August 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MALIK FLOWERS a/k/a NATHANIEL SANDERS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2012
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-09-1501.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, on the brief).
Erin M. Campbell, Special Deputy Attorney General/Acting Assistant Prosecutor for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Campbell, on the brief).
Before Judges Fuentes, Ashrafi and Hayden.
Following a jury trial, defendant Malik Flowers was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(a); and second-degree certain persons possessing a firearm, N.J.S.A. 2C:39-7(b). Following appropriate mergers, the judge sentenced defendant to an extended term of thirty-five years for the robbery charge with an eighty-five percent parole ineligibility and a mandatory five-year period of parole supervision commencing at the time defendant is released from prison, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; a concurrent term of five years for the unlawful possession of a weapon charge; and a consecutive ten-year term with five years parole ineligibility for the certain persons possessing firearm charge. Defendant appeals and we affirm.
These are the facts adduced at trial. On April 17, 2007, a man later identified as defendant entered a deli in Jersey City at about 10 p.m. Armed with a handgun, he pulled the storefront gate halfway down and put a mask on. Then a second man, unmasked and later identified as co-defendant Aleem Mallard, entered and pulled the gate completely shut. Defendant brandished the gun at the three deli employees and demanded money. He struck an employee named Pedro on the head with his gun and took Pedro's money and cell phone. After taking employee Tareek Ali's wallet, chain, and money, the gunman removed about $1200 from the cash register. Then the two men exited through the front door of the store. The incident lasted approximately fifteen minutes.
After the intruders left, Ali called the police, who responded to the scene. Approximately thirty minutes later, the police brought to the store two suspects found driving a car similar to the robbers' vehicle. Ali stated that they were not the men responsible for the crime. The police officers then took Ali to the police station, where an officer soon told him that the police found two more suspects he could observe.
Around the same time as the robbery, Francisco Fernandez was looking out his third floor apartment window approximately thirty to fifty feet from the deli. He noticed two "suspicious" men near a green Dodge. Both were African-American, around six feet three inches tall, weighing around 220 to 240 pounds. Fernandez noted that the man closer to his window was crouching down and signaling to the other man down the block, pointing in the direction of the store. The man nearer to the store appeared to be in his late twenties or early thirties, wearing a red shirt. The other man, who appeared older, wore a black shirt and dark jeans.
After observing for a few minutes, Fernandez witnessed the two men get into the Dodge and drive away. He noted the license plate number when the car's lights were turned on and called the police. Shortly thereafter, he saw the police arrive at the deli and learned of the robbery. Fernandez never saw defendant or Mallard enter or exit the deli. In court he identified defendant as the older man and Mallard as the man closer to the deli.
Based upon the license plate number provided by Fernandez, Detective Joseph Walsh drove Fernandez to an address on Fulton Street. On route, they saw the Dodge with the same license plate drive past them, and Walsh pursued the vehicle. During the chase the Dodge crashed into a metal pole and the driver and passenger exited the car. Fernandez identified them to the police as the suspicious men he viewed from his apartment.
The police immediately arrested both defendant and Mallard. The police recovered a loaded handgun from the trunk, $511 from Mallard's clothing, $831 from defendant's pants pocket, and five of Ali's credit cards from defendant's boots.
When the police took Ali to the crash site, they brought defendant to him in handcuffs, shined a light in defendant's face, and asked if he was one of the robbers. Ali identified him as the man who had the gun and identified the handgun as the weapon used by the assailant during the robbery.
Subsequently, defendant and Mallard were charged with a fourteen-count indictment, which was amended to dismiss seven of the charges. As previously noted, a jury found defendant guilty of all charges. This appeal followed.
On appeal, defendant presents the following issues for our consideration:
POINT I: THE TRIAL COURT'S REFERENCE TO DEFENDANT IN THE ACCOMPLICE LIABILITY INSTRUCTION AS THE PRINCIPAL "WHO ACTUALLY COMMITTED THE ACT, " WAS IMPROPER AND AMOUNTED TO AN INAPPROPRIATE DIRECTED VERDICT, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL (not raised below).
POINT II: SINCE THE IDENTIFICATION INSTRUCTION IMPROPERLY EMPHASIZED THE STATE'S EVIDENCE AGAINST DEFENDANT WITHOUT ANY MENTION OF DEFENSE EVIDENCE OF MISIDENTIFICATION, DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (not raised below).
