Opinion
DOCKET NO. A-4230-11T3 DOCKET NO. A-4231-11T3
09-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PATRICK J. KOMOROSKI, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSE L. JOURDEN, Defendant-Appellant.
Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant Patrick J. Komoroski (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Jesse L. Jourden (Steven E. Braun, Designated Counsel, on the brief). Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in A-4230-11 (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Wisloff, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent in A-4231-11 (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-06-00707. Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant Patrick J. Komoroski (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Jesse L. Jourden (Steven E. Braun, Designated Counsel, on the brief). Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in A-4230-11 (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Wisloff, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent in A-4231-11 (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jesse L. Jourden and co-defendant Patrick J. Komoroski appeal from their judgments of conviction arising from their attempt to rob a gas station attendant using a plastic toy gun and a knife. They were charged in an indictment with robbery, conspiracy to commit robbery, hindering their own apprehension, and possession of a weapon for unlawful purposes, among other offenses. A jury found them guilty of all charged offenses, except for robbery. Each was sentenced to an aggregate term of eight years' imprisonment, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
These are back-to-back appeals consolidated for the purpose of this opinion.
On appeal, defendants challenge the sufficiency of the State's evidence, the court's rulings on several motions made at trial, and their sentences. Jourden argues the following:
POINT IKomoroski argues:
THE IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE.
POINT II
THE TRIAL PROSECUTOR VIOLATED MR. JOURDEN'S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND HIS NEW JERSEY COMMON LAW RIGHT TO REMAIN SILENT BY COMMENTING UPON THE JURY "HAVING THE OPPORTUNITY TO HEAR BOTH SIDES" AND BY THE COMMENT THAT IF "THEY GOT THE WRONG GUYS, WHERE ARE THE GUYS WHO DID IT?" (PARTIALLY RAISED BELOW).
POINT III
THE TRIAL PROSECUTOR DENIGRATED THE DEFENSE DURING HIS SUMMATION (NOT RAISED BELOW).
POINT IV
THE TESTIMONY REGARDING THE 9-1-1 TAPE WAS INADMISSIBLE HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT V
OFFICER CHIBOOKIAN'S REFERENCE TO PROVIDING THE DEFENDANT WITH MIRANDA RIGHTS REFLECTED UPON MR. JOURDEN'S RIGHT TO REMAIN SILENT.
POINT VI
THE COURT SHOULD NOT HAVE ALLOWED THE TESTIMONY OF DETECTIVE LOMBARDI TO BE ADMITTED AS A PRIOR CONSISTENT STATEMENT.
POINT VII
THE MOTIONS FOR JUDGMENTS OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT VIII
COUNT ONE, ALLEGING ROBBERY, WHICH EVENTUALLY RESULTED IN A JURY FINDING OF GUILT TO THE LESSER INCLUDED OFFENSE OF CONSPIRACY, AND COUNT THREE, ALLEGING CONSPIRACY, SHOULD HAVE BEEN DISMISSED BY THE TRIAL COURT BECAUSE THE COUNTS WERE BASED ON ERRONEOUS EVIDENCE.
POINT IX
THE MOTIONS PURSUANT TO R.3:18-2 AND R.3:20-1 SHOULD HAVE BEEN GRANTED.
POINT X
THE COURT FOUND AGGRAVATING FACTORS THREE, SIX, AND NINE WITHOUT ADEQUATELY ARTICULATING ITS RATIONALE FOR FINDING THEM WHEN IT SENTENCED MR. JOURDEN AND THE SENTENCE IS EXCESSIVE.
POINT I
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CHARGE THE JURY WITH THE ELEMENTS OF ATTEMPTED ROBBERY. (NOT RAISED BELOW).
POINT II
DEFENDANT'S 5th AMENDMENT RIGHTS WERE VIOLATED WHEN THE PROSECUTOR COMMENTED ON DEFENDANT'S DECISION TO NOT TESTIFY AT TRIAL AND WHEN HE COMMENTED ON DEFENDANT'S FAILURE TO INTRODUCE EVIDENCE WHICH WOULD PROVE HIS INNOCENCE.
POINT III
THE TESTIMONY OF OFFICERS CHIBOOKIAN AND ROMASH THAT THEY GAVE DEFENDANT HIS MIRANDA WARNINGS AND HAD A DUTY TO TAKE STATEMENTS FROM SUSPECTS IMPROPERLY REFERENCED THE DEFENDANT'S RIGHT TO REMAIN SILENT IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS.
