January 7, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DERRICK JOHNSON A/K/A DERECK JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges A. A. Rodriguez, Sabatino and Fasciale.
Defendant appeals from his convictions for first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; five counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree burglary, N.J.S.A. 2C:18-2; five counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; five counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4); three counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; three counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. We affirm but remand to amend the judgment of conviction (JOC) to allow for merger of the conspiracy conviction into the robbery convictions.
A grand jury indicted defendant and co-defendants Gary Sayers and Steven McGuire for certain offenses that they committed on June 22, 2006.*fn1 A jury tried defendant and Sayers together over nine days in September 2006, and found them guilty of all the charges.*fn2
In our unpublished opinion, State v. Sayers, No. A-2074-08 (App. Div. Aug. 24, 2010),*fn3 we affirmed Sayers's convictions and summarized the facts as follows:
At 11:00 p.m. on June 22, 2006, the T.G.I. Friday's restaurant in Somers Point closed. About twenty minutes later, only five employees remained: Eric Yaeger, William McCamy, Eugenia Juarez, Brian Katinas, and Shawn Brown. Katinas dragged several garbage cans from the kitchen out to the dumpster, leaving one to prop open the back door. He was confronted by a masked man pointing a gun at him. A second masked, armed man stood nearby. The first gunman ordered Katinas to tell him how many people were left in the building and where they were located. Katinas did so. The masked men brought Katinas inside at gunpoint to the dry goods storage area. Along the way he encountered Juarez and Brown. They were also escorted to the storage area. By the time they reached the storage area, a third masked gunman joined them. McCamy noticed the gunmen approaching and alerted Yaeger, who was busy tending to the cash drawer. The first gunman then followed McCamy back toward the storage area at gunpoint, while the second gunman emptied the cash drawer and demanded that Yaeger bring him to the safe in the office. The first gunman told the third gunman to shoot McCamy, but after an interruption from Brown, decided instead to rob McCamy, along with Juarez and Katinas, taking cell phones and money from their pockets. He then produced a roll of duct tape and ordered McCamy to bind everyone else's hands.
Meanwhile, the second gunman followed Yaeger to the office. Once there, Yaeger emptied the safe and handed over the contents. The gunman then ordered him to empty the bottom part of the safe, where money already prepared for deposit is dropped. Initially, when Yaeger told him that he could not access that part of the safe, the gunman "jabbed [him] in the back of the head with the pistol and told [him] to open the [f***ing] safe." Soon, though, he accepted Yaeger's explanation that the only key was held by an armored guard that picked up the contents twice weekly, and directed Yaeger back to the storage area.
The gunmen promptly herded everyone into the beer cooler and told them to stay put. Unknown to the gunmen, the cooler had a faulty lock. The employees waited a short time to ensure the robbers had left before escaping and calling the police.
[Sayers, supra, slip op. at 2-4.]
McGuire admitted that he participated in the robbery with defendant and Sayers, explained that they used Sayers's car, in which the police located masks, gloves, and guns, and turned himself in to the police. Thereafter, the police arrested defendant and Sayers.
Defendant did not testify but presented several witnesses, including his girlfriend, Valerie Baldino, who testified that at 6 p.m. on June 21, 2006, she and defendant left for a vacation in New Hampshire with Sayers. Baldino was sure that defendant was not at the restaurant on June 21, 2006. Baldino testified that she and defendant returned from New Hampshire on June 26, 2006.
After the trial, the judge granted the state's motion to treat defendant as a persistent offender, N.J.S.A. 2C:44-3a, and sentenced defendant to an aggregate seventy-year prison term subject to fifty-six years without parole, pursuant to NERA.*fn4 This appeal followed.
On appeal, defendant raises the following points:
THE TRIAL JUDGE ERRED IN ADMITTING TESTIMONY IN VIOLATION OF N.J.R.E. 404(b) AND IN ALLOWING THE PROSECUTOR TO INTRODUCE EXTRINSIC EVIDENCE OF OTHER BAD ACTS. (NOT RAISED BELOW).
THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN HIS SUMMATION REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CONDUCT IN NOT MERELY OBJECTING TO A PORTION OF ONE DEFENSE SUMMATION, BUT BY IMPROPERLY PROVIDING INFORMATION TO THE JURY WHICH WAS NOT PART OF THE TRIAL RECORD AS PART OF HIS OBJECTION. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT SEVEN CHARGING SECOND-DEGREE BURGLARY BASED UPON THE EXISTENCE OF A DEADLY WEAPON INTO COUNT TWO CHARGING FIRST-DEGREE ROBBERY BASED UPON THE EXISTENCE OF A DEADLY WEAPON. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT ONE CHARGING CONSPIRACY TO COMMIT ROBBERY INTO COUNTS TWO, THREE, FOUR, FIVE, AND SIX CHARGING ROBBERY. (NOT RAISED BELOW).
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATION REDUCTION.
