November 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH LAZOS, A/K/A JOSEPH W. LAZOS, JOEY LAZOS, JOE LAZOS, G LAZOS, LAZSO W. JOSEPH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-03-0136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 31, 2012
Before Judges Axelrad and Haas.
On March 10, 2010, defendant Joseph Lazos was charged in superseding Cumberland County Indictment No. 10-03-0136 with third-degree burglary, N.J.S.A. 2C:18-2a(1) (count one); third-degree theft of a motor vehicle, N.J.S.A. 2C:20-3(a) (count three); third-degree conspiracy to commit burglary, N.J.S.A. 2C:l8-2 and N.J.S.A. 2C:5-2 (count five); third-degree conspiracy to commit theft of a motor vehicle, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:5-2a(2) (count seven); third-degree attempted theft, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:5-1a(1) (count nine); third-degree conspiracy to commit theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-2 (count eleven); and fourth-degree hindering, N.J.S.A. 2C:29-3b(2) (counts thirteen and fourteen).*fn1
Judge Benjamin C. Telsey denied defendant's pretrial motion to sever counts one, three, five, and seven from counts nine and eleven, and to have counts nine and eleven severed from counts thirteen and fourteen. On September 30, 2010, defendant was convicted by a jury of counts five, seven, nine, eleven, and thirteen, and acquitted of counts one, three, and fourteen. On November 18, 2010, the judge found defendant eligible for a discretionary extended term under N.J.S.A. 2C:44-3a. The judge sentenced defendant to a flat nine-year term on count five, conspiracy to commit burglary; a concurrent nine-year term on count seven, conspiracy to commit theft of a motor vehicle; a concurrent nine-year term on count nine, attempted theft; and a concurrent eighteen-month term on count thirteen, hindering. Count eleven was merged into count nine. This appeal ensued.
On appeal, defendant argues:
THE COURT COMMIT[T]ED REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT'S MOTION TO SEVER COUNT NINE FROM THE REMAINING COUNTS OF THE INDICTMENT.
DEFENDANT'S CONVICTION SHOULD BE REVERSED AS THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT DUE PROCESS.
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
DEFENDANT'S SENTENCE WAS EXCESSIVE AS THE SENTENCING COURT FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS.
Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm.
Defendant and his girlfriend Kelly Stidham were accused of stealing three ATVs from the shed of Brandi Harris*fn2 and Robin Higbee, who were his neighbors, and attempted theft of another neighbor's Ford pickup truck. The State presented the testimony of State Troopers Frank DaCosta and Carl Scowcroft, Higbee, Harris, James Eisinger, and Stidham. Defendant presented the testimony of an investigator, Michelle Martellio. The following testimony and evidence was adduced at trial.
Higbee testified that the three ATVs had been chained together and stored in a detached shed on her property. On April 16, 2009, after realizing the ATVs had been stolen, Higbee called police. Trooper DaCosta arrived and observed a broken chain and tire tracks in the mud leading from the shed to the road. He interviewed neighbors, including defendant, to determine if anyone had witnessed the theft, but he was unable to develop any leads.
Higbee testified that on April 21, 2009, Stidham banged on her door around 10:30 p.m. She observed Stidham hysterically crying. Stidham claimed defendant had stolen Higbee's ATVs. Defendant then arrived and began arguing with Stidham. Higbee related that defendant told her he went to her garage because Stidham told him to come, and stated that he was not going to take just one ATV but was going to take them all to make it worth his while. He would not say who had the ATVs but repeatedly told her she could buy them back. Defendant then threatened both Higbee and Harris, who was then at the doorstep, stating that if they called the police, he would have his gang, the Bloods, come and kill them.
During this encounter, Harris had called Higbee's father and asked him to come to their home. Defendant fled when Higbee's father arrived. Harris then called the police, who apprehended defendant in the yard across the street from her home.
Stidham gave two statements to police, implicating herself and defendant in the theft of the ATVs and the attempted theft of the other neighbor's truck. Specifically, Stidham claimed defendant wanted to steal a white truck next door to his house, so he popped the ignition out of the truck while she sat in front of a bush in his yard. They then walked into her cousin's yard, and defendant entered the garage with a pair of bolt cutters. Apparently defendant could not get the lock cut, so Stidham gave it a try and was successful in cutting one of the locks after using a tire as leverage. Defendant then moved all three ATVs to the front yard, and hot-wired one of them, which he used to pull the others, parking them on a dirt road near his house.