POINT IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT SHOWUP IDENTIFICATION OF THE DEFENDANT WITHOUT FIRST DETERMINING THE RELIABILITY OF THAT IDENTIFICATION. (NOT RAISED BELOW).
POINT V
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO REQUEST A PRETRIAL WADE HEARING. (NOT RAISED BELOW).
POINT VI
THE COURT AILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD AND IMPOSED AN EXCESSIVE SENTENCE.
We have considered all of these arguments and carefully reviewed the record. We affirm.
I.
We discern the following facts from the record developed at trial. On March 3, 2010, at about 8:30 p.m., an attendant was the sole employee working at a gas station adjacent to a shopping center. He was sitting in the attendant's booth waiting for customers and playing a game on his cell phone when he noticed two people approaching him from behind. The attendant described one as being a tall, thin man in a white sweatshirt or hoodie, and the other as being a short, heavyset man, wearing a blue jacket.
He got up and opened the sliding door of the attendant's booth. The tall man inquired whether the station was hiring. The attendant replied that he was not sure, but advised him to come inside the gas station office and put his name and number on a pad. The attendant then led the two men into the office. He handed the tall, thin man a pad, but the man refused to write down his information. The attendant gave him a business card instead, and said that if he wanted to, he could put his name on it or call the owner in the morning.
The short, heavyset man asked the attendant if he could have something to brush off his feet, as the area had just experienced a heavy snowfall. The attendant gave the short man a broom, which he carried outside. He then came back to the office and returned the broom to the attendant. At this point, the attendant noticed that the short man was holding a gun, at waist level with both hands. He stood "[p]artially in the doorway," blocking the attendant's exit. The tall man was standing behind the attendant, holding a four-inch pocket knife at waist level.
The attendant said he "froze and panicked." The short man cocked the gun back "like he was getting ready to put something in the chamber." As he did this, the attendant recognized the sound as that of a spring-loaded BB gun. He then asked, "What are you going to do, try to rob me with a BB pistol?" The short man answered, "Yes." The attendant then turned and "shoulder rushed" the two men, pushing them out of the office. They stumbled backward, and walked away from the gas station. The attendant "immediately" called 9-1-1 and reported the incident to police/emergency services dispatcher Henry Merz, who then relayed the information to the police.
Jefferson Township Police Department's Sergeant Frank Gerndt, Jr., Officer Al Chibookian, Officer Jeremy Romash, Detective Richard Geib, and possibly others arrived "within minutes." When they arrived, the attendant recounted the incident to Officer Chibookian, and indicated the direction that the suspects were headed. The officers then searched the surrounding area, particularly the area behind the shopping center.
The area immediately behind the center is heavily wooded with "a lot of underbrush, [sticker] bushes, poison ivy" and evergreens. A stream runs along the back of the gas station and the shopping center. The area was also covered in heavy snow at the time. It is not a place that people commonly frequent.
Sergeant Gerndt drove to the back of the shopping center, searched the area, and found "an individual standing up about chest level" and "another individual that was sitting on the ground next to him." Gerndt said that the second individual sitting on the ground fit the suspects' description that he had been given. He immediately told them not to move, announced that he was the police, and ordered them to show him their hands. He then notified the other officers, who came to the scene, patted down the suspects, and secured the area.
The police picked up and drove the attendant to the area behind the shopping center. He positively identified the suspects based on what they were wearing. He estimated that five to ten minutes had passed from the time of the initial incident to his identifying the suspects. He also filled out a statement recounting the incident.
The two suspects were Mirandized, arrested, and brought back to headquarters for questioning. Jourden was later identified as the tall, thin suspect, and Komoroski as the short, heavyset suspect.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The officers also canvassed the area, and recovered two "weapons" in the snow: a silver folding knife, and a gun. Upon inspection, it was discovered that the gun was a plastic toy air gun that had been painted over with black paint to look real.
A grand jury returned an indictment charging both defendants with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2) (count one); first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count three); third-degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b)(1) (count five); and third-degree hindering another's apprehension, N.J.S.A. 2C:29-3(a)(1) (count six). Defendant was charged individually with third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count seven), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight). Co-defendant was individually charged with fourth-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(e) (count four).
