isman's decision was entirely correct, and defendant's appellate brief does not explain why it was erroneous. Instead, he claims that later events that occurred during the trial justified a mistrial and a severance. *fn3
During opening statements, Hayes' attorney told the jury that his client admitted having a gun, for his own protection, because he was a "small time drug dealer" which was a "dangerous trade." He also told the jury that his client needed protection because he was a person of short stature who might easily be "taken advantage of." However, he told the jury that his client was not guilty of the principal crimes with which he was charged, including kidnapping, robbery, carjacking and aggravated assault.
Defendant's counsel objected to this opening statement as creating "guilt by association" with Hayes' now-admitted drug dealing and gun possession. He requested that the trials be severed. In response, the trial judge asked about the prior severance motion. After discussion with counsel, he found no reason to second-guess Judge Isman's decision that State v. Sanchez, supra, did not require severance because Hayes would not give testimony exculpating defendant at a separate trial. The trial judge then determined that it was not necessary to sever the trials because of Hayes' counsel's remarks. Instead, he gave the jury an immediate curative instruction that Hayes' alleged drug activity was irrelevant to the case and they should disregard it.
We conclude that curative instruction was sufficient and the judge did not abuse his discretion in denying the severance motion. See State v. Brown, 170 N.J. 138, 161 (2001); State v. Brown, 118 N.J. 595, 609 (1990). As the Court recognized in Brown, supra, 170 N.J. at 162, some amount of guilt by association is inherent in most joint trials, and that is not sufficient to justify granting a severance motion. Further, the defendants did not present antagonistic defenses. See Brown, supra, 118 N.J. at 606. They presented essentially the same defense - that Kemp was not a credible witness. Despite his earlier statements to Judge Isman, Hayes offered trial testimony that, if believed by the jury, would have exculpated defendant. There was no unfair prejudice to defendant in being tried jointly with Hayes.
Defendant argues that the State should not have been permitted to
introduce a police officer's testimony that Amy Scott*fn4
and defendant were living together as early as 2004. This
issue was first addressed at a pre-trial hearing on September
13, 2010. The trial judge made a preliminary ruling that the officer's
testimony was relevant to show a relationship between Amy and
defendant, but that the testimony would be sanitized to avoid telling
the jury why the officer came in contact with the two of them in 2004.
On the first day of the trial, the State indicated that it would not call Amy as a witness. Defendant's counsel also placed on the record that he had made a strategic decision not to call Amy as a witness because of her connection to defendant. He further indicated that he would object to the police testimony seeking to connect defendant to Amy. However, after a N.J.R.E. 104 hearing during the trial, the judge reaffirmed his earlier ruling, reasoning that the evidence was relevant to the issue of identification. He considered defense counsel's position that identity was an issue in the trial, and specifically that if the robbery occurred, defendant was not one of the two men who committed the robbery. Before allowing the officer to testify, however, the judge instructed the jury that the police can encounter citizens for all sorts of innocuous reasons and the fact that a police witness knew defendant from an encounter in 2004 did not indicate that defendant was a bad person or that he was guilty of the charges in this case.
Immediately after this instruction, Ventnor City Police Officer Ted Bergman testified that in March 2004 he went to an apartment in Ventnor and encountered the occupants, who identified themselves as Tysheim Murphy and Amy Scott. He testified that they both told him that they lived in the apartment. Bergman was shown a picture of Amy and confirmed that she was the woman he spoke to at the apartment.
Defendant contends that the introduction of this brief testimony was impermissible under N.J.R.E. 404(b) as evidence of prior crimes or bad acts. We disagree. As the judge clearly instructed the jury, the evidence was not introduced to show that defendant had committed any prior crimes or bad acts.*fn5 It was introduced to show his prior relationship with Amy. And Bergman did not actually testify about any prior crimes or bad acts, because his testimony was so thoroughly sanitized.
Further, N.J.R.E. 404(b) permits evidence of prior crimes or bad acts to be admitted to prove identity. The sole purpose of Bergman's testimony was to corroborate Kemp's identification of defendant as one of the robbers. The fact that defendant and Amy had a previous relationship made it more likely that defendant was the person whom Kemp identified as the robber who appeared to know Amy. There is no suggestion that Bergman's testimony was inaccurate. The testimony was relevant to a material issue in the case; it was more probative than prejudicial; it was properly sanitized to remove any reference to a prior crime; and it was accompanied by an appropriate limiting instruction. See N.J.R.E. 401; N.J.R.E. 403; State v. Williams, 190 N.J. 114, 131-32 (2007) (discussing the test for admissibility of N.J.R.E. 404(b) evidence); State v. Marrero, 148 N.J. 469, 495 (1997)(limiting instruction required).
