August 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAVAR T. BETHEA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-08-1366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2011
Before Judges Fuentes, Graves and J. N. Harris.
Defendant Shavar T. Bethea was tried before a jury and convicted of first degree robbery, N.J.S.A. 2C:15-1; second degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a BB gun, N.J.S.A. 2C:39-5; and third degree hindering apprehension, N.J.S.A.
2C:29-3b(4). The trial court sentenced defendant to an aggregate term of twelve years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant now appeals arguing, inter alia, that the court violated his constitutional right to a fair trial by restricting his attorney's cross-examination of witnesses against him, limiting his attorney's summation to the jury, and failing to instruct the jury on the State's failure to record out-of-court statements made by co-defendants. We are not persuaded by defendant's arguments and affirm.
We derive the following facts from the record developed before the trial court, which includes the testimony of the two co-defendants who had previously pled guilty to first degree armed robbery, pursuant to a negotiated agreement with the State.
On the night of March 22, 2008, at approximately 9:00 p.m., Joseph Van Saders, Andrew Obuobisa (both eighteen years old), and twenty-four-year-old defendant were "hanging out," watching television in Obuobisa's bedroom, located in the attic of his house in Englewood. At some point, Van Saders decided to order pizzas from "Papa John's." Because they did not have the money to pay for the food, defendant suggested they rob the delivery man by taking the pizzas and his money.
In furtherance of this plan, when the three men placed the pizza order, they gave an apartment complex located across the street from Obuobisa's house as the delivery address. Papa John's employee Richard Formisano arrived at the apartment complex bearing the pizza delivery at approximately midnight. He parked his vehicle and began walking to find apartment H, which was located in a secluded area near woods and a stream. Van Saders was at the location waiting for the delivery; defendant and Obuobisa were hidden around the corner, ready to rob Formisano at the moment he arrived at the doorstep.
When Formisano arrived, he saw Van Saders by the door of the apartment. Van Saders motioned for him to approach as he pretended to reach in his pocket to pay Formisano. At this point, Formisano felt something pressing against his back and heard a man's voice, subsequently identified as Obuobisa, telling him to put his "hands in the air." Formisano did as commanded, raising his hands and dropping the pizza boxes to the ground. It was later discovered that the object Formisano felt pressing against his back was a BB gun held by Obuobisa.*fn1
According to Formisano, a third man (not Van Saders or Obuobisa) searched his pockets and demanded money. Formisano handed him his wallet in an attempt to distract him from searching his top pocket, where he had several hundred dollars - the proceeds of his paycheck that he had just cashed. The misdirection proved successful; the robbers left with only the wallet.
The assailants left the scene of the robbery in different directions. Van Saders picked up the pizza boxes and ran back to Obuobisa's house. He entered the front door, which, as planned, was unlocked. He then made his way into the storage area on the first floor, hid the pizzas under a couch, and squeezed himself between a mattress and a refrigerator. He planned to stay there until the other two assailants arrived. Obuobisa ran behind the apartment complex, threw the BB gun in the stream, and headed for home. As he ran, he passed in front of an unmarked police car that was heading northbound on West Street.
As he was heading back to his delivery vehicle, Formisano saw and stopped the unmarked police car that Obuobisa had just passed. When Formisano told Officer Carlos Calderin that he "just got robbed," the officer reported the incident and requested backup to secure a nearby house "[b]ecause the person that ran in front of [his] patrol vehicle ran right into [that] house," and Officer Calderin suspected that that person "might have been involved with this robbery."
Obuobisa was able to return to his room without incident. Approximately ten minutes later, however, he saw and heard the flashing lights and sirens of police cars through the window in his apartment. Sergeant Gregory Martin posted two officers to guard the entrance, while he, Detective Frank Pulice, and Officer Calderin proceeded to gain access to the property. Katie Obuobisa (co-defendant Andrew Obuobisa's mother) answered the door and signed a consent to search her home.*fn2 The first floor of the house was completely dark and undergoing renovation. The second floor had a padlocked room that, according to Mrs. Obuobisa, lead to her son's bedroom who was at the time working in New York.
Officer John Alise found co-defendant Van Saders hiding on the first floor behind a refrigerator and a mattress, crouched down "hugging his legs," with his "knees up to his chest." The police also found three pizza boxes and a black hoodie near where Van Saders had been hiding. The police took Van Saders to headquarters, placed him in a holding area in the report room and handcuffed him to a bar attached to a bench.