At their trial, the State presented testimony by the attendant; Officers Gerndt, Chibookian, Romash, and Geib; dispatcher Merz; fingerprinting analysis expert Detective Edward Crooker; firearms expert Detective Craig D. Brooks; the officer initially assigned to the case, Detective Chris Lombardi; and volunteer firefighter Michael Dougherty. Defendants presented no testimony or evidence.
At the close of the State's case, defendants moved for a judgment of acquittal, and after closing arguments, defendants moved for mistrial. The court denied both motions. The jury returned a unanimous verdict finding defendants not guilty of robbery (count one), but guilty of all the remaining charges.
II.
Defendants challenge the admission of testimony about the attendant's out-of-court identification of them. At trial, they moved to suppress the identification because it was unduly suggestive and unreliable. The court ruled that the identification was admissible, pursuant to State v. Carter, 91 N.J. 86 (1982), because "this type of confrontation promotes fairness by allowing a viewing while a witness' mental image of the perpetrator is still fresh." We agree with the court's reasoning, especially because there was no evidence that the police officers' conduct was unduly suggestive.
The admission of evidence "is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968)(internal citations omitted). A court does not abuse its discretion where it admits evidence of an out-of-court identification, if the procedure followed "was [not] so unnecessarily suggestive and conducive to irreparable mistaken identification that [a defendant] was denied due process of law." Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967). In deciding whether to admit identification evidence, New Jersey courts apply a "two-step analysis [which] requires the court first to ascertain whether the identification procedure was impermissibly suggestive and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006).
This test was modified by State v. Henderson, 208 N.J. 208 (2010), in which the court held that all relevant system and estimator variables bearing on the identification should be explored in a pretrial hearing, and that the court must provide appropriate jury instructions for eyewitness identification. Id. at 218-19. However, Henderson's ruling became effective after defendants' trial. Id. at 302.
As to the first prong, our courts have recognized that "one-on-one showups are inherently suggestive . . . because the victim can only choose from one person, and, generally, that person is in police custody." Id. at 504. However, a showup identification is not, in and of itself, automatically deemed impermissibly suggestive. Ibid. That suggestiveness is enhanced where the police or others have told the witness information that could "influence[] the [witness] to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Id. at 504-06 (finding showup was impermissibly suggestive when officers brought car-jacking victim to hospital for identification and said the suspect was found in victim's car) (citing State v. Williams, 545 P.2d 938, 939 (Ariz. 1976)) (showup impermissibly suggestive when "[t]he victim was told that she was to observe a man who had been apprehended driving her car"); (State v. Davis, 767 A.2d 137, 142-43 (Conn. App. Ct. 2001) (showup impermissibly suggestive when officer told the victim, "We got him, we got him . . . . We had two boys. You got to tell which one, who it is.")); but see id. at 506 (citing United States v. McGrath, 89 F. Supp. 2d 569, 581 (E.D. Pa. 2000) (showup not impermissibly suggestive where victim observed suspect in handcuffs, seated in patrol car, and the officer's comment merely informed witness that a suspect had been apprehended)).
In assessing the second prong, reliability, the court "must consider the totality of the circumstances surrounding the identification procedure," id. at 506, and weigh the relevant factors "against the corrupting effect of the suggestive procedure." State v. Madison, 109 N.J. 223, 240 (1998). Specifically, the court must consider
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
[Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).]
The timing of a showup is of significant importance as the risk of misidentification may be lower if it is conducted immediately after the crime. Carter, supra, 91 N.J. at 130-31 (citing Stewart v. United States, 418 F.2d 1110, 1113 (D.C. Cir. 1969)); see also Henderson, supra, 208 N.J. at 259 ("[T]he benefits of a fresh memory seem to balance the risks of undue suggestion."); State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding witness' showup identification ninety minutes after observation).
In this case, the attendant testified that he observed defendants at the scene of their apprehension about five to ten minutes after the crime, there was no evidence that the officers described the suspects to him while they were escorting him to the scene or otherwise influenced the attendant's identification of defendants. The attendant had ample opportunity to view defendants based on their interaction at the gas station minutes before their apprehension, while he was being very attentive during the attempted robbery and he did not express doubt when he later identified defendants. We are therefore satisfied that the court did not commit any error and properly exercised its discretion by admitting testimony about the attendant's out-of-court identification.
