May 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CALVIN W. GARNETT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012 --
Before Judges Messano and Yannotti.
Defendant Calvin Garnett was tried before a jury and found guilty on three counts of first-degree robbery and other offenses. He appeals from the judgment of conviction entered by the trial court on June 4, 2010. We affirm.
Defendant was charged with three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, three and five); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b) (counts two, four and six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); fourth-degree unlawful possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count nine); fourth-degree unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count ten); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eleven). The court granted the State's motion and dismissed count nine. Defendant was tried before a jury on the remaining charges.
At the trial of this matter, the State presented evidence which established that at approximately 1:45 a.m. on July 27, 2008, John Williams (Williams), John Johnson (Johnson) and Siraya Timothy (Timothy) were sitting in Johnson's car on Melville Place in Irvington. Williams was in the driver's seat. He was talking with Timothy, who was seated in the back seat. Johnson was asleep in the front passenger seat.
Williams noticed an African-American male walk toward the car and then past it. He also saw a "shadow" in the rearview mirror. There was a tap on the window, and Williams turned to his left. He observed an African-American male who was wearing a white shirt with a dark-colored handkerchief over his nose. The man had shoulder-length dreadlocks and was holding a black, semi-automatic gun, which he used to tap on the window.
The man pointed the gun at Williams and told him to hand over money, jewelry and any cell phones. The handkerchief fell several times, and the perpetrator's face became visible. Williams handed over a silver-colored chain with a cross, and Timothy gave him six dollars. The man threw Timothy's money back inside the car. Johnson awoke and Williams told him what was happening. Johnson gave the man his cell phone.
Williams and Johnson tried to contact the police using a device in their car, but the device was not working. They decided to take Timothy home. As they were on their way to Timothy's house, they saw the perpetrator walking along the street with two other persons. Williams saw that the perpetrator was wearing his chain. Johnson obtained another cell phone and called the police. The dispatcher told the victims they should go to a nearby fast-food restaurant because an off-duty police officer was at that location.
When they arrived there, the victims reported the incident to the officer, who informed police headquarters of the physical description of the perpetrator. Patrol units were directed to respond to the location where the suspects were last seen. Patrolman Barry Zepeda (Zepeda) was on patrol that evening. He proceeded to the place where the suspects had been seen.
Zepeda observed three African-American males walking away from him. One of the individuals matched the description of the perpetrator that he had been provided. Zepeda turned his police vehicle around, and he asked another unit to respond to the scene to provide back up. Zepeda drove up and ordered the three men to stop. Two of the men stopped but a third male, who matched the description of the armed robber, began running away.
Another patrol unit arrived. One officer remained at the scene, while Zepeda and another officer chased the suspect into the basement of a building. In a basement apartment, the officers saw the suspect bend down near a bookcase. Zepeda apprehended the suspect and the other officer recovered a 9 millimeter, black, semi-automatic handgun, which contained eight hollow-point bullets.
Johnson went with the police for the show-up identification. Three African-American males were standing by a fence and Johnson positively identified defendant as the man with the gun who robbed the occupants of the car earlier. Johnson was taken to Irvington police headquarters, where he gave a statement to a detective.
Johnson additionally identified photographs of the necklace, handgun, and bandana. Johnson also identified defendant as the perpetrator from a photograph. Several days later, Williams gave a statement to the police. He identified the gun used by the perpetrator, as well as the bandana he had been wearing. Williams was shown a photographic array, and he selected defendant's photo, indicating that defendant was the person who robbed him.
The jury found defendant guilty on the counts upon which he was tried. The court sentenced defendant on June 4, 2010. After merging count eight (charging possession of weapon for an unlawful purpose) with counts one, three and five (charging armed robbery), the court sentenced defendant to an aggregate term of twelve years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, (NERA) N.J.S.A. 2C:43-7.2. This appeal followed.
Defendant raises the following arguments for our consideration:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S DISMISSAL OF A JUROR DURING THE COURSE OF THE TRIAL OVER THE OBJECTIONS OF DEFENSE COUNSEL AS WELL AS THE PROSECUTOR.
