Opinion
DOCKET NO. A-1158-13T3
04-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEXANDER LARA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-0912. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Alexander Lara appeals from a judgment of conviction entered after a jury found him guilty of two counts of robbery and six related offenses, and a judge sentenced him to an aggregate twenty-four-year prison term. He presents the following arguments:
POINT I: THE OUT OF COURT IDENTIFICATION PROCEDURE UTILIZED BY POLICE WAS IMPERMISSIBLY SUGGESTIVE AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT II: IT WAS ERROR FOR THE COURT TO DENY DEFENDANT'S MOTION FOR [A] MISTRIAL.
POINT III: THE CONDUCT AND COMMENTS OF THE TRIAL JUDGE FOLLOWING THE JURY NOTE THAT THEY HAD REACHED A STANDSTILL WAS IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV: THE OFFENSES OF CONSPIRACY TO COMMIT ROBBERY WHILE ARMED AND ROBBERY [SHOULD] HAVE MERGED AT SENTENCING (NOT RAISED BELOW).
POINT V: THE CONSECUTIVE SENTENCES IMPOSED UPON DEFENDANT WERE EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED (NOT RAISED BELOW).
He also presents the following arguments in his pro se supplemental brief:
POINT I: THE JURY INSTRUCTIONS FAILED TO DEFINE "ATTEMPTED THEFT" [AS] AN ESSENTIAL ELEMENT OF THE CHARGED OFFENSE OF ROBBERY, DEPRIVING THE DEFENDANT [OF] HIS RIGHT TO A FAIR TRIAL.Having considered defendant's arguments in light of the record and applicable legal principles, we affirm in part, reverse in part, and remand for correction of the judgment of conviction.
POINT II: IT WAS ERROR [FOR] THE COURT TO INTRODUCE A UNKNOWN EVIDENCE AT TRIAL THAT WAS NOT PART OF THE CASE.
I.
In April 2011, a Camden County Grand Jury charged defendant and co-defendant Fred Belen in a twenty-six count indictment with six counts of first-degree robbery, five counts of second-degree unlawful possession of a handgun, five counts of second-degree possession of a weapon for an unlawful purpose, seven counts of fourth-degree aggravated assault, and one count each of second-degree robbery, third-degree terroristic threats, and first-degree conspiracy to commit armed robbery. On co-defendants' motion for severance of each robbery count, the trial court severed counts fourteen to twenty-five from the other counts because, among other reasons, "[t]he offenses charged in [fourteen] through [twenty-five] are similar in character in that they all occurred on the evening of May 31st within the span of one hour [in] adjacent public parks in Camden County." The court also ordered that count twenty-six, conspiracy to commit robbery, be tried with the other counts. With the prosecutor's agreement, the court dismissed count twenty-five, fourth-degree aggravated assault, because it duplicated another count.
This appeal was calendared back-to-back with the appeal of co-defendant Belen, also decided today. State v. Belen, No. A-0775-13 (App. Div. April 12, 2016).
Defendant and co-defendant's jury trial took place in November and December 2012. The jury found defendant guilty on eight counts: two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1), (counts eighteen and twenty-two); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts twenty-one and twenty three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count nineteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count twenty); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count twenty-four); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1(a)(1) (count 26). The jury found defendant not guilty on the remaining counts.
During defendant's sentencing proceeding, the court merged into the robbery counts the two aggravated assault counts, possession of a weapon for an unlawful purpose, and terroristic threats. The court sentenced defendant: on the robbery counts, to consecutive twelve-year prison terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on the unlawful possession of a weapon count, to a concurrent six-year prison term with three years of parole ineligibility; and on the conspiracy count, to a concurrent ten-year prison term subject to NERA. The court also imposed appropriate penalties and assessments.
The State developed the following proofs at trial. On the night of May 31, 2010, between approximately ten and eleven o'clock, two men driving an SUV committed three robberies, the first in Newton Lake Park in Collingswood, the second and third in Cooper River Park in Cherry Hill Township. The parks were approximately one or two miles apart. Only one victim identified either of the perpetrators, and that victim made positive identifications at a showup on the night of the crimes and at trial more than one and one-half years later.
Law enforcement officers arrested defendant and the co-defendant on the night of the robberies. The officers seized evidence from the Ford Explorer defendant and the co-defendant were riding in when they were arrested. The evidence included, among other things, photographs of the Explorer, a handgun and ammunition, masks, gloves, and currency. The officers also seized the t-shirt defendant was wearing.