POINT III: SINCE THE TRIAL COURT REFUSED TO INSTRUCT THE JURY ON FALSE-IN-ONE, FALSE-IN-ALL, AS REQUESTED BY COUNSEL, THIS COURT SHOULD REVERSE DEFENDANT'S CONVICTIONS AND REMAND THE MATTER FOR A NEW TRIAL.
POINT IV: THE AGGREGATE 45-YEAR SENTENCE OF IMPRISONMENT FOR ROBBERY AND THE PRIOR-FELON WEAPONS CHARGE WAS EXCESSIVE.
Defendant first argues that the judge's jury instruction on accomplice liability included improper language that requires a reversal and remand for a new trial. During an instruction on accomplice liability, the judge stated the following:
So in this case, the State alleges that Aleem Mallard is guilty of the two crimes I just told you [about], armed robbery and possession of a weapon for an unlawful purpose, because he acted as an accomplice to [defendant].
In order to find the defendant guilty, the State must prove beyond a reasonable doubt each of the following elements; . . . that [defendant] committed the act of armed robbery and possession of a weapon for an unlawful purpose, and I've already explained the elements of those offenses. That Mr. Mallard aided, or agreed, or attempted to aid him in planning or committing these crimes, that his purpose was to promote or facilitate the commission of the offense, and that he possessed the same criminal state of mind that is required to be proved against [defendant], who actually committed the act.
Defendant did not object to this instruction. He now argues on appeal that the words, "[defendant], who actually committed the act, " were inappropriate and amounted to a directed verdict, thereby denying him his rights to due process and an impartial jury trial.
For support, defendant relies on State v. Ragland, 105 N.J. 189, 196 (1987), where the Supreme Court found that instructions concerning a certain persons weapons charge constituted a directed verdict, which deprived defendant of his constitutional rights and required reversal. Here too, defendant argues, the "preservation of the integrity of the right to trial by jury requires reversal." Ibid. Asserting that the judge's language "cannot be dismissed as a slip of the tongue or a harmless mistake, " defendant argues that the instruction conveyed to the jury that his guilt on the robbery and weapons charges was a foregone conclusion. We disagree.
We first acknowledge that "proper jury instructions are essential to ensuring a fair trial." State v. Robinson, 165 N.J. 32, 40 (2000) (citing State v. Green, 86 N.J. 281, 287 (1981)). "It is the independent duty of the court to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). When, as here, a defendant did not object to the jury charge, our review is governed by the plain error standard: whether the error is "clearly capable of producing an unjust result." R. 2:10-2.
With respect to jury instructions, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)). "The alleged error is viewed in the totality of the entire charge, not in isolation." Ibid. (quoting Chapland, supra, 187 N.J. at 289). Under this standard, we will reverse if we find that an improper jury charge affected the jury's verdict beyond a reasonable doubt. State v. Collier, 90 N.J. 117, 123-24 (1982).
A directed verdict occurs "when the court instructs the jury to find the defendant guilty of a particular charge, " or steers the jury toward a particular verdict. Ragland, supra, 105 N.J. at 202. Because the State bears the burden of proving each element of a crime beyond a reasonable doubt, the judge cannot preclude the jury's role in determining a defendant's guilt on even one element of the crime. See ibid.; State v. Grenci, 197 N.J. 604, 623 (2009).
In the context of the accomplice liability instruction, it is clear the judge was not making a determination of defendant's guilt. The judge stated initially that the State's theory was that defendant committed the robbery and that Mallard was his accomplice. In the sentence prior to the challenged one, the judge instructed the jury that the State "must prove beyond a reasonable doubt each of the following elements . . . that [defendant] committed and act of armed robbery and possession of a weapon for an unlawful purpose . . . ." Shortly after the instruction at issue, the judge explicitly noted again that the defendant's commission of the robbery was an allegation, that "the State alleges . . . [defendant] entered the store, that he had the gun with the purpose . . . to perform a robbery . . . ." Moreover, unlike the judge in Ragland, here the trial judge clearly pointed out that the State bore the burden of proving each and every element beyond a reasonable doubt.
Although the last part of one sentence might have been poorly worded, we do not agree that it was misleading or amounted to a directed verdict. The judge was simply addressing allegations against Mallard and did not preclude the jury from determining an element to the crime, or narrow the jury's options for conviction or acquittal.
Furthermore, in the unlikely event that the use of defendant's name seemed to a juror to suggest that he was guilty, viewing the judge's brief statement within the context of the entire jury charge, we are convinced that defendant did not suffer any prejudice. The jury had sufficient guidance from the very thorough jury instructions to make its own informed determination of defendant's guilt on all elements of the crimes charged. We conclude that the error, if any, was harmless.
Defendant next alleges that the judge's instructions on eyewitness identification were flawed, although he did not object to the jury charge at the time. In particular, defendant contends that the judge gave the jury favorable information supporting Fernandez's and Ali's identifications without similar mention of the defense's evidence undermining those identifications. This one-sided approach, the defendant argues, deprived him of due process and a fair trial. Moreover, defendant claims that Fernandez's sighting of two men near the deli was not an "identification" of a crime suspect and the inclusion of that fact in the jury instructions "improperly suggested that such circumstantial evidence necessarily bolstered Ali's identification . . . ." We find these arguments unpersuasive.
Additionally, the defendant argues that, based on the Supreme Court's recent decision in State v. Henderson, 208 N.J. 208, 298-99 (2011), it was not enough for the court to give the existing Model Jury Instruction on the circumstances of a showup. Instead, the court should have informed the jury that showups are inherently suggestive, and elaborated on the facts of the showup. In Henderson, the Supreme Court set forth a more stringent framework for assessing eyewitness identification evidence. Id. at 288-93. However, the Court specified that the new framework applies only to the defendant in Henderson and in future cases, "but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth." Id. at 301-02. Because defendant's case was pending at the time the Supreme Court announced the new rule in Henderson, its holding is not applicable here.
It is well established that a "trial judge has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as he clearly leaves to the jury . . . the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them." Reddish, supra, 181 N.J. at 612 (2004) (citation omitted). Trial courts have broad discretion when commenting on the evidence during jury instruction. State v. Brims, 168 N.J. 297, 307 (2001). See also Robinson, supra, 165 N.J. at 41-45 (noting that it is in "the sound discretion of the trial court . . . to add specific factual references to the identification instruction, " as it is defense counsel's job, and not the court's, to probe the State's identification evidence for weaknesses).
However, if the court refers to the State's evidence "in any significant way, " it must also refer to the defendant's contrary evidence. Id. at 45. For example, where the jury charge discusses inferences that could be drawn from the facts in favor of the State's legal theory, the judge must also address possible inferences favorable to the defendant. See Reddish, supra, 181 N.J. at 612-15.
Since defendant did not object to the eyewitness instruction at trial, we review that matter under a plain error standard. R. 2:10-2. From our review of the identification instructions, we do not find that the judge raised factual identification information favorable to the State "in any significant way" as to warrant similar information favorable to the defense. Here, as defendant acknowledged, the trial judge's identification jury instructions tracked the Model Jury Instructions almost verbatim. The judge simply mentioned testimony regarding Ali's showup identification and Fernandez's initial sighting of defendant as a prelude to the lengthy general Model Jury Instructions on identification. We do not agree that this brief review was so favorable to the State as to warrant contrasting defense evidence. Robinson, supra, 165 N.J. at 45. The court did not inform the jury of inferences it could draw from facts surrounding the eyewitness identifications, Reddish, supra, 181 N.J. at 613-15, nor did it make any comments showing or inferring support based on that testimony.
Further, contrary to defendant's argument, the judge's mention of Fernandez's identification of the suspects did not impermissibly bolster the accuracy of Ali's identification. Rather, defendant was entitled to have the jury fully instructed as to the legal intricacies of identification when considering Fernandez's reported viewing of defendant. We conclude that taken in the context of the entire identification charge, the judge's brief account of both Ali's and Fernandez's identifications were proper to clarify the issues for the jury. See Robinson, supra, 165 N.J. at 42-43.
Defendant further contends that the trial judge's refusal to charge the jury with a "false-in-one, false-in-all instruction, " deprived him of due process and a fair trial. Again, we disagree.
Defendant asserts that one of the primary arguments of the defense was that Fernandez and the police lied about the circumstances surrounding the crash during the police chase. Based on the defense's expert metallurgist's testimony that the Dodge's trunk could not have sprung open when it crashed, defendant contends that the police and Fernandez knowingly gave false testimony, warranting the "false in one, false in all" instruction. The trial judge refused to charge the jury with this instruction when defendant requested it. The judge reasoned that the requested charge was "subsumed within the . . . general credibility charge."
Because defendant objected to the alleged error during the trial, we review under a "harmful error" standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971). Unless there is a reasonable doubt that the court's error contributed to the jury's verdict, such error will not warrant reversal. Id. at 338. No party is entitled to have the jury charged in his or her own words. State v. Thompson, 59 N.J. 396, 411 (1971). "If the subject matter is adequately covered in the text and purport of the whole charge, no prejudicial error comes into existence." Ibid.
Traditionally, the "false in one, false in all" instruction may be appropriate when there is a "conscious falsity as to a material fact" in a witness's testimony. State v. Ernst, 32 N.J. 567, 583 (1960). However, a trial judge has the discretion to give the charge "in any situation in which he reasonably believes a jury may find a basis for its application." Id. at 583-84. It "is not a mandatory rule of evidence, but rather a presumable inference that a jury . . . may or may not draw when convinced that an attempt has been made to mislead them by a witness in some material respect." State v. Fleckenstein, 60 N.J.Super. 399, 408 (App. Div. 1960) (quoting State v. Guida, 118 N.J.L. 289, 297 (Sup. Ct. 1937)).
We conclude that defendant's argument has no merit, as the "false in one, false in all" charge is clearly a discretionary charge that a judge is not required to give. In any event, the judge's charge on credibility covered much of what would be stated under the charge, and included the language, "you may accept all of the witness's testimony, a portion of it, or none of it." Consequently, the failure to give a "false in one" charge was not an abuse of discretion.
Finally, defendant argues that the matter should be remanded for resentencing because his sentence was excessive. First, he claims that the judge's imposition of a substantial extended-term sentence was improper, arguing that it was incorrect for the judge to use the sentence to "set an example" of him for other criminals. Additionally, defendant avers that the aggravating factors, in the absence of death, serious bodily injury, or discharge of a weapon, did not justify a thirty-five-year base term on his sentence. Second, defendant argues that the imposition of a consecutive ten-year prison term for a prior-felon weapons charge was inappropriate since, based on the factors in State v. Yarbough, 100 N.J. 627 (1985), a concurrent sentence was warranted. We find these contentions without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add only the following comments.
On appeal, we review the trial court's sentencing decisions under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006) (citing State v. Roth, 95 N.J. 334, 364-66 (1984)). Our "review of a sentence is restricted to whether the determination was supported by competent evidence in the record, and whether the sentence is so unreasonable that it shocks the judicial conscience." State v. Paduani, 307 N.J.Super. 134, 148 (App. Div. 1998).
A court may give a defendant an extended term if "[t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender." N.J.S.A. 2C:44-3(a). The trial court must consider a four-part test when determining whether to give a defendant an extended sentence. State v. Dunbar, 108 N.J. 80, 87-95 (1987); Pierce, supra, 188 N.J. at 168-72.
We find that the judge appropriately considered the relevant factors that are necessary in a Dunbar/Pierce analysis. There is no dispute that defendant, who has twenty-two prior felony convictions, is a persistent offender, N.J.S.A. 2C:44-3(a), and that the maximum sentence was life imprisonment. Concerning the third prong, the judge discussed at length the reasons why he thought defendant deserved a longer sentence. All three victims had a firearm pointed at them and experienced fear of bodily harm. One employee suffered lacerations to the head from being struck by defendant's gun. The court considered several aggravating factors, including whether defendant would commit another offense, the seriousness of the offense, and the need to deter defendant and others from committing similar crimes. N.J.S.A. 2C:44-1(a)(3), (6), (9).
Lastly, the judge considered that there was a "very strong" need "for the protection of the public." Contrary to defendant's argument, the judge correctly found this incident was a very serious, violent offense that involved preying on innocent people. Nor was the judge incorrect, as defendant suggests, in considering the deterrent effect of the sentence, since this is an aggravating factor explicitly mentioned in NJSA 2C:44-1(a)(9) We conclude that giving defendant an extended term while harsh was not an abuse of discretion
Defendant's second contention is that he should have received a concurrent rather than consecutive sentence for his certain persons in possession of a weapons charge The judge's reasoning for doing so was wholly appropriate She noted that the crime was a separate offense from the robbery and served a different legislative purpose The judge's decision was in accord with the principles articulated in Yarbough supra 100 N.J. at 643-44 The nature of the certain persons crime itself necessitates a prior conviction and is intended as a further deterrent to criminal weapons possession See State v Soto 241
N.J.Super. 476 481-82 (1990) (noting that certain persons offenses are "illustrative of legislative recognition that there are separate interests which require protection") Here giving a concurrent sentence rather than a consecutive sentence would frustrate the deterrent effect of the certain persons statute and the legislative intent to further protect the public.