Englewood Detective Fred Pulice testified that he was among the officers who responded to the scene of the robbery. Pulice was also assigned to investigate the case. Van Saders was handcuffed in the holding area by the time Pulice arrived at the police station. Pulice testified that when Van Saders saw him enter the holding area, Van Saders said: "I want to talk to the judge. I want to talk to somebody." According to Pulice, although he explained to Van Saders that he would not be seeing a judge that evening, Van Saders insisted on telling him what happened. Pulice told Van Saders that he would take a statement from him, and advised him that anything he said to him would be passed to the prosecutor's office.
Pulice advised Van Saders orally of his rights under Miranda,*fn3 and thereafter went through the Miranda form, line by line, with Van Saders initialing each paragraph and signing at the end. According to Van Saders, he wanted to speak to the police because he "felt bad about what [he] did;" he said he was homeless and hungry at the time. Van Saders was moved to an office where Pulice prepared a tape recorder. Police procedures require the presence of a second detective during the recorded interview. Because no other detective was available, Pulice decided to conduct the interview in the presence of another police officer. The interview lasted approximately twelve minutes. Based on the statement, the police arrested defendant and co-defendant Obuobisa. They were both taken to the police station and placed in separate cells away from Van Saders.
While he was being taken to the fingerprint room, Obuobisa asked Pulice why he had been arrested because he "didn't do anything." Pulice testified that he told Obuobisa: "Listen. Your friend gave it up. You're being charged and it is what it is." Obuobisa then replied: "I want to talk to you. I'll tell you what happened." Pulice took Obuobisa to the room where the recording equipment was located, informed Obuobisa of his rights under Miranda, and took his statement. Based on this information, the police found and retrieved a six millimeter, shotgun-like, BB gun from the stream located behind the apartment building.
Before the start of trial, defendant successfully moved to suppress the statements given by co-defendants Obuobisa and Van Saders on the ground that they were not electronically recorded in their entirety as required under Rule 3:17. In particular, defendant's motion was based on this part of Van Sader's "Audio Statement" given at the Englewood Police Department in which Pulice allegedly stated to him:
A. O.K., like I - like I, uh, indicated to you earlier, uh, your cooperation is going to be made known to the Prosecutor - Bergen County Prosecutor's Office and, uh, we're going to arrest Andrew and Shavar and we're going to interview them as well and, uh, unless they, uh, contradict your testimony completely or to some extent, uh, you know your testimony is very helpful. [(Emphasis added).]
We granted the State's motion for leave to appeal and summarily reversed the trial court's order suppressing the statements, holding that the "preliminary unrecorded statement by Van Saders" did not violate the electronic recordation requirements of Rule 3.17(a). These remarks fell within the "spontaneous statement" exception under Rule 3.17(b)(ii). We further held that even if the statement had violated Rule 3:17(a), the trial court "failed to consider lesser sanctions as alternatives to suppression," pursuant to Rule 3:17(d). A "lesser sanction" could have been a jury instruction under the model charge, approved by the New Jersey Supreme Court and provided for under Rule 3:17(e). Finally, we held that under N.J.R.E. 607, the State could present the recorded statements of Obuobisa and Van Saders to rebut "an express or implied charge against these witnesses of recent fabrication or improper motive or influence."
The State's case consisted of the testimony of the investigating officers and the co-defendants. Although Formisano testified describing the events of the robbery and his interactions with the police officers, he was not able to identify any of his assailants. Defendant rested without calling any witnesses in his own defense. He also opted not to testify.
Against this record defendant now appeals raising the following arguments.
DEFENDANT'S RIGHT TO CROSS-EXAMINE THE WITNESSES AGAINST HIM WAS IMPERMISSIBLY
RESTRICTED; THIS WAS COMPOUNDED BY THE COURT'S RESTRICTION ON COMMENTS DURING SUMMATIONS; BOTH CONSTITUTE REVERSIBLE ERROR.
POINT II THE PROCEDURE USED BY THE POLICE DURING THE INTERROGATION OF VAN SADERS AND OBUBISA [sic] VIOLATED R.3:17; FAILURE TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY WAS REVERSIBLE ERROR.
Defendant's arguments lack sufficient merit to warrant extensive discussion in this written opinion. Rule 2:11-3(e)(2). Defendant seeks to reargue this court's prior order reversing the suppression of the statements given by the two co-defendants. The trial court did not impermissibly curtail defense counsel's cross-examination of the police officers who were involved in taking the statements. The trial court properly enforced this court's ruling by preventing defense counsel from rearguing to the jury an issue of law previously settled on appeal.
The scope of cross-examination is left to the sound discretion of the trial court and an appellate court will not interfere with the court's rulings in this area absent a showing of clear error and prejudice. State v. Wakefield, 190 N.J. 397, 452 (2007) (citing State v. Martini, 131 N.J. 176, 263-64 (1993)). The trial court here gave defense counsel a reasonable opportunity to explore the procedures used by the police in taking the statements. We discern no basis to interfere with the court's rulings.