The first victim was robbed in Newton Lake Park while walking his dog. He was walking on a sidewalk when a two-tone Ford Explorer, white on top but darker on the bottom, pulled alongside the curb and stopped. According to the victim, "[t]hat's when they approached me, that's when they, you know, the guy took the gun and demanded . . . my money." The victim did not recall whether the driver or passenger wielded the gun, but the gun-wielding robber came within two feet and pointed the gun at him. When the victim said he had no money, the other man came from behind and tried to grab him, but he threw himself to the ground and started kicking and screaming. The man with the gun tried to shoot him by "pulling the chamber[.]" The gun did not fire. A car came along the road and apparently scared the perpetrators; they left without getting any money from the victim.
After the perpetrators fled, the victim saw two people walking their dog, approached them, and asked to use a cellular phone. He called the police. The parties stipulated a 9-1-1 call reporting a robbery at Newton Lake Park was received by a Camden County dispatcher on May 31, 2010, at 10:12 p.m.
When the victim testified at trial, he identified a handgun that looked similar to the one used in the robbery; identified a photograph of an SUV as the vehicle the two perpetrators were in when they pulled along the curb; and testified the perpetrators were approximately five feet, nine inches tall and weighed approximately 170 or 180 pounds. He did not identify defendant or the co-defendant at trial.
Camden County Park Police Sergeant Richard Watson received a dispatch at 10:12 p.m. concerning a crime in Newton Lake Park, which was in his jurisdiction. He arrived at the park within approximately ten minutes of receiving the dispatch and spoke with the first victim. The victim recounted the details of the robbery and said the perpetrators left in a two-tone Explorer, white on top, "and like a gray on the bottom." The sergeant relayed the information to other patrol units.
While speaking with the first victim, Sergeant Watson was dispatched to the Lobster Trap's parking lot on North Park Drive within the boundaries of Cooper River Park, where another incident was reported to have occurred. The sergeant would eventually participate in arresting the suspects and transporting defendant to be processed.
The second victim was robbed in Cooper River Park after he had parked his car at a motel and was walking along North Park Drive to the Lobster Trap. After arriving at approximately 9:55 or 10:00 p.m., he walked along the sidewalk "[a]bout a quarter mile" toward a restaurant and was talking on his cellular phone with a friend when a white Ford Expedition or Explorer came toward him. Suddenly, a man jumped out of the vehicle's passenger side, pressed a gun to his head, and said "give me whatever you have." The man was wearing a striped polo t-shirt, which the second victim identified, along with a photograph of the white Ford Explorer, when he testified at trial. The victim handed over his money, the robber took a key from the victim's pocket and threw it on the grass, and the robber then returned to the vehicle, which drove away, returned a short time later, and then went toward Route 130. The victim used his cellular phone to telephone police, who arrived on the scene within five or ten minutes.
In addition to the call to dispatch at 10:12 p.m., evidence of two other calls to dispatch was presented at trial. One of the other calls was placed at 10:31 p.m. The time of the third call is not in the record. The record is unclear as to which of the second and third calls was made by the second victim, and which was made on behalf of the third victim.
A short time after the police arrived, they left, but later returned. After returning, an officer drove the second victim "somewhere around Route 130 on the bridge[,]" and then about a half mile away from that location, where the second victim was shown two men. The victim identified one man as "the one that put that gun on my head" but did not identify the other man as being present at the robbery. During the trial, when asked if the man he identified at the showup as the robber was in court, the second victim identified defendant. The second victim also identified the gun that had been introduced into evidence as similar to the one the robber pointed at him.
Before the second victim testified at trial, the court conducted a Wade hearing. See United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The only witness, Camden County Park Police Chief Robert D. Colangelo, testified the second victim identified co-defendant, but not defendant, at the showup.
A third victim was robbed while packing his car after a barbecue in Cooper River Park. The third victim had been at a barbecue at the park with a friend, the friend's wife, the friend's cousin, and others. The third victim was putting his belongings into the backseat of his car, which was parked on the sidewalk adjacent to where they had been barbequing. He noticed a white SUV pull alongside him and stop a few feet away, heard the door open, and then heard a voice. The third victim turned around to face a man pointing a gun at him saying, "[g]ive me your money." The robber was within arm's reach, pointing the gun at the third victim's head. As the victim reached for his money, the robber said he was taking too long and shoved him. The victim fell, got up, and heard three clicks as the robber squeezed the trigger three times. The robber was wearing a ski mask, "like a light green to almost like a gray color," and it had holes for the eyes and mouth. When the victim testified at trial, he identified a ski mask that looked similar in color, but the eye holes looked bigger.
