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State v. Outland

Superior Court of New Jersey, Appellate Division

March 20, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
THOMAS H. OUTLAND, a/k/a THOMAS GO OUTLAND, ISLAM GOODWIN, and THOMAS H. JAMISON, Defendant-Appellant.

          Submitted November 8, 2018

          On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 14-08-0751.

          Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).

          Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

          Before Judges Alvarez, Nugent, and Mawla.

          OPINION

          ALVAREZ, P.J.A.D.

         Tried to a jury, defendant Thomas H. Outland was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1, and second-degree robbery, N.J.S.A. 2C:15-1.[1] After merging the convictions, the trial judge sentenced defendant to a sixteen-year extended term as a persistent offender subject to the No Early Release Act. N.J.S.A. 2C:43-7.2; N.J.S.A. 2C:44-3(a). Defendant appeals and we affirm.

         We glean the facts from the trial record. Defendant worked next door to a check cashing establishment and often took coffee in the morning to Claudia Cardenas, the check cashing employee. She worked in the rear where the safety deposit box was located, protected by a system of two security doors. Exterior video footage taken on the date of the robbery, April 30, 2014, depicts defendant[2] walking towards and joining two hooded figures while holding a white object, similar in appearance to a paper cup. The group moves together towards the check cashing store and disappears inside. Moments later, the two hooded figures run out. Shortly thereafter, police cars arrive.

         Cardenas testified that on the morning of the robbery, defendant called in to her, and, as was her custom, she unlocked the outer security door to get the coffee. As she did so, a man forced the second security door open and punched her. She saw another man; both of their faces were covered by hoodies. Cardenas was punched in the face again and pushed down onto the floor. Approximately $35, 000 was taken from the safe.

         When she next raised her head, Cardenas saw defendant near the door. She asked him to call the police, and he told her to calm down because the men were dangerous. A customer entered the store, and Cardenas again asked defendant to call 9-1-1, which he did.

         After the State rested, defendant moved the 9-1-1 recording into evidence and played the tape to the jury. Over the State's objection, the judge found the tape admissible as a present sense impression exception to the hearsay rule, N.J.R.E. 803(c)(1), and the excited utterance exception, N.J.R.E. 803(c)(2). The judge also ruled that if defendant played the tape to the jury, in rebuttal the State could play redacted portions of defendant's two recorded statements to police, and proffer his prior convictions.

         Defense counsel played the 9-1-1 tape. In rebuttal, the State moved into evidence defendant's sanitized criminal history of four prior indictable offenses and service of state prison time, and the two redacted statements.

         In the statements, defendant denied culpability, but discussed in detail how easy it would be to plan a robbery at the check cashing store because the employees were so "lax" about security, and their patterns of behavior so well established. He added, "if it was me and I knew that she opened the door like that, I could plan. I know how to plan around shit[.]"

         Defendant raises the following points for our consideration:

POINT I
AFTER THE STATE'S WITNESS TESTIFIED THAT SHE DID NOT SEE DEFENDANT CALL [9-1-1] ON THIRD-PARTY PERPETRATORS, [DEFENDANT] CHOSE NOT TO TESTIFY, BUT COUNTERED ONLY WITH PROOF THAT HE HAD CALLED [9-1-1]. THE COURT ERRED BY PERMITTING THE PROSECUTOR TO THEN INFORM THE JURY THAT [DEFENDANT] HAD FOUR PRIOR FELONY CONVICTIONS. U.S. Const., Amends. V, XIV; N.J. Const., Art. 1, Pars. 1, 9, 10.
A. [D]efendant's [9-1-1] call was not hearsay because it was offered not for the truth of the statements therein but to disprove the testimony of the State's witness that . . . defendant had not called [9-1-1]. N.J.R.E. 806, which permits an opposing party to attack hearsay, was thus inapplicable.
b. Regardless of the applicability of N.J.R.E. 806, the trial judge should have excluded the prior convictions under N.J.R.E. 403.
C. Regardless of the applicability of N.J.R.E. 806, the trial judge should have excluded the prior convictions under N.J.R.E. 404(b).
D. The trial court's limiting instruction was inadequate because it contradicted itself on whether the jury could impermissibly use the prior convictions as propensity evidence, to conclude that the [9-1-1] ...

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