Defendant also raised the following points in his pro se brief, which we have re-numbered:
THE STATE INTENTIONALLY DENIED THE DEFENDANT HIS RIGHT TO A PROBABLE CAUSE HEARING, WHICH THE DEFENDANT FILED IN A TIMELY FASHION. THE STATE DELIBERATELY PRESENTED (UNTESTED) 2ND, 3RD, AND 4TH PARTY TESTIMONIAL HEARSAY EVIDENCE BEFORE AN IMPARTIAL GRAND JURY. THIS IS IN VIOLATION OF THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. U.S.C.A. U.S. Const. amend. VI, XIV.
THE TRIAL JUDGE'S PARTIALITY DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY, AND HIS DUE PROCESS RIGHTS. U.S.C.A. U.S. Const. amend. VI, XIV.
THE PROSECUTOR HAS THE AFFIRMATIVE DUTY TO CORRECT WHAT IS KNOWN TO BE FALSE TESTIMONY AND ELICIT THE TRUTH.
THE STATE'S FAILURE TO SUBPOENA ITS KEY WITNESSES, WHO HAD FIRST-HAND KNOWLEDGE OF THE FACTS OF THE CASE, EFFECTIVELY DENIED THE DEFENDANT HIS RIGHT TO HAVE HIS CASE FAIRLY PRESENTED AND DECIDED BY AN IMPARTIAL GRAND JURY.
THE STATE COMMITTED REVERSIBLE ERROR BY PRESENTING THE DEFENDANT'S UNIDENTIFIED ONE ODD GREEN/ORANGE GLOVE BEFORE THE IMPARTIAL JURY AT TRIAL. THIS WAS CLEARLY PREJUDICIAL AND HAD THE CAPACITY TO MISLEAD AND CONFUSE THE JURY. AND THUS, THIS DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. U.S.C.A. U.S. Const. amend. VI, XIV.
POINT XI [THE] ASSISTANT PROSECUTOR . . . FAILED TO MEET THE STATE'S LEGAL BURDEN IN ESTABLISHING A PRIMA FACIE CASE AGAINST THE DEFENDANT. INSTEAD, ASSISTANT PROSECUTOR MARIO FORMICA PRESENTED A DELIBERATE
DISTORTED VERSION COMBINED WITH AN UNFOUNDED ACCUSATION.
We addressed the arguments that defendant raised in Points II, III, and IV, in Sayers, supra, and similarly reject his contentions here. After thoroughly considering the record and briefs, we conclude that defendant's arguments contained in his pro se brief are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We focus instead on defendant's contentions that the judge violated N.J.R.E. 404(b), failed to properly merge the conspiracy conviction into the robbery convictions, and imposed an excessive sentence.
Defendant claims that the judge violated N.J.R.E. 404(b) by (1) introducing testimony of other crimes evidence, and (2) failing to provide a corresponding limited instruction. We apply the plain error standard because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Defendant objects to the following testimony offered by McGuire:
Q. Did you have any concerns about Mr. Sayers and [defendant] . . . when you told them that you wanted to turn yourself in?
Q. What were your concerns?
A. That they w[ere] going to kill me.
Q. Why did you think they were going to kill you?
A. Because of their behavior towards me and because the main code they went by was not snitching. They were scared I was going to snitch on them.
The State offered this testimony to show why McGuire turned himself in to the police, rather than to prove that defendant committed the acts charged. The assistant prosecutor remarked in his opening statement that McGuire, the way [defendant and Sayers] are watching him and the paranoia that [McGuire] has, he believes that . . . Sayers and [defendant] are going to kill him. . . . They told him, look, just be cool, things will blow over in a couple of years; we'll go down south, and don't worry about it.
McGuire [then] decide[d] to turn himself in. The admission of evidence of "other crimes, wrongs, or acts" is governed by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule permits, however, admission of such evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity[,] or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. "Although N.J.R.E. 404(b) enumerates certain instances when other crime evidence will be admissible, the specification of particular instances is only illustrative." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 to N.J.R.E. 404(b) (2012).
In State v. Cofield, 127 N.J. 328, 338 (1992), our Supreme Court provided a rule of "general application" to prevent overuse of other-crimes evidence:
1. The evidence of the other crime must be admissible as relevant*fn5 to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Ibid. (quoting Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a),
38 Emory L.J. 135, 160 (1989)).]
Courts have applied the Cofield test to determine whether to admit evidence offered by the prosecution against a defendant. See Biunno, supra, comment 8 on N.J.R.E. 404 at 206.
Here, prong one is met because McGuire's state of mind is relevant to why he turned himself in to the police and bore on his credibility as a key prosecution witness who recounted the details of the robbery. The testimony supports the State's contention that McGuire turned himself in because he feared for his life. Prong two "need not receive universal application in Rule 404(b) disputes," and "[i]ts usefulness as a requirement is limited to cases that replicate the circumstances in Cofield."
State v. Williams, 190 N.J. 114, 131 (2007). Thus, the "application of prong two serves no beneficial purpose." Ibid. Prong three requires clear and convincing evidence "that the person against whom the evidence is being used actually committed the [act]." Biunno, supra, comment 8(c) on N.J.R.E. 404 at 215. The State offered corroborating evidence that defendant threatened bodily injury to McGuire if he turned himself in to the police.