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNTS IV AND VII CHARGING FOURTH-DEGREE AGGRAVATED ASSAULT WERE AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We turn first to defendant's contention that the court denied his right to a fair trial because the court dismissed a juror during the course of the trial.
The following facts are pertinent to our consideration of this issue. Prior to the conclusion of the State's case, the trial judge noted that juror number eight had been "nodding off" as soon as he was seated on the morning of the third day of the trial. The judge indicated that she was going to discharge the juror due to his inattentiveness. The judge stated:
He's right in my line of vision. And when I say he's nodding off, I don't mean that his eyes are closed, I mean that his head is actually sort of falling down, and every once in a while, he sort of wakes up with a jerk for a few seconds. I know he's trying [because] he walked into court this morning with a half-drunk large bottle of Coke, but it does not appear to be working.
The assistant prosecutor and defense counsel objected to the court's decision to discharge the juror. The judge maintained, however, that the fact that the juror was falling asleep was "obvious" and she believed questioning the juror would lead to "the inescapable conclusion that the [juror] was sleeping" and "sleeping for almost the entire period of the testimony." The judge excused the juror.
Defendant argues that the trial judge erred by discharging the juror and, as a consequence, he was denied his right to a fair trial. Defendant contends that neither defense counsel nor the assistant prosecutor concurred with the judge's observations, and even if the juror had been inattentive, it was "seemingly of little significance." We are convinced that these arguments are without merit.
The Constitution of the United States and the New Jersey Constitution guarantee a criminal defendant the right to trial by an impartial jury. State v. Williams, 113 N.J. 393, 409 (1988); State v. Tinnes, 379 N.J. Super. 179, 183 (App. Div. 2005). "A new trial will be granted where jury misconduct or intrusion of irregular influences into the jury deliberation 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" State v. Grant, 254 N.J. Super. 571, 583 (App. Div. 1992) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).
In State v. Reevey, 159 N.J. Super. 130 (App. Div.), certif. denied, 79 N.J. 471 (1978), defense counsel informed the court that, during his summation, one of the jurors had been dozing, nodding and sleeping. Id. at 133. Counsel suggested that the court designate the juror as an alternate but the court stated that it did not believe it had authority to do so. Ibid. We disagreed, stating that the court erred by failing to take "appropriate action[.]" Ibid.
We observed that the court "certainly had the discretion to remove a juror under these circumstances and to substitute an alternate." Ibid. We said that the judge should have questioned the juror to determine if the juror had in fact been sleeping or if the juror's ability to render a fair decision had been impaired. We stated that a trial judge "for good cause shown, may excuse a juror where the circumstances warrant." Id. at 134.
We are satisfied that the trial judge did not abuse her discretion by discharging the juror. The judge observed the juror falling asleep during the testimony. Although the assistant prosecutor and defense counsel did not concur in the judge's observations, that does not mean that juror was not, in fact, sleeping. The judge should have questioned the juror to confirm her observations; however, the judge was firmly convinced that such questioning would only confirm the fact that the juror had been sleeping.
We also find no merit in defendant's suggestion that it would not matter if a juror fell asleep during a portion of the trial testimony. Defendant's right to a fair trial necessarily requires all members of the jury to be attentive during the presentation of the evidence. We are satisfied that the trial judge did not err by acting to ensure that defendant's right to a fair trial was not compromised.
Next, defendant contends that the jury's verdict on counts four and six, charging defendant with the aggravated assault upon Johnson and Timothy was against the weight of the evidence.
We note that defendant did not file a motion in the trial court seeking a new trial on the ground that the jury's verdicts on these counts was against the weight of the evidence. Rule 2:10-1 provides that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." We have nevertheless chosen to address this issue in the interest of justice. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001).