The third victim told police the gun the perpetrator was holding was silver or chrome in color. He identified the gun during his trial testimony. He also identified a photograph of what appeared to be the Explorer. The third victim described the perpetrator as slightly taller than five feet, six inches tall, olive-skinned, and a little stockier than 155 pounds. He was unable to see the license plate on the SUV. He did not identify either defendant or the co-defendant at trial.
When the third victim was robbed, his friend was sitting in a nearby car and witnessed the crime. His friend got out of the car and said, "I got a gun, too, m***** f*****." The robber ran back to the Explorer, entered through the passenger side door, and he and the driver drove off toward a dead end. A short time later, they drove by again, going in the opposite direction. The third victim's friend testified at trial and identified a gray mask that appeared to be the one worn by the robber. The friend testified the robber also wore gloves.
A man in the park heard the third victim scream that he had been robbed at gunpoint and saw him point at the SUV as it drove away. The man got in his car and eventually gave chase. He was able to see a person driving and a person in the passenger side of the SUV. He was unable to keep up with the SUV, which at times was going eighty-five miles per hour. He was also unable to get a license plate number. He eventually saw a Sheriff's van and told its occupants where he had last seen the Explorer. He thought the passenger was approximately his size, six feet, one inch tall and 265 pounds, but he could identify neither the driver nor the passenger.
Meanwhile, Sergeant Watson, who had been speaking with the first victim in Newton Lake Park, responded to the report of a second robbery near the Lobster Trap in Cooper River Park. As he drove onto North Park Drive he saw an Explorer matching the description of the suspect vehicle stopped at a red light on North Park Drive. He radioed for assistance. When the light turned green, the sergeant continued to follow the Explorer. When the Explorer proceeded over a ramp on Route 130, Sheriff's Officer James A. Pacetti and his partner, India Gibson, who had received the broadcasts of the robberies, spotted the Explorer. When the Sheriff's Officers were next to the Explorer, they forced it into the guard rail on the ramp. The Sheriff's Officers and Sergeant Watson approached the Explorer, weapons drawn, and were soon joined by Patrolman Cranmer. The police arrested the driver, defendant, and the passenger, the co-defendant. The Explorer was registered to defendant. Sergeant Watson recorded in his report that defendant and the co-defendant were arrested at 10:46 p.m. Sergeant Watson transported the co-defendant from the arrest scene.
Sergeant Watson testified that a woolen hat dropped to the ground from the passenger's lap when the passenger was ordered to exit the vehicle. The sergeant also saw a handgun laying on the floor, partially protruding from beneath the front seat. He recognized the handgun as a Ruger P89, which he identified at defendant's trial. According to the sergeant's arrest report, defendant was five feet, nine inches tall and co-defendant was five feet, eight inches tall.
Robert Colangelo, a Camden County Park detective in May 2010, and the Park Police Chief when the case was tried, was also dispatched to the scene of the arrest. He photographed the Explorer, the handgun protruding from beneath the front passenger seat, a black type of mask, and money in the center console cup holders. According to the Chief, the gun had a magazine with seven rounds of ammunition and another bullet in the chamber. The Chief also recovered eighty dollars in currency, another glove on the running board of the vehicle, and a gray mask from the passenger side of the vehicle. Later, the vehicle was towed, a search warrant was obtained, and another gray mask was found shoved in one of the seats near the seatbelt. The police also seized defendant's shirt.
Chief Colangelo testified that after defendant and the co-defendant were transported in separate vehicles to a side street, he had the second victim transported to the same location. Defendant and co-defendant were still in separate cars. The Chief had an officer remove one of the suspects from the car, asked the second victim if he recognized him, had the suspect returned to the car, and then repeated the procedure with the other suspect. The second victim identified the robber. According to Chief Colangelo — and contrary to the second victim's trial testimony — the second victim identified the co-defendant but not defendant.
