July 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIE C. WALLACE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-07-0620.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges A. A. Rodriguez and Fasciale.
Following a jury trial defendant, Jamie C. Wallace, was convicted of three counts of first-degree armed robbery, N.J.S.A. 2C:15-1a; third-degree resisting arrest, N.J.S.A. 2C:29-2a(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). Judge Robert P. Becker, Jr., granted the State's motion to impose an extended term. He sentenced defendant to a term of imprisonment aggregating to life without parole, and a NERA*fn1 parole disqualifier. We affirm defendant's conviction and sentence.
These are the relevant facts. Defendant was charged with three robberies at three Wawa convenience stores in Vineland during the time span of 11:53 p.m. on April 3, 2007, until 2:03 a.m. on April 4, 2007.
Shortly after midnight, Stacey*fn2 was working at a Wawa located on South Oak Street with another employee. A man, later identified as defendant, entered after the other customers in the store had left, and said, "Give me the money in the register." He had his hand in his pocket as if conceling a weapon. She removed the money, put it in a Wawa plastic bag and gave it to him.
Vineland Patrolman Scott O'Neill responded to the store and obtained a surveillance video from the store security camera. He watched the videotape with Stacey.
Stacey then went to police headquarters and selected from a photographic array of six photographs arranged by Vineland Police Detective Chris Rodriguez. Stacey identified defendant's photograph as the person who demanded money from her.
Around 1:45 a.m., Vincent was working at a Wawa store located on Delsea Drive with two other Wawa employees. He saw several individuals in line at the register. One man let everyone else go ahead of him until there were no other customers left. The man, later identified as defendant, placed a pack of Newport cigarettes and a Tastykake on the counter. When Vincent told him the total amount of the purchase, defendant announced that it was a robbery. He told Vincent to open the register and to give him the money. Vincent could not initially understand defendant and asked him to repeat what he said. Defendant started patting his pocket, which indicated to Vincent that he had a gun. Vincent hit the panic button, which placed a call to the police. Defendant asked Vincent, "Did you hit that button?" and ran out of the store, taking the Newport cigarettes and Tastykake with him. Vincent noticed the direction in which defendant ran and asked a co-worker to call the police.
Police Officer Brad Marchesano responded and spoke to Vincent. The two viewed the surveillance videotape depicting the robbery.
Later, Vincent went to police headquarters. Rodriguez showed him the same photographic array that Stacey was presented with. Vincent identified defendant's photograph as the person who demanded money from the cash register.
Around 2:03 a.m., Karen was working at a Wawa store located on South Main Street with another employee. A man, later identified as defendant, entered, approached the register, and told her to "give me the money" in a soft voice. She was stunned and asked him, "What?" He again told her to "give me the money" in an angrier tone. She refused, and defendant attempted to grab the register with both hands. She screamed and pushed the panic button. Defendant fled from the scene. Karen did not see a weapon, but testified that the man "was like fooling around, like trying to[,] I think[,] fake me out, like he had a gun or something."
Patrolman Gary Apel responded to the scene. He and Karen viewed the security surveillance videotape depicting the incident.
A short time later, Rodriguez went to the store and showed Karen the same photograph array as used with the two earlier identifications. She identified defendant's photograph as the man who demanded the money at the store.
Sergeant Christopher Landi was on duty on the night of the three robberies. A witness informed police that defendant fled one of the robberies in a rust-colored Chevy Caprice. The police broadcasted this information to all officers over the radio. As Landi responded to the scene of the third robbery, he saw a brown/rust-colored vehicle pass him. Landi immediately followed the vehicle and activated his overhead lights. The vehicle turned into a driveway, and the driver, later identified as defendant, immediately exited. Landi, who was in full uniform, parked his vehicle behind defendant's, got out, and identified himself as a police officer. Landi told defendant to get back inside his vehicle. Defendant did not do so. Landi approached him, drawing his service weapon, and ordered defendant to drop to the ground. Defendant fled instead. Landi pursued him on foot.
Patrolman O'Neill also responded to the area. He saw Landi in pursuit of defendant. O'Neill tried to cut defendant off with his police vehicle, then chased defendant on foot and saw him climb onto a shed.
Patrolman Nelson Gonzalez saw defendant jump to the ground from the top of a garage. Gonzalez chased defendant and was able to stop him and place him under arrest with the assistance of several other officers.
Defendant's former girlfriend, the owner of the vehicle from which defendant fled, gave the police consent to search the vehicle. A search of the passenger compartment revealed a cinnamon bun, a Wawa bag containing a small amount of money, and a pack of Newport cigarettes.
At headquarters, Rodriguez spoke with defendant briefly. Defendant told Rodriguez that he was injured and needed help. Defendant added, "Okay, you guys got me. I've got a drug habit. You already know that I did it. Just get me help for my shoulder." Defendant was brought to a hospital by ambulance. Rodriguez went to the emergency room and spoke with defendant. Defendant volunteered, "Hey I have a drug problem. What am I supposed to do?"
Prior to trial, defendant moved for a Wade*fn3 hearing and to suppress evidence of the photographic identifications by the three store clerks. At the motion hearing, Rodriguez testified about the procedures followed. Judge Walter L. Marshall, Jr., presided at the hearing and denied the motion, finding that it was not performed in a prejudicial or suggestive manner. The judge also noted that at the time the photographic identifications were conducted, Rodriguez had not been actively participating in the investigation. At trial, Stacey, Vincent and Karen testified and identified defendant in court as the robber.
On appeal, defendant contends:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THEFT AS A [LESSER-INCLUDED] OFFENSE OF ROBBERY EMBODIED IN COUNTS I, II AND III OF THE INDICTMENT.
In order to charge a lesser-included offense, the judge must first find that "'there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting N.J.S.A. 2C:1-8(e)). The judge must consider whether the evidence at trial presents a "'rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" Ibid. (quoting State v. Brent, 137 N.J. 107, 117 (1994)). "'[S]heer speculation does not constitute a rational basis.'" Ibid. (quoting Brent, supra, 137 N.J. at 118).
Here, there is no rational basis to conclude that defendant is guilty of theft. The witnesses all testified that defendant demanded money from the cash register while pretending to be armed.
Defendant also contends:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE UTILIZED WITH EACH OF THE THREE VICTIMS.
A Wade hearing is appropriate if defendant presents "some evidence of impermissible suggestiveness" in the identification process. State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993) (citing State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985)), aff'd o.b., 135 N.J. 3 (1994). The first issue to be decided is whether the procedure utilized by the police was "in fact impermissibly suggestive." State v. Madison, 109 N.J. 223, 232 (1988). However, "[s]uggestiveness alone is not fatal." State v. Santoro, 229 N.J. Super. 501, 504 (App. Div. 1988), certif. denied, 121 N.J. 593 (1990).
Here, defendant has not shown suggestiveness in any way. Rodriguez was not involved in defendant's arrest and did not interview any witnesses. He simply showed the photo array of suspects' pictures that he did not select. Although Karen's in-court identification was equivocal, it did not warrant exclusion of the out-of-court identification. Rather, this issue is one for the factfinder and does not trigger Wade. See State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 973, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973) ("The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under the appropriate instructions from the trial judge."). Thus, we also find no merit in defendant's contention that the photographic identification via the array was impermissibly suggestive.
Moreover, the patently inculpatory admissions by defendant, as well as the presence of the Newport cigarettes in the car he was driving and the flight from the scene, tend to make the identification less central in this case.
Defendant filed a pro se supplemental brief, contending:
INSUFFICIENT EVIDENCE TO CONVICT ON ARMED ROBBERY.
We determined that this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:14-3(e)(2).