August 29, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JAMES HAYWOOD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-09-1551.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Kenneth Burden, Deputy Attorney General, of counsel and on the brief).
Before Judges Axelrad and Sapp-Peterson.
Defendant appeals his convictions and the sentences imposed for first-degree kidnapping, N.J.S.A. 2C:13-1b, and complicity, N.J.S.A. 2C:2-6 (Count One); first-degree robbery, N.J.S.A. 2C:15-1, and complicity, N.J.S.A. 2C:2-6 (Count Two); second- degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Four); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (Count Five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) Count Six; and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Count Seven). We remand for sentencing on the first-degree kidnapping conviction but otherwise affirm the conviction and sentences imposed on the remaining convictions.
The following factual and procedural history is relevant to the arguments advanced on appeal. Defendant accosted the victim, Eric Sickinger, in the parking lot of Sickinger's office around 10:00 p.m. on April 10, 2008. Defendant displayed a silver, semi-automatic gun and demanded that Sickinger turn over his car keys. When Sickinger told defendant he had taken the bus and explained that the keys he had were to his office, defendant forced Sickinger back to his office where he made him remove his shoes and bound his feet and hands with a telephone cord. Defendant also warned Sickinger not to attempt an escape because there were two men outside acting as lookouts.
Sickinger did not see anyone other than defendant, but heard simultaneous rummaging in multiple rooms, leading him to believe there was a least one other person involved.
As soon as defendant was out of Sickinger's sight, he was able to loosen his hands and dialed 9-1-1. Police arrived on the premises within minutes. Sickinger heard defendant say, "It's the [expletive] cops, I think he called the cops." Sickinger untied his feet and attempted to escape through a window. While doing so, he realized that defendant was behind him. Police tackled defendant, but he was able to get away.
Police pursued defendant, who ran across a highway and was struck by a vehicle. Although the impact catapulted defendant into the air before he fell to the ground, defendant was able to get up and continue running until three officers converged on him. A brief struggle erupted between defendant and police. Police discharged two doses of pepper spray before subduing defendant and arresting him. Police asked defendant what he had done with the gun, and defendant told them that he had given it to the "other individuals who were with him."
The following day, while defendant was still hospitalized for injuries he sustained from being struck by a motor vehicle, police questioned defendant after administering Mirandawarnings. Defendant told police that he committed the robbery as part of an initiation into the Crips gang. Defendant explained that he was a drug dealer and wanted to sell his drugs without interference from the gang.
Prior to trial, defendant moved to suppress the statement he gave police at the hospital. He maintained that despite knowing he was undergoing treatment for injuries he sustained just prior to his arrest, resulting from being struck by a motor vehicle "traveling probably in excess of 50 miles an hour[, ]" police made no effort to determine the nature of the medication being administered to him, although the interrogating officer assumed he was on medication. Nor did the officer make an effort to determine whether the medication would affect the voluntary waiver of his right to remain silent. Additionally, defendant argued that although the interrogating officer testified at the suppression hearing that defendant appeared "awake, " "alert, " "lucid, " "coherent, " and did not exhibit slurred speech, this was a lay opinion and not the type of affirmative evidence establishing a knowing, voluntary, and intelligent waiver of his constitutional right to remain silent.
In a written opinion, Judge Patrick J. Roma denied defendant's motion. The judge credited the testimony of the two officers who testified at the hearing. He first found that the statements defendant made at the scene were unsolicited and given when defendant was not in custody, and, therefore, no Miranda warnings were required. Turning to the statement given at the hospital, the judge found that defendant was properly administered Miranda warnings and there was no suggestion of "coercion, inability to understand, or conditions that might lead this [c]ourt to find that the defendant's statements resulted from an overbearing of defendant's will."
At trial, the State moved to introduce defendant's statement that he kidnapped and robbed the victim as part of a Crips gang initiation. Defendant objected to any gang references in his statement being presented to the jury. After considering the State's application, the court, citing State v. Cofield, 127 N.J. 328, 338 (1992), the court admitted the statement, as given to police, concluding that the evidence was relevant to establish defendant's motive, and the probative value of admitting the evidence outweighed the prejudice to defendant.