The State also presented an expert in the operability and identification of firearms. He testified that he fired the weapon in evidence, a Ruger Model P89 DC, nine-millimeter caliber handgun, which was operable. The expert explained there was a safety mechanism on the gun, a "de-cocker," which lowered the position of the hammer. When the hammer was lowered, the gun would not discharge because it "won't allow the firing pin to hit." Consequently, the gun would sound like it was going off because one would hear a loud click, but there is a "disconnect in there that won't allow the firing pin to hit."
Defendant and the co-defendant presented no witnesses at trial. The jury found them not guilty of robbing the first victim in Newton Lake Park. The jury found defendant guilty of robbing the second and third victims in Cooper River Park.
II.
Defendant first contends the trial court erred by permitting evidence of the second victim's out-of-court identification. Defendant argues the officer who conducted the showup shortly after police arrested defendant did not follow the Attorney General's Guidelines and did not make a written record of any exchanges between the officer and the witness. Defendant also contends the showup itself was suggestive because police drove the second victim by defendant's Ford Explorer before the showup took place and then exhibited "[a] hand-cuffed defendant" who had "exited a marked police car escorted by a uniformed officer." Defendant asserts that "[i]n light of the totality of these circumstances, the State has not proven that the identification was reliable," that is, prompted by the second victim's own recollection of the crime rather than by the suggestive manner in which the identification procedure was conducted. We disagree.
During the trial, but before either Chief Colangelo or the second victim testified, the court conducted a Wade hearing. Preliminarily, the court found co-defendants had satisfied the "minimum threshold" demonstrating the showup was impermissibly suggestive, thereby entitling them to a hearing on whether the impermissibly suggestive showup was nonetheless reliable. Following that finding, the State presented the testimony of only one witness, Chief Colangelo.
The court had read the parties' briefs and presumably made its preliminary determination based on the briefs. The court did not, however, explain what facts co-defendants had presented to make the threshold showing that the showup was impermissibly suggestive. Although "one-on-one showups are inherently suggestive[,] . . . standing alone a showup is not so impermissibly suggestive" so as to require a hearing. State v. Herrera, 187 N.J. 493, 504 (2006). Nonetheless, "only a little more is required in a showup to tip the scale toward impermissibly suggestive." Ibid. Here, the court did not explain what constituted "a little more."
Chief Colangelo testified that on May 31, 2010, he assisted in the investigation of the three robberies and participated in a showup involving the second victim. The Chief testified he understood Sergeant Watson had "stopped the actors" immediately following the robbery of the third victim. According to Chief Colangelo's incident report, the police dispatcher was notified of the crime at 10:30 p.m. Approximately twenty minutes later, the Chief arrived at the overpass where police had stopped the Explorer carrying defendant and the co-defendant. Defendant and the co-defendant were in separate vehicles. The Chief directed the respective officers to transport defendant and the co-defendant to a nearby parking lot. He then transported the second victim to the parking lot.
The Chief told the second victim they were going to "take a look at two persons that may or may not be involved in this incident." When they arrived at the parking lot, Chief Colangelo shone his flashlight at the suspects so that they could not see the second victim. Defendant and the co-defendant were brought out of the police cars, one and then the other, so that they were not standing in front of the cars at the same time. According to Chief Colangelo, the second victim identified the co-defendant, but not defendant. The Chief did not recall whether the second victim said "anything to [him] about his degree of certainty" of his identification.
The State asserts the Chief's testimony was mistaken because he had mistakenly believed Sergeant Watson had transported defendant, when in fact the Sergeant had transported co-defendant.
During cross-examination, the Chief testified he did not tell the victim whether the identification was accurate. The Chief also testified he did not ask the second victim to look at anyone else that night. He acknowledged, however, that when he and the second victim drove past defendant's white SUV, the second victim identified it "as the vehicle." This occurred before the showup took place.
In response to the court's question as to whether his notes reflected when the robbery of the second victim had occurred, Chief Colangelo responded: "No. The dispatch gave multiple times so according to my report it says . . . 10:30." The Chief further testified the showup took place "no later than 11:30."
Based on Chief Colangelo's testimony, the court denied the co-defendants' motion to suppress the second victim's identification. In its decision, after recounting the Chief's testimony, the court found "the defense has failed to meet its burden. The defense has failed to show the [c]ourt how the identification procedure in question was impermissibly suggestive." The court noted the second victim had identified the Ford Explorer in a separate location from where he viewed defendant and the co-defendant. The court also noted that each person was shown to the victim separately. Additionally, the court explained the identification was made within less than one hour of the robbery, and that no evidence had been submitted suggesting the police made any statements to the victim that "could lead to any type of irreparable misidentification." Based upon the totality of circumstances, the court found the "identification utilized did not result in a substantial likelihood of irreparable misidentification."