We arrive at a different analysis regarding prong four, that "the probative value of the evidence must not be outweighed by its apparent prejudice." McGuire's testimony regarding his fear of the robbery participants and their "main code" was highly inflammatory and prejudicial. It was also gratuitous. Nevertheless, we conclude that McGuire's testimony is not "clearly capable of producing an unjust result." Here, Joelle Baily, McGuire's cellmate, testified without objection that defendant approached Baily twice and asked Baily to "do bodily harm" to McGuire to keep McGuire from "ratting him out or snitching on him." Baily testified that defendant offered to compensate Baily, but Baily refused and informed a corrections officer what defendant had said to him. As a result, McGuire's testimony on this subject was harmless.
Next, defendant argues that the judge abused his discretion by granting the State's motion to impose an extended term and, even if the extended term was not an abuse of discretion, that the extended fifty-year term was excessive. He also argues that the court abused its discretion by imposing two consecutive ten- year sentences.
The judge sentenced defendant on the first-degree robbery conviction to an extended term as a persistent offender in accordance with N.J.S.A. 2C:44-3a, which permits a court to sentence a person who has been convicted of a first, second, or third-degree crime to an extended term of imprisonment if it finds that the defendant is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
The imposition of an extended term is within the trial court's discretion. State v. Pierce, 188 N.J. 155, 161 (2006). In imposing an extended term, a court must first determine if the defendant is statutorily eligible based on his or her criminal record. Id. at 168. In this case, defense counsel agreed that defendant was statutorily eligible for an extended term based on his age and prior record within the ten-year statutory period.
The sentences that a court may impose on an extended-term- eligible defendant ranges from the minimum of the ordinary term range to the maximum of the extended term range. Id. at 169.
In exercising its discretion to impose a particular term within this range, a court must assess the aggravating and mitigating factors, including the need to protect the public. Id. at 168-69.
A court's decision is subject to review for reasonableness, the existence of credible evidence in the record to support its findings regarding the aggravating and mitigating factors, and the balancing of those factors. Id. at 169. We apply an abuse of discretion standard to the court's explanation of its decision. Id. at 169-70.
Defendant was eligible for an extended term for first- degree robbery of between twenty years and life imprisonment. N.J.S.A. 2C:43-7a(2). The ordinary range for a first-degree crime is between ten and twenty years. N.J.S.A. 2C:43-6a(1). Defendant argues that he should have been sentenced to a shorter term because: even a twenty-year sentence would serve the interests of justice and protect the public from the forty- eight-year-old defendant; "no one was actually hurt"; and Sayers, rather than defendant, masterminded the robbery and their flight to New Hampshire.
We conclude that the judge's decision to sentence defendant to a fifty-year extended term was not an abuse of discretion.
The term was well below the maximum exposure and the court's findings that defendant's record was "atrocious" and that he appeared to be growing more violent, was well-supported by the record. As the court explained, defendant has a history of twenty-seven adult arrests in New Jersey and Pennsylvania, eight indictable convictions and six DPs in New Jersey, three VOPs, two parole violations, two maxed out sentences and at least three convictions in the Commonwealth of Pennsylvania. Those convictions include two previous weapons by convicted persons. Interestingly yet another here.
Despite his extensive record and the multiple victims in this crime, defendant received a sentence of far less than the maximum life term he could have received.
Nor is there any merit to defendant's contention that the court abused its discretion in sentencing defendant to consecutive maximum terms. A court's discretion to impose concurrent or consecutive sentences is guided by the criteria set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded in part by statute, N.J.S.A. 2C:44-5; State v. Abdullah, 184 N.J. 497, 513 (2005). Those criteria are: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; [and] (e) the convictions for which the sentences are to be imposed are numerous.
[Yarbough, supra, 100 N.J. at 644 (footnote omitted).] The court's discretion must be guided by the overarching principle that "'there can be no free crimes in a system for which the punishment shall fit the crime.'" State v. Hill, 182 N.J. 532, 543 (2005) (quoting Yarbough, supra, 100 N.J. at 643).
Defendant contends that the consecutive terms were improper because, although there were multiple victims, "the remaining factors all point toward a single goal of effectuating a robbery of the restaurant" at the same time and location. Clearly this case involved multiple victims. Nonetheless, defendant received concurrent terms for the great majority of the crimes that he committed that day. Here, the judge properly explained that he imposed the consecutive sentences for the particular crimes that involved distinct threats of violence toward separate victims. A reviewing court's exercise of authority is limited "to those situations in which the application of the facts to the law has resulted in a clear error of judgment or a sentence that 'shocks the judicial conscience.'" State v. Blackmon, 202 N.J. 283, 297 (2010). No part of defendant's sentence exhibits an error of judgment by the trial court or is shocking.
Finally, the state concedes that the judge erred by failing to merge defendant's conspiracy conviction into his robbery convictions. As we indicated in Sayers, supra, slip op. at 17 (quoting N.J.S.A. 2C:1-8a(2)), "a defendant 'may not . . . be convicted of more than one offense if . . . [o]ne offense consists of a conspiracy . . . to commit the other.'"
We affirm the convictions but remand for the judge to amend the JOC to reflect the proper mergers.