The jury convicted defendant of all charges. Prior to sentencing, the State filed a motion seeking the imposition of an extended term as a persistent offender under N.J.S.A. 2C:44-3. The court granted the motion, finding that defendant met the statutory criteria for imposition of an extended term, which is not an issue in the present appeal. The court found five aggravating factors and no mitigating factors. The court imposed an aggregate custodial sentence of forty years.
On appeal, defendant raises the following points for our consideration:
ADMISSION OF EVIDENCE THAT DEFENDANT COMMITTED THE ROBBERY AS A STREET GANG INITIATION RITE DENIED HIM HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
DEFENDANT'S HOSPITAL BED CONFESSION SHOULD BE SUPPRESSED BECAUSE THE STATE FAILED TO ADDUCE SUFFICIENT CREDIBLE EVIDENCE FROM WHICH THE COURT COULD REASONABLY FIND A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF HIS RIGHT TO REMAIN SILENT.
THE MATTER MUST BE REMANDED FOR RESENTENCING.
A. THE COURT FOUND TWO AGGRAVATING FACTORS NOT SUPPORTED BY THE RECORD.
B. THE SENTENCE WAS IMPOSED WITHOUT FOLLOWING THE REQUIRED PROCEDURES OF STATE V. PIERCE.
Having thoroughly reviewed the record, we conclude that other than remanding, as the State concedes, for resentencing on the kidnapping charge, defendant's arguments are "without sufficient merit to warrant discussion in a written opinion, " and, therefore, we summarily affirm both his convictions and his sentences. R. 2:11-3(e)(2). We add only the following brief comments.
In defendant's brief, it is acknowledged that the challenge to the voluntary and knowing waiver of his right to remain silent at the time he gave his statement to police in the hospital, based upon possible effects of medication, is speculative. The court credited the testimony of Officer Robert Von Schalscha, who took the statement from defendant. His description of defendant's speech and demeanor during the questioning was rationally based upon his personal observations, which the court appropriately considered. See State v. Labrutto, 114 N.J. 187, 197-198 (1989).
The decision to permit the jury to hear that defendant committed the offenses as part of a gang initiation in order to protect his drug trade was an evidentiary ruling committed to the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). We discern no abuse of discretion here. Before admitting the evidence, the court considered the four factors trial courts must analyze under Cofield, supra, 127 N.J. at 338, for admission of prior bad acts evidence, and concluded that the prejudice to defendant in admitting the challenged references was not outweighed by the probative value of the evidence. Additionally, the court gave an appropriate limiting instruction to the jury explaining the purpose for which the jury could consider the admitted evidence.
We also reject defendant's contention the court erred by not sanitizing his statement. Once the court determined that the evidence was admissible, defendant did not request that the statement be sanitized to omit references to gangs and drugs. Because this contention is being raised for the first time on appeal, we review the claimed error under the plain error standard, namely, whether the court's failure to sanitize the statement created the "possibility of injustice sufficient to 'raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Barden, 195 N.J. 375, 394 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Under this standard of review, we find no error, let alone plain error. Defendant's theory advanced at trial was that the events involving the victim related to a botched drug deal. Defense counsel, in his opening statement, told the jury: "And what really happened is that this was a drug deal gone bad. Doesn't sound good. It isn't nice. But that's the defense. And when it went bad, that's when the story changed." Thus, defendant injected his own theory into the case and it was therefore appropriate to admit defendant's statement explaining why he committed the crimes. Consequently, we conclude that sanitizing the statement was not appropriate here. Moreover, even assuming the court erred in not sanitizing the statement, the error was harmless because the evidence against defendant was overwhelming. In addition to his confession, the victim's keys, driver's license and debit card were found on defendant's person, as was a brown glove, similar to a glove found on the ground southeast of the building, in the area where defendant was observed fleeing.
Finally, the State agrees that the sentencing record is unclear as to whether the trial court applied the correct legal principles when sentencing defendant on the kidnapping charge. We therefore remand for resentencing on the kidnapping charge pursuant to 2C:43-7a(1) and State v. Pierce, 188 N.J. 155, 169 (2006).
The conviction is affirmed. The sentence imposed is affirmed in part, vacated in part, and remanded for re-sentencing on Count One, first-degree kidnapping. We do not retain jurisdiction.