In counts four and six, defendant was charged with fourth-degree aggravated assault upon Johnson and Timothy, respectively, contrary to N.J.S.A. 2C:12-1(b)(4). A defendant is guilty of that offense if he "[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in [N.J.S.A.]2C:39-1(f), at or in the direction of another, whether or not the actor believes it to be loaded[.]" N.J.S.A. 2C:12-1(b)(4).
Defendant maintains that there was insufficient evidence to support his conviction on these counts because the evidence indicated that he pointed the gun at Williams, not Johnson and Timothy. We disagree.
In State v. Clausell, 121 N.J. 298, 307 (1990), the defendant and another man went to the front door of the home of Edward Atwood (Atwood). Atwood was not home, but his wife and daughter responded to the knock on the door. Ibid. She told him that Atwood was not home. Ibid. They left but returned later. Ibid. Atwood answered the door, and Atwood's wife and daughter followed him to the door. Ibid. His grandparents were close by, and his son sat at the top of the stairs. Ibid.
A man, who identified himself as Dwayne Wright (Wright), said "Ed?" Id. at 308. Atwood told him that he had "the wrong guy" and moved to shut the door. Ibid. Wright stepped aside.
Ibid. An unidentified man stepped forward and fired a shot at Atwood through the interior door and exterior screen door. Id. at 307-08. As Atwood fell, the other family members "ducked." Id. at 308. "The unidentified man moved closer to the screen door, and aiming downward, again shot through both doors." Ibid. The State presented evidence indicating that the unidentified man was the defendant. Id. at 310-11.
Among other offenses, the defendant was charged with five counts of aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(4). Clausell, supra, 121 N.J. at 309. The jury found the defendant guilty of the aggravated assault of Atwood's wife, daughter and grandmother. Id. at 312. The Supreme Court held that the jury's instructions on this offense were erroneous. Id. at 316-18. The Court stated that the trial court did not inform the jury that it could convict defendant of aggravated assault only if it found that defendant was aware that it was practically certain that when he pointed the gun into the Atwood foyer, he was pointing it at or in the direction of persons other than Edward Atwood. When outlining the elements of aggravated assault, the court failed to charge the jury that to find defendant guilty, it must find that defendant was aware of those other persons. [Id. at 316-17.]
In this case, the evidence established that defendant approached the car on the driver's side, pointed a weapon at Williams and told him to turn over his personal possessions. Timothy was in the rear passenger seat, and Johnson was seated in the front passenger seat. The evidence allowed the jury to find that defendant brandished the weapon for the purpose of robbing all of the passengers in the car. Moreover, the jury could reasonably find that defendant was aware that there were persons other than Williams in the car, and he was pointing the gun in the direction of all of the occupants of the vehicle.
Defendant also argues that his sentence is excessive. Again, we disagree.
Here, the trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court additionally found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment will entail excessive hardship to defendant or his dependents).
The court sentenced defendant to concurrent twelve-year terms of incarceration on counts one, three and five (charging robbery), each with a period of parole ineligibility as prescribed by NERA. The court also imposed concurrent terms of eighteen months, with eighteen months of parole ineligibility, on counts two, four, and six (charging aggravated assault). In addition, the court imposed a five-year term on count seven (charging unlawful possession of weapon), merged count eight (possession of a weapon for an unlawful purpose) with counts one and three; and imposed concurrent twelve-month terms on counts ten (unlawful possession of hollow point bullets) and eleven (resisting arrest).
Defendant argues that his criminal record, which consists of numerous arrests, did not warrant a finding that there was a risk he would commit another offense. He additionally agrees that there was little need for a finding of specific deterrence and "relatively minimal weight" should have been given to the need for general deterrence.
Defendant further argues that the trial court should have found additional mitigating factors, specifically mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no prior criminal record and has led a law-abiding life for a substantial period of time before commission of the present offense); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur); and nine, N.J.S.A. 2C:44-1(b)(9) (character and attitude of defendant indicate that he is unlikely to commit another offense).
We are satisfied, however, that the record fully supports the court's findings of aggravating and mitigating factors, and did not warrant findings of any other mitigating factors. We are therefore convinced that the sentences imposed here are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
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