At trial, Stidham testified the statement about the truck was coerced from her by police and she made up the story about defendant stealing the ATVs because she was mad at him and wanted to spite him. She did admit, however, that she pled guilty to conspiracy to commit burglary and conspiracy to commit theft in connection with these two offenses.
In May 2009, about a month after the reported ATV thefts, Eisinger, a neighbor of defendant's, reported that his white Ford truck had been broken into, and the ignition switch was broken. He had not checked on the truck for approximately two to four weeks.
Defendant first argues the court erred in not severing the attempted theft of the truck charge from the other charges involving the ATVs because trial of the counts together were prejudicial and "encouraged the jury to infer that defendant had a criminal disposition." We disagree.
A motion to sever counts rests within the trial court's sound discretion and is subject to the abuse of discretion standard. State v. Brown, 118 N.J. 595, 603 (1990); State v. Pitts, 116 N.J. 580, 603 (1989).
Rule 3:7-6 states that "[t]wo or more offenses may be charged in the same indictment or . . . in a separate count . . . if the offenses charged are of the same or similar character . . . or constitut[e] parts of a common scheme or plan." Moreover, a defendant "shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial." R. 3:15-1(b).
The Supreme Court has held that "the mere claim that prejudice will attach is not sufficient to support a motion for severance and require[s] some showing that the joinder of offenses would prejudice the defendant." State v. Moore, 113 N.J. 239, 274 (1988) (internal quotation marks and citation omitted). Moreover, "[a] critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible . . . in the trial of the remaining charges." Pitts, supra, 116 N.J. at 601-02.
During the severance motion hearing defendant argued there was no sufficient nexus between all the crimes such that they should be presented to one jury. Judge Telsey disagreed, concluding defendant's crimes were part of "the same series of events and acts." He explained [t]his was a situation where there was an attempted theft at one location, was unsuccessful [and] [t]hey go right down the street . . . and they were  successful with a theft in the break in of a shed, and the stealing of ATVs at that location, same street, same time, same purpose, same intent, which is to commit a theft. And then, a couple days after that event it's alleged that [defendant] contacted the alleged victims to say something along the lines of, "Don't report what I just did," which was the theft that took place a couple days before.
These events demonstrate both motive and a common plan or scheme to steal. The charges of conspiracy stem from the beginning of the course of conduct, which, as Stidham testified, initiated when they planned to steal the truck. Following the failure of their original plan, defendant and Stidham further conspired to head across the street to steal the ATVs in Higbee's and Harris' shed.
Defendant has also failed to prove he was prejudiced. He never explains why the count pertaining to theft of Eisinger's truck would cause a jury to infer he had a criminal disposition. Even if the count were severed, the evidence of the other crimes still would be admissible under N.J.R.E. 404(b) to demonstrate motive, opportunity, intent, or plan. The judge also mitigated any potential prejudice by instructing the jury that it must consider each count separately:
There are eight offenses charged in this indictment. They are separate offenses by separate counts in the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based upon the law as I will give it to you.
We note that the jury only convicted defendant of five of the eight counts in the indictment, acquitting defendant of burglary of the shed, theft of the ATVs, and hindering of Harris. This verifies that the jury was able to distinguish between the different charges and applied the evidence to each count.
Turning to defendant's second argument, prosecutorial misconduct "is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). We are not persuaded the domestic violence questions by the prosecutor were "clearly and unmistakably improper" so as to constitute misconduct and deprive defendant of a fair trial warranting reversal of his conviction. See State v. Koskovich, 168 N.J. 448, 488 (2001) (internal quotation marks and citation omitted).
Before the trial, defendant made a motion to bar any witness from referring to alleged acts of domestic violence between defendant and Stidham. The judge restricted any testimony as to domestic violence unless it was interjected through cross-examination, after which the prosecutor, on application, could seek to explore the area. The judge also barred testimony about any physical injuries that may have been observed on Stidham because "the risk of undue prejudice that [defendant] gave . . . Stidham a black eye, is severe here."
On cross-examination of Stidham, defense counsel brought up that she felt threatened by the police and, because of those threats, she changed her story about the thefts of the ATVs, and on the date in question she remembered having a "big fight" with defendant and argument at Harris' and Higbee's house. On redirect, the prosecutor asked whether defendant had ever threatened her. Stidham replied, "no" and defense counsel objected. The ensuing sidebar is largely inaudible.