When we review a decision concerning a showup, we assign "very considerable weight" to the trial court's "findings at the hearing on the admissibility of identification evidence." State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972). If there is sufficient credible evidence in the record to support the trial court's findings, the findings should not be disturbed. Ibid. Our review of the trial court's application of the law to the facts, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014).
The showup here predated State v. Henderson, 208 N.J. 208 (2011), in which the Court revised the criteria for evaluating out-of-court identifications. For that reason, we review defendant's claim under the two-pronged test formulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988). See State v. Jones, 224 N.J. 70, 86 n.2 (2016) ("Because the events underlying this case were decided before the Henderson decision was handed down, the guidelines established in Manson/Madison are applicable to this matter."); State v. Micelli, 215 N.J. 284, 287 (2013) (noting that the Manson/Madison standard applies because the identifications were completed prior to the decision in Henderson).
The Manson/Madison test "requires the court first to ascertain whether the identification procedure was impermissibly suggestive." Herrera, supra, 187 N.J. at 503. If so, the second step involves a determination whether the impermissibly suggestive procedure "was nevertheless reliable." Id. at 503-04. "The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Id. at 504.
Analyzing the totality of the circumstances
involves considering the facts of each case and weighing the corruptive influence of the suggestive identification against the "opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154 (citing Neil v. Biggers, [409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d at 401, 411 (1972)).]In undertaking this "reliability assessment," a trial curt "must restrict its focus to the accuracy and trustworthiness of the specific identification[,]" Jones, supra, 224 N.J. at 74, and not "drift into consideration of circumstantial evidence of guilt such as would be pertinent in a harmless error analysis." Id. at 92.
[Madison, supra, 109 N.J. at 239-40.]
We agree with the trial court's determination the second victim's identification of defendant was sufficiently reliable to avoid a substantial likelihood of misidentification. We question whether the co-defendants made a sufficient showing to even warrant a hearing. "[S]howups by definition are suggestive because the victim can only choose from one person, and, generally, that person is in police custody." Herrara, supra, 187 N.J. at 504. Here, the showup included two persons. No evidence presented during the Wade hearing suggested the second victim had seen any individual other than the one person who robbed him. Consequently, the factor that makes showups inherently suggestive — the victim can only choose from one person, and, generally that person is in police custody — was not present when the second victim identified defendant at the showup. In this case the victim had a choice of two suspects but only identified one.
True, the second victim had seen the Ford Explorer before being driven to the showup. That fact, however, did not necessarily render the showup inherently suggestive, considering the victim was shown more than one person. Whether co-defendants proffered the second victim's identification of the Ford Explorer as the "little more" than the showup alone needed for a hearing, and whether the second victim's identification of the van demonstrated impermissible suggestiveness in a showup involving two suspects, were questions the trial court did not answer.
We need not resolve those issues, however, because defendant did not carry his burden of demonstrating the second victim's identification of him "was so suggestive as to result in a substantial likelihood of misidentification." State v. Hurd, 86 N.J. 525, 548 (1981). See also Henderson, supra, 208 N.J. at 288-89 (holding "a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification," "the State must then offer proof to show that the proffered eyewitness identification is reliable," and "the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification"). As we have noted, the only factor possibly affecting the second victim's identification of defendant was the victim's first seeing the Ford Explorer. That was counterbalanced by two persons being involved in the showup.
As the trial court found, the police made no statements that led the victim to believe in advance, or conclude after the fact, the person who robbed him was one of the two persons in the showup. Moreover, the identification took place within one hour of the crime's commission. Our Supreme Court has "permitted on or near-the-scene identifications because '[t]hey are likely to be accurate, taking place, as they do, before memory has faded[] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Herrera, supra, 187 N.J. at 504 (alterations in original) (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)). Considering the totality of the circumstances, we cannot conclude the trial court erred in determining the second victim's identification of defendant at the showup, even if suggestive, was nevertheless reliable. Id. at 503-04.