Defendant's Point III, alleging for the first time that the prosecutor made improper statements in summation, is without merit. The prosecutor's statements were an entirely proper response to the summation of defense counsel. No further discussion of this point is warranted. R. 2:11-3(e)(2).
We likewise reject defendant's Point V. The trial judge properly denied defendant's motion for a new trial for the reasons stated by the judge on the record on October 22, 2010. Defendant's argument that trial errors warranted granting his motion is without merit, because there were no such errors.
We affirm defendant's conviction.
Finally we address defendant's challenge to the sentence. There was no dispute that defendant was eligible for a discretionary extended term as a persistent offender, based on his age, prior convictions for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, and second-degree possession of CDS with intent and possession with intent to distribute in a school zone, and the time frame in which he committed those crimes.*fn6 While conceding defendant's eligibility, defense counsel argued that defendant's prior crimes were non-violent offenses that did not warrant the court exercising its discretion to impose an extended term.
The court determined that defendant was extended-term eligible based only on the objective factors set forth in the statute. He then continued his analysis, determining that it was appropriate to impose an extended term based on the following factors: defendant had been released from parole for only four months on a prior conviction when he committed these new offenses; defendant was the "ring leader and prime mover" in the offenses; the nature of the current charges of which he was convicted; and his demonstrated "contempt for the bounds of behavior placed on all citizens." The judge considered aggravating factors three (risk of reoffense) and six (prior record), including the seriousness of the crimes and the fact that "[d]efendant has shown no reluctance in using firearms to carry out his criminality. This is a dangerous recidivist with a serious criminal record." He also considered aggravating factor nine, the need to deter this defendant and others from committing "gun violence." See N.J.S.A. 2C:44-1(3), (6), and (9).
The judge then considered where to sentence defendant
within the first-degree extended term range from ten years to life in prison. In that context he considered the three aggravating factors, "the facts and circumstances of this case and the need to protect the public from this violent offender." However, taking into account the real time consequences of a NERA sentence, he determined to impose one extended term of thirty-eight years for the armed robbery, and concurrent terms for all of the other offenses.
In a written statement of reasons issued with the judgment of conviction, the judge elaborated on the heinous nature of the crimes, and the terror inflicted on the victim. He also indicated that defendant had "two prior indictable convictions related to CDS and weapons." He also repeated that defendant showed no reluctance in using weapons to carry out his crimes.
On this appeal, defendant argues that the judge misapplied State v. Pierce, 188 N.J. 155 (2006), in considering whether to impose an extended term. We disagree. In State v. Dunbar, 108 N.J. 80, 90-91 (1987), the Court required sentencing judges to consider "the need to protect the public" in deciding whether to sentence a defendant as a persistent offender. However, following the rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), our Court acknowledged that adding "public protection" as a prerequisite to a defendant's eligibility for an extended term would likely render the extended sentencing process unconstitutional. In order to render the statute constitutional, the Court changed the procedure for imposing an extended term:
The sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant, for purposes of Apprendi, becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process. [Pierce, supra, 188 N.J. at 168.]
In this case, defendant was extended term eligible because of his age and prior convictions. Once the court made that eligibility determination, the court was free to consider the need to protect the public, as one factor in deciding where in the available extended range the defendant should be sentenced.
The court may consider the protection of the public when assessing the appropriate length of a defendant's base term as part of the court's finding and weighing of aggravating factors and mitigating factors. The finding is not a necessary condition, however, to the court's determination whether defendant is subject to a sentence up to the top of the extended-term range. Thus, we rid our sentencing practice of any ambiguity suggestive of a Sixth Amendment transgression by means of a remedy that preserves what, we believe, the Legislature would prefer--keeping the exercise of sentencing discretion in the hands of courts, not juries. [Id. at 170.]
The trial court appropriately determined defendant's eligibility for an extended term based only on the objective statutory factors set forth in N.J.S.A. 2C:44-3. The court then considered whether to use the extended term range in sentencing defendant.
That was consistent with Pierce. The judge then considered a host of factors in imposing a sentence within the legally available range.
However, while the sentencing was consistent with Pierce, we are constrained to remand for two reasons. First, the court was apparently under the mistaken impression that this defendant had prior weapons-related convictions. That is not accurate. Our reading of defendant's criminal history record reveals that, although he was accused of weapons offenses, he was not convicted of any prior weapons offenses in connection with the two CDS convictions. This may be relevant on reconsideration, because defendant's prior convictions were for offenses that were not similar to the current offenses. Second, the JOC does not reflect the 1356 days of jail credit to which the sentencing court indicated defendant was entitled. We therefore remand this matter for resentencing, taking into account that defendant had no prior convictions for weapons offenses. We intimate no view as to what sentence should be imposed on remand. The amended JOC should reflect all applicable jail credits.
Affirmed as to conviction; remanded as to the sentence.