Jourden also argues that, based on inconsistencies in the attendant's accounts of the crime (at trial, the 104 hearing, and his police statement), his memory was faulty and therefore his identification was unreliable. However,
[d]efendant's objection goes to the credibility of [the witness'] identification rather than to any significant due process problems. It is really a challenge that bears on the proper weight to be accorded his testimony. Impeachment of credibility is best dealt with on cross-examination, [Carter, supra, 91 N.J. at 131.]
III.
Komoroski claims he was denied effective assistance of counsel, because his trial counsel failed to request a pre-trial hearing on the admissibility of the attendant's identification evidence, pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Such claims are not normally raised on direct appeal as they usually involve facts outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). However, we may consider such claims on direct appeal where, as here, "the trial itself provides an adequately developed record upon which to evaluate [a] defendant's claims." State v. Castagna, 187 N.J. 293, 313 (2006); see also State v. Allah, 170 N.J. 269, 285 (2002).
We assess ineffective assistance claims under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), that was later adopted by our courts in State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Despite the order of the test, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, supra, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 699 (1984). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Ibid.
Komoroski's ineffective assistance claim is therefore without sufficient merit to warrant further discussion, R. 2:11-3(e)(2), as Komoroski cannot satisfy the second prong of the standard, based on our upholding the appropriateness of the court's admission of the challenged identification testimony.
IV.
Defendants argue that the trial court improperly denied their motions for a mistrial. In their motions, they claimed that during the prosecutor's summation, he improperly highlighted defendants' silence at trial, in violation of their rights under the Fifth and Fourteenth Amendments, and the New Jersey common law right to remain silent. Jourden adds that the prosecutor's summation also improperly disparaged defendants' counsel. We disagree.
Defendants moved for a mistrial based on the following comments in the prosecutor's summation (emphasis added):
Now, ladies and gentleman, when you were questioned by the Judge, myself, Mr. Kelly and Mr. Kenney, you told us that you thought you would be a good juror in this case. And some of you gave lengthier reasons than others, but most of you said I can be fair
and impartial, and most of you said, you know, I have experience in hearing both sides. Well, ladies and gentlemen, you had an opportunity to hear both sides. And you're going to be asked to go into that jury room in just a few minutes and consider the law and consider all of the evidence that was presented.
. . . .
Now, ladies and gentlemen, either no robbery occurred or these aren't the right guys. Those are the defendants' claims. Well, if they're not the right guys, then they were in the wrong place at the wrong time, okay? They just happened to be the two guys who were standing in the brook immediately after a robbery is reported in an area where nobody really stands, okay? So, if they got the wrong guys, where are the guys who did it? All the officers said that there was nobody coming down this way, nobody coming down this way, nobody found in the area of Sunset Lane, okay?
Defendants argued that the above comments improperly highlighted their decisions not to testify or to call witnesses. The court denied the application, stating:
I think it was fair comment, certainly, Where are the guys? Where did they do it? In regard to the identification, as [the prosecutor] has just indicated. In regard to "you've heard both sides," certainly the jurors were initially advised that the defendants are presumed innocent and must be found not guilty of the charge, unless each and every essential element of a charge is proved, and that the burden of proving each and every element beyond a reasonable doubt rests with the prosecution, and that burden never shifts to the defendant, and that a defendant in a criminal case has no
obligation or duty to prove their innocence. And then I asked each juror initially whether they would have any difficulty in following these principles and they indicated that they don't — would not have any difficulty following these principles and they would.
We will not disturb a trial court's ruling on a motion for mistrial absent an abuse of discretion that results in a manifest injustice. State v. Jackson, 211 N.J. 394, 407, 413 (2012). Our review of the record does not reveal any abuse of the court's discretion in its denial of defendants' motions because we are satisfied that none of the prosecutor's comments were improper.
Prosecutorial misconduct requires reversal only if "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In deciding this type of claim, a court must first inquire whether the prosecutor's conduct was "clearly and unmistakenly improper"; then, if the prosecutor's conduct "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. Where the alleged misconduct is based on the summation, any improper comments must be considered in the context of the summation as whole. Carter, 91 N.J. at 107.