The State did not produce the second victim at the Wade hearing. By failing to produce the victim, the State presented no evidence of significant Manson/Madison factors, including the opportunity to the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the victim's prior description of the criminal, and the level of certainty demonstrated at the confrontation. For the reasons explained above, we do not conclude the State's omission required suppression of the second witness' identification of defendant.
III.
Defendant next contends the trial court erred by denying his motion for a mistrial. These are the relevant circumstances. When Chief Colangelo testified during defendant's trial, defense counsel cross-examined him about the showup. Pointing out that Chief Colangelo did not record in his report anything he told the second victim about the showup, counsel asked:
Now, you understand that my asking you these particular questions about whether you told [the second victim] that the person may not be present and that he shouldn't feel compelled, the reason I'm asking you these questions is because those questions have
been standard procedure and required by the attorney general in identification procedures, right, in order to ensure reliability and minimize false positives?The prosecutor interjected: "I'm going to object to him asking him legal questions. The [c]ourt has already made a ruling on the admissibility and I don't think it's appropriate for him to go into - - ." Defense counsel asked to approach sidebar and objected to the prosecutor stating in front of the jury the court had already ruled on the admissibility of the second victim's identification. After further discussion, the court permitted defense counsel to cross-examine Chief Colangelo on certain guidelines that were in effect as of the date of the showup. Defense counsel did not immediately move for a mistrial.
Following the State's presentation of its proofs, defendant moved for a mistrial based on the prosecutor's statement. The court denied the motion. Considering whether there was a manifest injustice, the court determined there was none. The court further determined "that if there was any error, it was harmless error." The court noted the prosecutor made no statements "in reference to the [c]ourt finding that there was no suggestiveness or any reliability. It really dealt with an objection, a response, or a basis for the objection being stated by the State."
"Whether an event at trial justifies a mistrial is a decision 'entrusted to the sound discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). Trial courts should exercise their discretion to grant a mistrial "only in those situations which would otherwise result in manifest injustice." State v. Rechtschaffer, 70 N.J. 395, 406 (1976) (quoting State v. DiRienzo, 53 N.J. 360, 383 (1969)). We generally defer to a trial court's decision, Harvey, supra, 151 N.J. at 205, because
[t]he decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.
[State v. Winter, 96 N.J. 640, 646-47 (1984).]
We begin by emphasizing the impropriety of the prosecutor's comment. Unfortunately, it is not uncommon for attorneys to make what are generally referred to as "speaking objections" during a trial. The reasons for such conduct may range from inexperience or unfamiliarity with the rules of evidence to a deliberate attempt to improperly influence a jury. If an attorney cannot concisely state an objection, couched in the terminology of the rules of evidence, then the attorney should request a sidebar. The practice of objecting by means other than a concise reference to a rule of evidence, such as "irrelevant" or "hearsay," should be discouraged if not condemned, and should be met by trial courts with prompt curative instructions.
Here, the jury could have inferred from the prosecutor's statement that the court had not only ruled on the admissibility of the second victim's identification of defendant, but also given the identification judicial imprimatur. As defendant emphasizes, the case turned on identification. Simply put, the prosecutor's statement constituted misconduct. Our analysis, however, does not stop with that assessment. We conclude the trial court did not abuse its discretion by denying defendant's motion for a mistrial.
The State's case against defendant was strong. Several witnesses had accurately described the vehicle used by the perpetrators of the robberies. Sheriff's Officers stopped defendant's Ford Explorer shortly after the commission of the last robbery, after a Camden County Park Sergeant had followed the Explorer out of the park to the overpass where it was forced to stop. Law enforcement officers found masks, gloves, currency, and a gun in the Explorer. Defendant's shirt was seized and identified at trial as the shirt worn by the robber.
Even without the second victim's identification of defendant, the State's circumstantial evidence was compelling. "Indeed, in many cases, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence." Model Jury Charge (Criminal), "Circumstantial Evidence" (1993). Moreover, as we have previously explained, the second victim's identifications of defendant at the showup and at trial were admissible. Considering the State's circumstantial proofs, as well as the second victim's identification of defendant, we conclude the trial court properly exercised its discretion when it denied defendant's motion for a mistrial. The trial court correctly concluded denial of the motion would not result in a manifest injustice.
IV.