Following a brief recess and outside the jury's presence, the prosecutor moved to introduce two prior restraining temporary restraining orders into evidence, which the court denied. Defense counsel moved for a mistrial, arguing the prosecutor had violated the court's order to refrain from broaching the subject of domestic violence. The prosecutor emphasized that the prior question had dealt with not whether defendant had beat Stidham up but if she had been threatened by him, to which she had responded in the negative. The motion was denied.
The prosecutor then asked the next witness, Trooper Scowcroft, about Stidham's demeanor when he interviewed her.
First, he was asked how she appeared and he replied "normal." He was then asked "[w]as she loud, quiet?" and he responded "[s]he was a little quiet, I assumed because of a domestic incident." There was no objection to this question. The prosecutor asked no follow-up question. At the end of the trooper's testimony, defense counsel renewed her motion for a mistrial. Judge Telsey denied the motion, reasoning that the trooper "may [have] use[d] the word domestic, but that went directly to the argument that was taking place in the yard."
We discern no prosecutorial misconduct, let alone a basis for a mistrial. The State stayed within the bounds of the court's pre-trial order denying evidence of domestic violence. The prosecutor attempted to elicit evidence from Stidham that was pertinent to her motivation for changing her story, with generalized questions of whether she was threatened. When the judge declined to admit the TROs into evidence, the prosecutor asked no further questions on the issue.
Similarly, the prosecutor could not have predicted the trooper would have used the word "domestic" in his answer, as he was only asked a generalized question about Stidham's demeanor. We disagree that the prosecutor "pressed further" after asking the first question regarding Stidham's appearance. The prosecutor asked an appropriate follow-up question, and the trooper responded with an innocuous answer that cannot logically be perceived as depriving defendant of a fair trial.
Defendant's last challenge to his conviction, that the verdict is against the weight of the evidence, is procedurally barred by Rule 2:10-1, as defendant never filed a motion for a new trial. Nevertheless, there is no merit to this claim. The evidence presented to the jury, giving the State the benefit of all favorable inferences, State v. Reyes, 50 N.J. 454, 458-59 (1967), is sufficient to sustain defendant's guilt beyond a reasonable doubt of the attempted theft of Eisinger's truck. Stidham's detailed statement that defendant wanted to steal a "white truck parked right next door to his house . . . and [h]e popped the ignition out" matches Eisinger's testimony that he is defendant's neighbor and his white Ford Truck "was broken into, and the ignition switch was busted out of it."
We turn to defendant's sentence. The court found aggravating factors three (risk that defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3), six (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), N.J.S.A. 2C:44-1(a)(6), and nine (need for deterring defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9). The court rejected mitigating factors one (defendant's conduct neither caused nor threatened serious harm), N.J.S.A. 2C:44-1(b)(1), two (defendant did not contemplate his conduct would cause or threaten serious harm), N.J.S.A. 2C:44-1(b)(2), and eleven (imprisonment of defendant would entail excessive hardship to himself or his dependents), N.J.S.A. 2C:44-1(b)(11). Accordingly, the judge found the aggravating factors substantially outweighed the nonexistent mitigating factors.
We reject defendant's argument that factor six was misapplied, and there was an improper balancing of mitigating factors. Defendant acknowledges his record at the time of sentencing was extensive. He had forty-seven arrests as an adult, including convictions for assault and theft-related charges. Essentially, the only extended period of time defendant was able to remain offense free was when he was incarcerated. Moreover, while these charges were pending, defendant was charged with committing eleven new offenses. Nonetheless, in determining the sentence, Judge Telsey only placed "less weight" on aggravating factor six.
Contrary to defendant's assertions that his offenses only involved property crimes, and therefore he never threatened harm, Judge Telsey astutely noted that defendant "violated the sanctity of another's home" by breaking into the attached shed.
Thus, although defendant's offenses were not particularly violent, they were egregious.
We are satisfied the court acted well within its discretion in identifying and weighing the aggravating and mitigating factors supported by the evidence, and imposed a sentence within the permissible range for each offense. State v. Bieniek, 200 N.J. 601, 608 (2010). As the court applied correct legal principles, and the sentence is amply supported by the record and does not shock our judicial conscience, we discern no basis to disturb it. State v. Roth, 95 N.J. 334, 363-64 (1984).