"When a prosecutor's comments indicate or imply a failure by the defense to present testimony, the facts and circumstances must be closely scrutinized to determine whether the defendant's Fifth Amendment privilege to remain silent has been violated and his right to a fair trial compromised." State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001) (citing State v. Sinclair, 49 N.J. 525, 549 (1967); State v. Pickles, 46 N.J. 542, 579 (1966) (finding improper a prosecutor's statement — "[I]n every criminal case, there is only one person that can furnish answers to some questions, and that is the defendant. . . . It was the defendant only that was there and the defendant only can give us certain answers[,]" - because it "plac[ed] the defendant in a position where he [had to] testify in order to avoid an adverse inference on the part of the jury."); State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991)); State v. Persiano, 91 N.J. Super. 299, 301 (App. Div. 1966) (reversing a conviction where the prosecutor told the jury, "It is a very simple issue here — one way. Normally, we have two sides to a story. Here, we have one side. There is no defense."). Moreover, even where a prosecutor's comments are deemed improper, the trial court may provide curative instructions to alleviate any prejudice. State v. Jones, 346 N.J. Super. 376, 383 (2003).
In this case, the challenged comments, "you had an opportunity to hear both sides," and the "where are the guys?" comment did not highlight defendants' decision to not present evidence. Persiano, supra, 91 N.J. Super. at 301 ("The clearly inferable import of the prosecutor's comment was . . . that it was not enough for defendant to impugn the credibility of State's witnesses without himself going on the stand to deny his complicity. This was undoubtedly the impression the jury would derive from such comments.") (citing State v. Lanzo, 44 N.J. 560, 563 (1965)). Neither comment impressed upon the jury that defendants had to do more in their defense. Rather, the prosecutor merely highlighted that there was no plausible alternative to the State's version of what happened at the gas station that night.
After denying the motion for mistrial, the court nonetheless offered to give curative instructions to address defendants' concerns. Defense counsel declined.
Jourden also challenged the following comments:
Now, I have to commend both of these attorneys because they have done a good job deferring attention away from what really happened on that day. They want to direct your attention to [the attendant] and what [he] has done in his past.
Now, the Judge told you that you can use that to affect his credibility. And ladies and gentlemen, I told you when we
were here on day one, I told you that he was not a Boy Scout. I told you that he was a gas station guy, that works at a number of gas stations. And he's had brushes with the law. But ladies and gentlemen, I didn't get to pick [the attendant] . . . . It was this defendant and that defendant who picked him. They picked him when they decided that they were going to rob that gas station that night. I don't get to choose what witnesses I put on. I only get to put on witnesses that have relevant information and relevant testimony to this case.
Jourden argues that the above comments painted the defense attorneys as "devious people who are not interested in the truth because they are diverting attention away from what really happened." As this issue was not raised below, he also argues on appeal that the comments were plain error - "clearly capable of producing an unjust result" at trial. R. 2:10-2.
"Consistent with their obligation to seek justice, prosecutors . . . cannot cast unjustified aspersions on defense counsel or the defense." State v. Lazo, 209 N.J. 9, 29 (2012) (citing State v. Frost, 158 N.J. 76, 86 (1999)); see State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991) ("It is improper to demean the role of the defense attorney."). "The prosecutor may not impugn the integrity of a particular lawyer or that of lawyers in general, without basis in fact, as a means of imputing guilt to the defendant." Pindale, supra, 249 N.J. Super. at 286 (citing United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980)). Thus, it was improper for a prosecutor to say, "the defense's role in this case is to try to confuse you." Ibid. However, a prosecutor's comments or denunciations "afford no ground for reversal" if based on the facts of the case and the reasonable inferences drawn therefrom. State v. Johnson, 31 N.J. 489, 510 (1960).
During cross-examination at the trial, defense counsel impeached the attendant's credibility with his criminal record. The prosecutor's comments in his summation were directed toward rehabilitating the attendant and to highlight defense counsel's strategy. We are satisfied that they were not intended to disparage the defense. Therefore, the comments were proper.
V.
Jourden argues that the court improperly admitted the tapes of the attendant's call to 9-1-1, because they were inadmissible hearsay. We disagree.
Before admitting the tapes, the court conducted a Rule 104 hearing to determine the admissibility of the attendant's taped conversation with 9-1-1 dispatcher Merz. Notably, the tape had only recorded Merz' side of the conversation, and he acknowledged that this was unusual. As to his conversation with the attendant, he testified that,
I remember him. He was — I don't think he was real excited but he was — seemed upsetMerz confirmed that while listening to the attendant, he was also repeating the attendant's words to the officers, including his description of defendants.
and he said two guys just tried to rob him, and I asked him what kind of weapons, and he said a knife and a gun.