Defendant next attacks various instructions the trial court gave to the jury. In his original brief, defendant argues the court erred by giving the model jury charge on further deliberations in response to the jury's statement: "We have reached a standstill at this point and we need the court orders on how we should proceed." Defendant also contends the court erred when responding to a Sheriff's Officer's report "that one of the jurors ran out of the jury room, went directly back in, but before she went back in[,] she said I can't take it anymore. But she went directly back inside the jury room." The court had no other information about the juror's emotional state. The court explained to the parties that it did not intend to discuss the matter with the juror unless counsel requested. Neither attorney made a request that the court do so. The court did, however, instruct the jury that it could not deliberate unless all jurors were present; and that if any juror had
a personal concern that is not related to your deliberations, write a note, knock on the door, give it to my officer. Do not discuss your personal concerns with other deliberating jurors. My officer will give me the note and I will address all of your concerns. But I think it's time for what we call one of those take-a-deep-breath, walkout type break.The court then gave the jury a fifteen minute break. Neither attorney objected to the instruction.
Lastly, in his pro se brief, defendant asserts the court did not instruct the jury on "attempted theft" as an essential element of robbery.
Defendant's attacks on the court's instructions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
When the jury stated that it had reached a standstill, it "did not signal an intractable divide that would warrant a declaration of mistrial. . . . The trial court properly refrained from any inquiry that could have compromised the confidentiality of the jury's deliberations, and instructed the jury to resume deliberations in accordance with the approved Czachor charge." State v. Ross, 218 N.J. 130, 145 (2014). Although the jury was deliberating for a third day, it had deliberated only for part of the first day and the second day's deliberations had been interrupted by replay of testimony. Nothing in the record suggests the court abused its discretion by instructing the jury in accordance with the Model Charge and permitting the jury to continue deliberations. Ibid.
State v. Czachor, 82 N.J. 392, 404-06 (1980). --------
Nor do we conclude the trial judge erred by failing to take a different course of action when the Sheriff's Officer reported the comment made by the juror the following day. Defendant asserts for the first time on appeal the court should have conducted an individual voir dire of the juror. We find no error in the court's exercise of discretion. R. 2:10-2. The court had insufficient information to mandate an individual voir dire. Significantly, the court gave each party the opportunity to request a different course of action. Neither party suggested any alternative. Under those circumstances, there is no merit to defendant's assertion of error.
Defendant's final attack on the court's instructions — the court failed to charge attempt as an element of robbery — is belied by the record.
In addition to defendant's attacks on the jury charge, we find the second argument in defendant's pro se brief — the court erred by permitting the introduction of unknown evidence at trial — to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
V.
Defendant challenges his sentence on two grounds: the consecutive sentences are excessive; and the conspiracy to commit robbery should have merged with defendant's robbery convictions. We disagree the sentences are excessive, but agree the conspiracy count should have merged with the robbery counts.
When a trial court has followed the sentencing guidelines, and its findings of aggravating and mitigating factors are supported by the record, we will reverse only if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). Defendant's argument that his sentence is excessive is based on two assertions: the court relied too heavily upon his prior criminal record; and the crimes constituted one continuous criminal episode rather than a series of criminal events. We view this as nothing more than defendant's disagreement with the court's assessment of relevant sentencing factors.
The trial court followed the sentencing guidelines, its findings of aggravating and mitigating factors are supported by the record, State v. O'Donnell, 117 N.J. 210, 215-16 (1989), and the sentence does not "shock the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65. The trial court "exercise[d] discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," so we may not second-guess its decision. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 115 N.J. 383, 384 (1989)).
We agree, however, that the conspiracy count should have merged with the robbery counts. The New Jersey Code of Criminal Justice precludes conviction of more than one offense if any offense "consists only of a conspiracy or other form of preparation to commit the other." N.J.S.A. 2C:1-8(a)(2). Here, defendant was convicted of conspiracy to commit robbery and was also convicted of the two robberies.
The State contends "the evidence supported the conspiracy charge independent of the actual robberies in that defendant and the co-defendant agreed to rob multiple victims in separate locations and committed the robberies together as part of that conspiracy." The State neither cites to the record nor discusses the evidence it relies upon to support this argument. The only evidence in the record supporting the conspiracy count is the circumstantial evidence and inferences from the joint commission of the robberies. Defendant was acquitted of robbing the first victim and no evidence establishes a conspiracy to commit this robbery. Accordingly, we reverse the sentence on the conspiracy count and remand for correction of the judgment of conviction to reflect the merger of the conspiracy count.
Affirmed in part, reversed in part, and remanded for correction of the judgment of conviction. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION