NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 09-02-0645 and 09-05-1745.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Yannotti, Ashrafi and St. John.
Defendant Latif Robinson appeals from his conviction and sentence on burglary, assault, and weapons charges after a jury found that he fired shots into and inside a neighbor's house because he was annoyed by loud music. His defense at trial was that he was not the shooter, but three eyewitnesses identified him. We affirm.
In the early morning hours of April 19, 2008, relatives and friends of Sylvia Pabon were gathered at her house on Pearl Street in Camden. Brothers Isadiel and Israel Falcon were outside, and music was playing on a car radio. A young man, later determined by means of photo identifications to be defendant, approached the Falcons and complained about how loud the music was. He punched Isadiel Falcon in the face. Falcon retreated into Pabon's house when he saw defendant reach for his waistband, fearing that he was armed. Falcon knew defendant was staying at a house two doors away.
A short time later, another man, later identified as Taj Mays, went to the Pabon house and attempted to make peace. The people at Pabon's house believed Mays was defendant's brother. Mays told them that defendant was no longer armed. But defendant soon returned and confronted the people at Pabon's house a second time. He began firing a semi-automatic handgun into the house. He then entered the house and fired several more shots. The occupants hid or escaped through a back door. Someone yelled that there were children in the house. Pabon got up and told defendant to stop the shooting. He stopped shooting and left. Israel Falcon suffered a graze wound to his shoulder, but no one else was hit or otherwise injured.
When the police arrived, Isadiel Falcon pointed out the neighboring house as the place where the police would find the shooter. Defendant's grandmother lived at the neighboring house, and she told a detective that defendant sometimes stayed with her. This information prompted the police to obtain a photo of defendant from their files. At the scene of the shooting, the grandmother and Israel Falcon were shown the photo. The grandmother confirmed that the photo was her grandson, and Israel Falcon put his signature on the back of the photo to indicate his identification of the shooter.
The police prepared two photographic arrays, one included defendant's photo (without Israel's signature) and another one that of Taj Mays. At police headquarters later that morning, three of the victim-witnesses — Pabon, Isadiel Falcon, and Tinamarie Santos — selected defendant's photo from the array as the person who had fired the shots. They all gave recorded statements to the police about the shooting. Santos and Isadiel Falcon also identified Mays and told the police that Mays was with defendant but was struggling with him and trying to stop the shooting.
At the trial two years later, the victim-witnesses were reluctant to testify, or they gave testimony that was inconsistent with their statements on the day of the shooting. Nevertheless, on the strength of the eyewitness testimony and identifications, the jury convicted defendant of one count each of burglary, possession of a firearm for an unlawful purpose, aggravated assault, simple assault, and possession of a firearm by a convicted person. The jury acquitted defendant of attempted murder and other assault and weapons charges.
At defendant's sentencing, the court merged the assault charges with other counts of conviction and sentenced defendant to seven-and-a-half years in prison on the burglary charge, with eighty-five percent of the sentence to be served without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. It also sentenced defendant to five years for possession of a firearm for an unlawful purpose, concurrent to the burglary sentence, and seven-and-a-half years with five years of parole ineligibility for possession of a firearm by a convicted person, the last sentence to run consecutively to the other sentences.
Defendant was indicted separately for another incident that occurred on October 18, 2008, involving the stabbing of a former roommate. He entered into a plea agreement and pleaded guilty to a charge of aggravated assault on that indictment.
Defendant's aggregate sentence on all State and federal charges was fifteen years imprisonment with eleven years and about four months of parole ineligibility.
Defendant raises the following arguments on this appeal:
THE TECHNIQUES EMPLOYED BY LAW ENFORCEMENT IN DISPLAYING PHOTOGRAPHS TO PROSPECTIVE WITNESSES WERE IMPERMISSIBLY SUGGESTIVE, AND THE CONDITIONS OF THE WITNESSES WERE SUCH THAT THEIR OUT-OF-COURT AND IN-COURT IDENTIFICATIONS WERE NOT RELIABLE. AS A RESULT, THE COURT SHOULD HAVE BARRED THE USE OF ALL IDENTIFICATIONS.
VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED MR. ROBINSON OF A FAIR TRIAL AND REQUIRED THAT THE CONVICTIONS BE REVERSED (PARTIALLY RAISED BELOW).
A. The Remarks of the Prosecutor Insinuated that Mr. Robinson was Responsible for Ms. Pabon's Fear of Testifying.
B. The Prosecutor's Opening Statement Exceeded the Boundary of Fair Comment.
C. The Prosecutor's Summation Remarks Deprived Mr. Robinson of a Fair Trial.
THE COURT DEPRIVED MR. ROBINSON OF DUE PROCESS GUARANTEED TO HIM BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, PARA. 1 OF THE NEW JERSEY CONSTITUTION BY INSTRUCTING THE JURY THAT THE DEFENSE HAD THE BURDEN OF PROOF (NOT RAISED BELOW).
THE COURT ERRONEOUSLY DENIED THE DEFENSE REQUEST FOR A CLAWANS CHARGE REGARDING TAJ MAYS.
THE COURT SHOULD HAVE HELD A HEARING PURSUANT TO STATE V. GROSS, 121 N.J. 1 (1990) REGARDING THE TESTIMONY AND STATEMENTS OF TINA MARIE SANTOS AND ISADIEL FALCON.
THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE AS EVIDENCE OF AN EXCITED UTTERANCE, AND THAT ERROR DEPRIVED MR. ROBINSON OF A FAIR TRIAL.
THE TRIAL COURT ERRED BY ALLOWING DETECTIVE PROVENZANO TO TESTIFY AS TO WHETHER THERE WERE BULLET HOLES IN THE WALLS OF THE PABON RESIDENCE WHEN HIS EXPERTISE IN DETERMINING SUCH WAS NOT ESTABLISHED.
ALL THE CHARGES WHICH RESULTED IN CONVICTION AT TRIAL SHOULD HAVE BEEN MERGED FOR SENTENCING.
THE SENTENCE IMPOSED WAS EXCESSIVE, AND CONCURRENT SENTENCES SHOULD HAVE BEEN IMPOSED FOR ALL COUNTS OF INDICTMENT 09-02-0645-I.
Defendant has also filed a pro-se brief raising the following additional issues:
I. PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHERE IN THE FOURTEENTH AMENDMENT, IT SAYS, "NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW."
II. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON INCONSISTENT AND CONTRADICTORY STATEMENTS DURING TRIAL, WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL, A CONSTITUTIONAL RIGHT PROMISED IN THE FOURTEENTH AMENDMENT.
III.THE COURT DEPRIVED DEFENDANT OF DUE PROCESS PROMISED TO HIM IN THE FOURTEENTH AMENDMENT ALLOWING GRAND ...