In its decision, the court also considered the attendant's earlier testimony that he had called 9-1-1 "immediately," within thirty seconds of the robbery attempt. The court ruled that his statements were admissible as an excited utterance, while Merz' repetition was a present sense impression.
As previously discussed, we review a trial court's evidentiary rulings for abuse of discretion. Brown, supra, 99 N.J. Super. at 27. We again find no abuse by the court here.
Out-of-court statements used to prove the truth of the matter asserted are generally inadmissible at trial. N.J.R.E. 801, 802. However, the court may permit such evidence to be admitted under certain exceptions. N.J.R.E. 802. Additionally, under the "double hearsay" rule, a hearsay statement within another hearsay statement is not barred under the rule against hearsay if each statement conforms to an exception to the rule. N.J.R.E. 805.
The attendant's hearsay statements were admissible as an "excited utterance," defined as,
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.
[N. J.R.E. 803(c)(2).]
"In deciding whether there was an opportunity to fabricate or deliberate, a court should consider 'the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance.'" State v. Long, 173 N.J. 138, 159 (2002) (quoting State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1405, 25 L. Ed. 2d 675 (1970)).
An attempted robbery is a "startling event." Moreover, while Merz described the attendant as not "real excited" but upset, his choice of words did not mean that the attendant was not "excited" within the meaning of the rule. Finally, the attendant testified that he called the police immediately after the incident. His statements therefore fall within the "excited utterance" exception.
As to Merz' own statements on the 9-1-1 tape, they are admissible as a "present sense impression," defined as:
A statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition andMerz did not have opportunity to deliberate or fabricate his statements, because they were made contemporaneous to the attendant's phone call. They too were properly admitted.
without opportunity to deliberate or fabricate.
[N .J.R.E. 803(c)(1).]
VI.
Defendants argue on appeal that Officer Chibookian's testimony that he "takes statements," and Officer Romash's testimony that he Mirandized defendant, improperly highlighted defendants' right to remain silent. During the trial, Officer Chibookian stated that one of his duties was to "take statements," and that he had taken the attendant's statement. Officer Romash testified that he had Mirandized defendants.
Based on this testimony, defendants moved for a mistrial. The court denied the motion. We agree with that result as we again find that in so deciding the court did not abuse its discretion. Jackson, supra, 211 N.J. at 407, 413.
"A prosecutor should not either in subtle or obvious fashion draw attention to a defendant's failure to testify." Engel, supra, 249 N.J. Super. at 382. In this case, Officer Chibookian's testimony described his own duties and actions with respect to the attendant, as opposed to defendants. Officer Romash was describing how he had made an arrest. Neither Officer's testimony improperly reflected on defendants' not testifying or providing a statement.
VII.
Jourden argues that the court should not have allowed certain testimony by Lombardi as an exception to the rule against hearsay. We disagree.
At trial, defense counsel highlighted the inconsistences in the attendant's account of the robbery given at different points in time. Specifically, the attendant testified on direct examination that at one point in the encounter, defendants tried to cover their faces with scarves. However, on cross-examination, he testified that he had never before mentioned that defendants were covering their faces. As a result, the State called Lombardi to testify that the attendant had told him on May 11, 2011 that the tall defendant had tried to cover his face. Over defendant's objection, the trial court ruled that the testimony was admissible as a prior consistent statement. We agree and find that the court properly exercised its discretion in permitting the testimony. Brown, supra, 99 N.J. Super. at 27.
As N.J.R.E. 607 provides in pertinent part,
[F]or the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsicA prior consistent statement may be admitted as an exception to the rule against hearsay, N.J.R.E. 803(a)(2):
evidence relevant to the issue of credibility. . . . A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.
A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement . . . is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.
The attendant's prior statement consistent with his testimony was admissible under Rule 607. Officer Lombardi's testimony as to the attendant's statement was admissible under Rule 803(a)(2) because it rebutted the inference raised in his cross-examination that he testified untruthfully.
VIII.
Jourden also argues that the court erred in denying his motions for judgment of acquittal on all counts, made before, Rule 3:18-1, and after the verdict, Rule 3:18-2, and also erred in denying his motion for a new trial, Rule 3:20-1. In support, he argues primarily that the jury's finding defendants guilty of conspiracy to commit robbery is inconsistent with its acquittal on robbery. He also challenges the sufficiency of the State's evidence as to all other counts.
The standard for resolving the motion brought under Rule 3:18-1 and -2 is the same:
On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.
[State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011) (quoting State v. D.A., 191 N.J. 158, 163 (2007)) (internal quotations omitted); see also State v. Reyes, 50 N.J. 454, 458-59 (1967).]
Rule 3:20-1 provides that the trial judge may grant a defendant a new trial "if required in the interest of justice," but a "judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." "There is no miscarriage of justice when any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Jackson, 211 N.J. 394, 413-14 (2012) (internal citations and quotation marks omitted).
Applying the same standards used by the trial court, we will not disturb a trial court's ruling on a motion for judgment of acquittal or a new trial, absent a clear showing of abuse of discretion, see State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004), or of a miscarriage of justice. R. 3:20-1. Applying those standards here, we are satisfied that the court properly denied defendants' motion for judgment of acquittal. Viewing the State's evidence in its entirety, and according the State the benefit of all reasonable inferences, a jury could find that defendants were in the course of committing theft, and that they had purposely put the attendant in fear of serious bodily injury. Similarly, as to the second count of robbery, a reasonable jury could find defendants guilty of using force on the attendant, by displaying their "weapons."
As to the conspiracy charge, a reasonable jury could find defendants guilty beyond a reasonable doubt, because their interaction with the attendant indicated an agreement to commit robbery. Specifically bearing on this point was the attendant's testimony that one defendant initially inquired about a job, but refused to provide his information — indicating that the inquiry was a ruse. Additionally, defendant brandished a knife while co-defendant brandished a "gun." The gun had been painted black and therefore, drawing an inference in the State's favor, this indicated an intention to make the gun look real.
As to the hindering, defendants were found in a wooded area behind a shopping center for no apparent reason, and the weapons were found in the snow. A jury could reasonably infer, therefore, that they were attempting to hinder their own and each other's apprehension, and to that end, had attempted to discard or conceal the weapons.
Finally, regarding the weapons charges, the attendant testified that defendant brandished a knife at him, while his co-defendant brandished a "gun." Additionally, he asked if they were attempting to rob him, and co-defendant replied, "Yes." Based on this testimony, a reasonable juror could infer that defendant unlawfully possessed the knife, and with the purpose of using it against the attendant.
IX.
Jourden also argues that the court should have dismissed counts one (first-degree robbery) and three (conspiracy to commit robbery) of his indictment because they were based upon erroneous grand jury testimony given by the State's witness, Detective Lombardi.
Detective Lombardi testified to the following before the grand jury:
Q. Shortly thereafter, did these two individuals attempt to carry out a robbery, and by that I mean, did they brandish weapons and ask for money from the victim?
A. Yes, they did.
However, according to Jourden, at the time of Lombardi's grand jury testimony, he was not aware that codefendant had answered "Yes" to the attendant's question "What are you going to do, try to rob me with a BB pistol?" As a result, defendant claims that the indictment charging robbery and conspiracy to commit that crime should have been dismissed. We disagree because in deciding whether to dismiss an indictment, the focus is only on the testimony presented to the grand jurors and not at a later trial.
The decision to grant or deny a motion to dismiss an indictment is entrusted to the sound discretion of the court, Trade Waste, supra, 96 N.J. at 18-19. A charge should be dismissed only upon a "palpable showing of fundamental unfairness," or "where conduct of the prosecutor amounted to an 'intentional subversion' of the grand jury process." Engel, supra, 249 N.J. Super. at 360 (citing State v. Murphy, 110 N.J. 20, 35 (1988). An indictment should be dismissed only on the "clearest and plainest grounds." State v. Matulewicz, 115 N.J. 191, 196 (1989) (citing State v. McCrary, 97 N.J. 132, 144 (1984)).
A grand jury indictment requires a prima facie showing that the accused has committed the crime, State v. Simon, 161 N.J. 416, 439 (1999) (citing State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984)), meaning there is probable cause to prosecute. Helmy v. City of Jersey City, 178 N.J. 183, 191 (2003). However, "the grand jury's role is not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced." State v. Hogan, 144 N.J. 216, 235 (1996). Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury. Ibid.
"Grand jurors are instructed to consider both the evidence presented by the State and the 'reasonable inferences' from that evidence[.]" In re State ex rel. A.D., 212 N.J. 200, 219 (2012). Judicial review of a grand jury's application of this instruction involves evaluation of the evidence and the rational inferences drawn from that evidence in the light most favorable to the State to determine whether a grand jury could reasonably believe that a crime occurred and that the defendant committed it. Ibid. (internal citations and quotation marks omitted). However, the evidence upon which a grand jury relies in returning an indictment does not have to rise to that which would be necessary to sustain a conviction. Id. at 219-20. It must only be sufficient for the grand jury to "'determine that there is prima facie evidence to establish that a crime has been committed.'" Id. at 200 (quoting N.J. Trade Waste Ass'n, supra, 96 N.J. at 27). But, "in establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Hogan, supra, 144 N.J. at 238. We are satisfied that the court did not abuse its discretion in denying defendants' motion to dismiss the indictment. There is nothing in the grand jury testimony to indicate that the grand jurors were deceived. Also, there was sufficient evidence to indict defendants, even without the challenged testimony.
X.
Defendants both argue that the court did not adequately articulate its rationale for finding aggravating factors three, six, and nine at their respective sentencings, and that their sentences are excessive.
Appellate review of sentencing is limited to three inquiries:
[The court] can (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating
factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Roth, 95 N.J. 334, 364-65 (1984).]
In Jourden's case, we find that his eight-year prison term is within the permissible range for a second-degree offense. N.J.S.A. 2C:43-6(a)(2). Also, in its sentencing finding, the court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), six, (6) (extent and severity of prior offenses), and nine, (9) (need for deterrence). These findings were based on Jourden's substance abuse issues and prior convictions. The court found no mitigating factors, and in fact explicitly rejected factor two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). Because Jourden had been holding a knife, the court held that he could not claim that he did not contemplate that he might cause or threaten serious harm. The trial court's findings were thus based on competent, credible evidence in the record.
Komoroski had two prior convictions within the last ten years, and was therefore eligible for an extended term. N.J.S.A. 2C:44-3(a). At his hearing, the prosecution moved to have Komoroski sentenced as a persistent offender and asked the court to impose a fifteen-year prison term; or, alternatively, if the court found Komoroski should not be sentenced in the extended term range, the prosecution asked the court to impose a ten-year prison term. The court in its discretion denied the prosecution's motion and sentenced him to eight years' imprisonment, within the permissible range for a second-degree offense. N.J.S.A. 2C:43-6(a)(2).
For Komoroski as well, the court found aggravating factors three, six, and nine, based on his substance abuse issues and prior convictions. The court found no mitigating factors, and explicitly rejected mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (co-defendant's conduct neither caused nor threatened serious harm), and two. The court found that Komoroski's conduct caused harm, which he must have contemplated, because the attendant initially believed the gun was real and panicked. These findings were also based on competent, credible evidence in the record.
XI.
Defendants also ask that their conspiracy and weapons convictions be reversed in light of our recent holding in State v. DeHart, 430 N.J. Super. 108 (App. Div. 2013), which required a court to charge attempt where a defendant did not complete a robbery. In DeHart, we held that, "where there was no evidence of an actual theft, the court was required to instruct the jury on the law of attempt as an element of robbery," id. at 119, and the trial court's failure to include the instructions constituted plain error. Id. at 119-20. We also held that that error also infected the court's subsequent instruction that defendant's "unlawful purpose in possessing the weapon" was to use it "in the course of committing a theft." Id. at 120. That holding, however, cannot be applied to this case as defendants were not convicted of robbery. By definition, "conspiracy is a separate and distinct crime from the substantive offense embraced within [defendants'] unlawful agreement [to commit a robbery]," State v. Bontempo, 170 N.J. Super. 220, 250 (App. Div. 1979), regardless if the crime is actually completed. Defendants' argument regarding the court's charge as to conspiracy is therefore without any merit. R. 2C:11-3(e)(2)
At sentencing, their weapons charges were merged with the conspiracy counts. They were effectively sentenced, therefore, only for conspiracy and hindering — neither of which are implicated by DeHart. Therefore, once again, the trial court's alleged error in omitting the charge does not warrant reversal in light of the result.
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Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION