Opinion
DOCKET NO. A-3689-13T3
10-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK ODOM, a/k/a BERNARD ODOM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-06-1234. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Derrick Odom was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1, and sentenced to an eight-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, he challenges a partial Miranda suppression, several evidentiary rulings, the jury charge, and his prison sentence. For the reasons that follow, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
I.
The following facts are derived from the trial record. On the afternoon of March 15, 2013, in Jersey City, sixty-eight-year-old S.L. was returning home from the store when an unknown man held the door for her and entered the apartment complex behind her. The man took a brief look at an apartment directory in the building's vestibule, and then left the building. A few seconds later, the man reentered the vestibule and demanded that S.L. hand over her money. When S.L. responded that she did not have any money, the man "went with his hands toward [S.L.'s] jacket." S.L. fought back, ramming her shopping cart into the man approximately six times. Shortly after the altercation began, another resident of the apartment building entered the vestibule, and the assailant "nonchalantly" stopped what he was doing and left the building. After watching the man casually walk down the block, S.L. went to her apartment and called the police.
Officers James Frattini and Keith Jackson of the Jersey City Police Department (JCPD) responded to the scene. S.L. described the man to the officers as a "five-eight, dark skinned black male[,]" who was wearing "[a] light gray hoodie, a black jacket and white sneakers." At trial, S.L. testified to feeling "annoyed" but not threatened by the man's conduct. After taking S.L.'s statement, the officers began to search the area for the man, bringing S.L. with them so that she could positively identify any suspects.
Approximately five minutes after beginning the search, the officers spotted defendant sitting on a stoop nearby. Since defendant matched S.L.'s description of her assailant, the officers approached him and asked him for identification. After some initial questioning, the officers considered defendant a possible suspect in the robbery. Pursuant to JCPD policy, the officers called in a detective to obtain a formal identification. However, S.L. was unable to identify defendant as the person who attacked her, and defendant was not arrested that day.
The JCPD continued to investigate the robbery. Sergeant John Ransom obtained a surveillance video from S.L.'s apartment complex. At trial, he testified that the video depicted "[a]n elderly woman pulling a shopping cart into the vestibule of [the apartment complex]. She remained in the vestibule for a few minutes and a male entered the vestibule and proceeded to attempt to take her pocketbook." Sergeant Ransom described the man in the video as a black male wearing a gray sweatshirt, black jeans, and white sneakers. Additionally, Officer Ricardo Reyes obtained video footage from a nearby deli depicting a man wearing a gray sweatshirt, black skull cap, and "orangey-reddish" gloves. At trial, still-shots from this footage were shown to the jury and entered into evidence.
On March 21, 2013, Officer Robert Perez and his partner initiated a search of defendant's apartment. Although they did not find any orange gloves or white sneakers in the apartment, the officers did find a gray sweatshirt laying on a couch. Upon concluding their search, the officers arrested defendant on an unrelated outstanding warrant. At the police station, defendant was interrogated by Detectives Brian Rabbit and James Benko. The following colloquy took place at the onset of the interrogation:
It appears that a woman identifying herself as defendant's girlfriend consented to the search; however, no evidence to this effect was admitted at trial.
Q: Before we go any further, before I talk to you anymore and read you — ask you any questions, I'm just
going to read you your rights. Okay?
"You have the right to remain silent. You don't have to answer my questions. If you decide to speak to me, anything you say can be used against you as evidence in court. You have a right to an attorney and to have him present during any questioning. If you cannot afford to hire a lawyer, the state will provide one for you at no cost."
Do you understand that?
A: Hm-hm.
Q: Just sign there.
Q: You're just signing that you understand your rights.
A: Okay.
Q: All right.
Q: No, right here.
This is the waiver part of the rights.
"I have read the statement of my rights and it has been read to me, and I understand what my rights are. I do not want a lawyer at this time. No promises or threats have been made to me, and no pressure of force of any kind is being used against me. I hereby voluntarily and intentionally waive my rights and I am willing to make a statement and answer any questions. I am aware that I can stop answering questions at any time I so do desire."
Do you understand?
A: Yeah.
Q: Okay. Sign there.
A: Sign where at?
Q: Right here.
Shortly after the interrogation began, defendant said to the detectives: "Yeah. I got to keep answering questions? I'm being under arrest or something because -- if I'm being under arrest, I would rather not answer no questions." Despite defendant's attempt to invoke his rights, the detectives continued the interrogation. At the end of the interview, defendant was placed under arrest for the robbery.
On October 28, 2013, a Miranda hearing was held to determine the admissibility of defendant's statements, made during his interrogation. Detective Benko testified that defendant was not formally charged until after the interrogation, and that there was no charge indicated on defendant's waiver card when he signed it before questioning. Detective Benko also testified that he interpreted defendant's statement — "I would rather not answer no questions" — to mean that defendant no longer wanted to talk to him.
After the Miranda hearing, the trial court issued an order partially granting defendant's motion to suppress. In a written opinion, the trial court held that the detectives violated defendant's Fifth Amendment rights "by insisting [d]efendant continue to speak to them even after he attempted to assert his right to remain silent." Accordingly, the court suppressed the interrogation to the extent it continued beyond defendant's invocation of his rights.
Trial commenced on January 9, 2014. S.L. recounted the events of March 15, 2013, including her inability to positively identify defendant as her assailant. Defendant chose not to testify. After closing arguments, the court gave the following instruction, now at issue on appeal:
Identification. Derrick Odom as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime if committed was committed by someone else or to prove the [identity] of that other person. You must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it.
Eyewitness identification evidence must be scrutinized carefully. Human beings have the ability to recognize other people from
past experiences and to identify them at a later time. But research has shown that there are risks of making mistaken identifications. That research has focused on the nature of memory and the factors that affect the reliability of eyewitness identification. Human memory is not fool-proof. Research has revealed that human memory is not like a video recording that a witness need only [replay] to remember what happened. Memory is far more complex. The process of remembering consists of three states, acquisition, the perception of the original event, retention, the period of time that passes between the event and the eventual recollection of a piece of information, and retrieval. The stage during which a person recalls stored information.
At each of these stages memory can be affected by a variety of factors. If after consideration of all the evidence you determine that the State has not proven beyond a reasonable doubt that Derrick Odom was the person who committed this offense then you must find him not guilty. If, on the other hand, after consideration of all the evidence you are convinced beyond a reasonable doubt that Derrick Odom was correctly identified you will then consider whether the State has proven each and every element of the offense charged beyond a reasonable doubt.
On January 14, 2014, the jury returned a guilty verdict. At sentencing, the judge denied a motion by the State for a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a). After applying and weighing three aggravating factors with two mitigating factors, the judge imposed an eight-year sentence, subject to NERA. Defendant filed a notice of appeal on April 23, 2014.
II.
On appeal, defendant raises the following arguments:
POINT I
DEFENDANT'S ENTIRE STATEMENT SHOULD BE SUPPRESSED BECAUSE IT WAS TAKEN IN VIOLATION OF [MIRANDA V. ARIZONA], 384 [U.S.] 436 (1966), AND A NEW TRIAL SHOULD BE ORDERED. [U.S. CONST.] AMENDS. V, XIV; [N.J. CONST.] ART. I, PARAS. 1, 10. (Partially Raised Below).
POINT II
AS IDENTIFICATION WAS THE MAIN ISSUE IN THE CASE, THE OFFICER'S TESTIMONY IDENTIFYING DEFENDANT AS THE ASSAILANT INVADED THE PROVINCE OF THE JURY AND USURPED THE JURY'S ROLE OF DETERMINING THE IDENTITY OF THE PERPETRATOR, IN VIOLATION OF [N.J.R.E.] 701 AND DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. ADDITIONALLY, THE TRIAL COURT'S IDENTIFICATION CHARGE WAS DEFICIENT, NECESSITATING REVERSAL. (Not Raised Below).
A. Frattini's improper lay witness opinion testimony identifying Odom as matching the description of the assailant.
B. The trial court's improper and incomplete identification instruction.
POINT III
THE TRIAL WAS RIFE WITH IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE THAT, DESPITE ATTEMPTS TO CURE, ULTIMATELY AFFECTED THE IMPARTIALITY OF THE JURY AND DENIED DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below).
A. Perez's identification of the hooded sweatshirt as the same sweatshirt worn during the robbery.
B. Ransom's summary of the vestibule surveillance video. (Not Raised Below).
C. Reyes' testimony that the video depicted a robbery.
D. Rabbit's testimony that Odom had unrelated open warrants.
We will address these arguments in turn.
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL. (Not Raised Below).
POINT V
THE SENTENCE IS MANIFESTLY EXCESSIVE.
A.
First, defendant argues that he did not knowingly or voluntarily waive his Miranda rights at the onset of his interrogation on March 21, 2013; thus, the trial court should have suppressed the entire interrogation rather than just part of it. We disagree.
Although a great deal of prejudicial evidence was suppressed, defendant made one particularly incriminating statement before he invoked his right to remain silent: he admitted to being the man in the still-shots from the deli footage.
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). However, when reviewing a Miranda motion, we supplement our ordinary standard of review with a "searching and critical" inspection to ensure constitutional rights have not been denied. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, 178 N.J. 35 (2003). The "trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference[,]" and are therefore "reviewed de novo." Gamble, supra, 218 N.J. at 425.
To be valid, a waiver of Miranda rights must be knowing, intelligent, and voluntary. Miranda, supra, 384 U.S. at 475. In New Jersey, the burden lies squarely with the prosecutor to prove the waiver is knowing, intelligent, and voluntary beyond a reasonable doubt. State v. O'Neill, 193 N.J. 148, 168 n.12 (2007). Importantly, for a waiver to be knowing and voluntary, an individual who has been arrested and charged with a crime must be informed of the charges before waiving his or her rights. State v. A.G.D., 178 N.J. 56, 68 (2003). Waivers must be "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986).
Specifically, defendant first argues that his waiver was involuntary because Detective Benko "ordered" him to sign the waiver, as opposed to asking him if he wished to sign it. This argument, however, is not persuasive when reviewing the exchange between the detectives and defendant as a whole. The detectives asked defendant several times whether he understood his rights, and, several times, defendant either replied "Hm-hm," "Okay," or "yeah." Defendant manifested his consent several times; the fact that Detective Benko told, rather than asked, him to sign the waiver following his repeated verbal affirmations of understanding is of no consequence.
Defendant also argues that his waiver was not made knowingly because he was arrested on unrelated outstanding warrants, and was not informed that he was being questioned in connection with the March 15, 2013 robbery. He asserts that his failure to answer questions with any detail at the onset of the interrogation demonstrates that if he had known that he was being questioned about the robbery, he would not have signed the waiver.
This position, even if factually accurate, has no support in case law. Our Supreme Court has clearly stated that an individual's knowledge that he or she is a suspect during questioning is not a necessary predicate to making an informed waiver of Miranda rights. State v. Nyhammer, 197 N.J. 383, 405-06 (2009). Police are not required to "supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights." Colorado v. Spring, 479 U.S. 564, 576-77, 107 S. Ct. 851, 859, 93 L. Ed. 2d 954, 967 (1987) (quoting Moran, supra, 475 U.S. at 422). Such "additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature." Spring, supra, 479 U.S. at 577. Although law enforcement must inform a detainee of his or her charges prior to questioning, pursuant to A.G.D., supra, 178 N.J. at 68, this requirement does not extend to situations where the detainee has not yet been charged with a crime.
It is clear that defendant did not need any additional information in order to make a knowing waiver of his rights, and the trial court did not err by declining to suppress the entire interrogation.
B.
Defendant next argues that the trial court permitted the jury to hear improper identification testimony from Officer Frattini. We disagree.
N.J.R.E. 701 defines the scope of permissible opinion testimony at trial:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.When testifying as a lay witness, a police officer is "permitted to set forth what he or she perceived through one or more of the senses." State v. McLean, 205 N.J. 438, 460 (2011). More specifically, an officer's "[f]act testimony has always consisted of a description of what the officer did and saw[.]" Ibid. However, an officer's testimony cannot include an "opinion, lay or expert, and does not convey information about what the officer 'believed,' 'thought' or 'suspected,' but instead is an ordinary fact-based recitation by a witness with first-hand knowledge." Ibid.
Relying on State v. Lazo, 209 N.J. 9 (2012), defendant argues that Officer Frattini's testimony — that, on the day of the robbery, defendant matched the victim's description of her assailant — constitutes an improper lay witness opinion not based on first-hand knowledge. Defendant claims that Officer Frattini should not have been permitted to "interject[] his opinion as to whether [defendant] matched the description of the assailant[.]" Defendant insists that Officer Frattini's testimony "invaded the provenance of the jurors who were fully capable of determining for themselves whether Odom was the assailant."
In Lazo, our Supreme Court invalidated a police detective's opinion that a defendant "closely resembled" a composite sketch of a suspect made pursuant to a criminal investigation. Id. at 24. Because the detective did not personally witness the robbery, the Court held that his "testimony had no independent relevance, it merely served to bolster the victim's account." Ibid. As the Court noted, the concern with such opinion testimony is that it unfairly places a state official's stamp of approval on another witness's identification, when the detective himself did not perceive the characteristics vital to making the identification. Ibid.; see also Neno v. Clinton, 167 N.J. 573, 586 (2001) (explaining that a "jury may be inclined to accord special respect" to testimony by an officer).
In this case, Officer Frattini's testimony served a notably different purpose than the detective's testimony in Lazo. The point of Officer Frattini's testimony was not to bolster an identification made by another witness. In fact, it could not have served such a purpose; the only witness to the crime — the victim — was unable to make a positive identification of her assailant. Officer Frattini's testimony had a different, and more relevant, significance to this case: it laid the foundation for why defendant became a suspect in the first place. Officer Frattini did not testify that defendant was the man who robbed the victim; rather, he was merely explaining why he singled-out and approached defendant during the search of the nearby area. As Officer Frattini's testimony lays a necessary factual foundation for the events of March 15, 2013, it was admissible, notwithstanding the Supreme Court's decision in Lazo.
Defendant also argues that Officer Frattini's testimony was speculative. This argument is belied by the record. Officer Frattini testified to obtaining a description from the victim, and then personally spotting an individual who matched this description. He approached and questioned defendant because he perceived, first-hand, that defendant was wearing clothing that matched the victim's description. Officer Frattini did not suggest in his testimony that defendant was the man who robbed the victim, nor did he claim to know what the assailant looked like. He only testified as to his basis for stopping defendant in the first place. Officer Frattini's testimony was based on his personal perception of events at the time, and did not "invade the province of the jury" as defendant claims.
Accordingly, the trial court did not err by admitting Officer Frattini's testimony.
C.
Next, defendant argues that the trial court's jury charge on identification was insufficient and constituted plain error. We disagree.
A defendant waives the right to challenge a jury charge on appeal if he or she fails to object to the instruction at trial. State v. Torres, 183 N.J. 554, 564 (2005) (citing R. 1:7-2). However, we may review any jury instruction for plain error, irrespective of a defendant's failure to object at trial. Pursuant to Rule 2:10-2, any error "shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial . . . court." The plain error standard is necessarily exacting. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
When reviewing for plain error, we may choose to consider the defendant's failure to object to the instruction at trial. Id. at 333. Ultimately, "[i]t may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Ibid. Additionally, we must use caution when reviewing for plain error, because awarding a new trial "when the error could easily have been cured on request[] would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." Ibid.
When contested on appeal, the propriety of a jury charge must be assessed as a whole. Torres, supra, 183 N.J. at 564; see also State v. Wilbely, 63 N.J. 420, 422 ( 1973) (citations omitted) ("[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation[,] but the charge should be examined as a whole to determine its overall effect."). Our Supreme Court has defined plain error in the context of a jury charge as "[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Torres, supra, 183 N.J. at 564 (quoting State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted)).
Defendant first argues that the trial court mistakenly gave the jury an instruction for in-court identifications only, while it should have given instructions for both in-court and out-of- court identifications. Defendant claims that an instruction was required for out-of-court identifications because, on the day of the robbery, Officer Frattini identified defendant as someone who matched the victim's description.
This argument lacks merit. Out-of-court instructions are required when, on a prior occasion before trial, a witness identifies the defendant as the person who committed the charged crime. Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only[,]" 1 (2012). However, as previously noted, Officer Frattini never identified defendant as the person who committed the robbery; rather, he testified that on the day of the robbery, defendant matched the description given to him by the victim. He did not purport to have first-hand knowledge of the assailant's identity. Thus, an additional instruction for out-of-court identifications was not necessary, and the court did not err by only instructing the jury with regard to in-court identifications.
Defendant also argues that the trial court "failed to charge identification in accordance with the current Model Jury Charge." Defendant points to a section of the Model Charge — enumerating factors to consider when assessing an in-court identification — that was omitted by the trial court. Specifically, defendant claims that the trial court should have charged the jury with relevant factors such as "the witness's opportunity to view and degree of attention, how to consider the prior description of the perpetrator, the confidence and accuracy of the identification, and the timing of the identification."
The Model Jury Charge explicitly gives courts discretion to "choose appropriate factors" to convey to the jury. Model Jury Charge (Criminal), "Identification: In-Court Identification Only[,]" 3 (2012). Defendant has not articulated with specificity any reason why the trial court improperly exercised its discretion when giving the jury charge. This is such a case where, as articulated by our Supreme Court in Macon, defendant's failure to object to the instructions at trial raises an inference that the omissions were "actually of no moment." Macon, supra, 57 N.J. at 333. Absent any specific reason why the trial court's instruction was flawed, we will not invalidate it on appeal.
Furthermore, there is no indication that consideration of the additional instructions proposed by defendant would have made a material difference in the jury's deliberations. Even if the trial court should have instructed the jury on these factors, its failure to do so does not raise any reasonable doubt as to whether the jury was incorrectly led to a result it otherwise might not have reached. See State v. Benkston, 63 N.J. 263, 273 (1973). Defendant cannot demonstrate that the trial court committed plain error by failing to include certain factors from the Model Jury Charge on in-court identification.
In fact, some of the factors enumerated by defendant likely would have weighed against defendant. For example, regarding the "prior description of perpetrator" factor, Officer Frattini's description of defendant matched the prior description given by the victim; this matching description was a key predicate for making defendant a suspect. The consistency between Officer Frattini's description and the victim's description of the assailant/defendant would only support the credibility of the identification.
Additionally, defendant asserts that the trial court should have included in the jury charge the fact that the victim failed to identify defendant as her assailant. To support this proposition, defendant cites to U.S. v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973). This citation, however, is provided without any context. In Ash, jury instructions were not at issue; rather, the Court was "called upon to decide whether the Sixth Amendment grants an accused the right to have counsel present whenever the Government conducts a post- indictment photographic display . . . for the purpose of allowing a witness to attempt an identification of the offender." Id. at 301. Ash does not provide any guidance on the propriety of jury charges regarding identification. As defendant's only support derives from an unrelated factual and legal context, his argument — that the jury charge improperly omitted the victim's failure to identify defendant as her assailant — must fail.
"Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of a picture of the defendant would be useful to the prosecution." Id. at 318-19. --------
For these reasons, the trial court did not commit plain error when delivering the jury charge on identification.
D.
Defendant next argues that the jury was unfairly influenced by prejudicial testimony at four separate times during trial. We disagree.
The New Jersey Rules of Evidence provide for the exclusion of irrelevant evidence, see N.J.R.E. 401, and relevant evidence whenever "its probative value is substantially outweighed by the risk of . . . undue prejudice . . . ." N.J.R.E. 403. The trial court has considerable discretion whether or not to exclude potentially prejudicial evidence. State v. McDougald, 120 N.J. 523, 577-78 (1990). An abuse of discretion occurs when the improper admission of prejudicial evidence diverts jurors "from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Moore, 122 N.J. 430, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)).
We first address Officer Perez's testimony. At trial, Officer Perez stated that the gray sweatshirt he found in defendant's apartment was "the sweatshirt that was seen on the day of the robbery that the suspect was wearing." After an objection and sidebar, Officer Perez again testified that the sweatshirt was the one "that [he saw] in the video that the person committing the robbery was wearing." Because Officer Perez lacked personal knowledge as to whether the sweatshirt was the same one worn by the robbery suspect, the trial court sustained objections to both of these pieces of testimony, and gave the following instruction to the jury:
There has been no evidence presented to you that the officer was present during any robbery. . . . [I]t's stricken from the record[,] and [you are] not [to] consider the testimony that it was the one [worn] by the defendant on the date of the robbery because there was no foundation that he was present at the robbery on the date in question.
Generally, jurors are expected to respect and follow curative instructions from the trial judge. See State v. Manley, 54 N.J. 269, 270 (1996) (citations omitted) ("And, in administering the criminal law the courts must rely upon the jurors' ability and willingness to follow the limiting instruction without cavil or question."). However, our Supreme Court has "consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial." State. v. Vallejo, 198 N.J. 122, 135 (2009) (citations omitted). When the jury is consistently and pervasively exposed to prejudicial evidence that is stricken by the trial judge, "a single curative instruction may not be sufficient to cure the prejudice resulting from cumulative errors at trial." Ibid. (citations omitted).
Defendant argues that the trial court's curative instruction was not sufficient to remedy the prejudice caused by Officer Perez's testimony. Defendant calls the instruction "confusing" and asserts that it "lacked clear and firm directions . . . ." Additionally, defendant claims that the likelihood of prejudice was extreme because Officer Perez's improper testimony spoke to a crucial issue in the case — whether or not defendant was the man who committed the robbery. Finally, defendant claims that the curative instruction should have been given to the jury more than once, since the jury was exposed to the improper testimony twice.
In light of the guiding precedent cited, particularly Vallejo, defendant's arguments lack merit. Although the jury was indeed exposed to improper testimony from Officer Perez, defendant incorrectly assumes that the trial court's instruction was insufficient to cure any prejudice caused by that exposure. The trial court's instruction, which explained exactly why the jury needed to disregard the testimony, was specific and clear. While it is true that the improper testimony was repeated after the court struck it the first time, the court did not even wait for an objection the second time it was proffered; rather, the trial court immediately intervened and struck the testimony from the record. Because the jury was not exposed to consistent, pervasive, or uncured testimony from Officer Perez, the trial court's instruction, requiring the jury to disregard the testimony, was sufficient in this case to prevent undue prejudice and maintain a fair trial for defendant.
We will next address the testimony given by Sergeant Ransom and Officer Reyes. For authentication purposes, these witnesses testified to the contents of the surveillance videos they obtained throughout the investigation. Notably, defendant did not object to Sergeant Ransom's account, and only objected to Officer Reyes' categorization of the incident as a "robbery," because the issue of whether or not defendant robbed the victim was an ultimate question for the jury. Even with regard to the "robbery" categorization, defendant did not request it to be struck from the record; he merely requested that the court "instruct the State to caution [the] witness, or be more careful with the questions."
In the context of improperly exposing the jury to prejudicial evidence, plain error is defined as "error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 566-67 (1999) (citations omitted).
Here, the trial court did not commit plain error by permitting Sergeant Ransom's and Officer Reyes' depictions of the surveillance footage. Their testimony was given for the express purpose of authenticating the videos that were played for the jury. Neither witness offered an opinion as to the identity of the assailant; they merely described what they saw and perceived on the videos. Further, defendant has not shown any significant likelihood of prejudice stemming from Officer Reyes' use of the word "robbery." Accordingly, the trial court did not commit plain error regarding the testimony of Officer Reyes and Sergeant Ransom.
We next address Detective Rabbit's testimony. On direct examination, Detective Rabbit testified that, at the time of the interrogation, defendant had open warrants for his arrest. Upon defendant's objection, the trial court promptly told the jury: "I'm going to give an instruction to the jury. Please disregard that he had open warrants. It's going to be stricken from this record."
Again, defendant argues that this curative instruction was insufficient. As defendant states in his brief, "Generally, for [a curative] instruction to pass muster . . . it must be firm, clear, and accomplished without delay." Vallejo, supra, 198 N.J. at 134. In this instance, the trial court's instruction speaks for itself as to its clarity and firmness, and defendant does not allege any significant delay between the instruction and the testimony. Absent any clear indication that the curative instruction was defective or insufficient, we will not invalidate it on appeal.
Defendant asserts that, even if each individual error by the trial court does not warrant a remand, the cumulative effect of each error significantly prejudiced the jury. As we concluded that the trial court did not commit any discernable errors with regard to evidentiary issues, defendant's argument with regard to cumulative prejudice also clearly fails.
E.
Finally, defendant asserts that his sentence — eight years in prison subject to NERA, with three years of parole supervision — is manifestly excessive. Specifically, defendant argues that the trial court committed two errors: failing to apply certain additional mitigating factors and failing to adequately explain why it applied certain aggravating factors. We disagree.
New Jersey law provides "a structured discretion designed to foster less arbitrary and more equal sentences." State v. Roth, 95 N.J. 334, 345 (1984). Accordingly, on review, we "require that an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence"; "require that the factfinder apply correct legal principles in exercising its discretion"; and modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 363-64; see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989) ("Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience."). Importantly, we "must avoid substitution of [our own] judgment for trial court's judgment." Roth, supra, 95 N.J. at 365.
In this case, the trial court applied aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk defendant will commit another offense), (6) (the extent of defendant's prior criminal record), and (9) (need for deterrence). Additionally, the court applied mitigating factors N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate his conduct would cause or threaten serious harm) and (12) (defendant's willingness to cooperate with law enforcement).
First, defendant asserts that in addition to mitigating factors two and twelve, the court should have applied factors N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm) and (9) (defendant's attitude indicates he is unlikely to commit another offense). The trial court correctly declined to apply these additional mitigating factors.
As for mitigating factor one, "[t]he defendant's conduct neither caused nor threatened serious harm[,]" N.J.S.A. 2C:44-1(b)(1), defendant argues that the victim was not hurt, and that his actions did not threaten any serious harm. This argument is belied by the very nature of the robbery charge of which defendant was convicted. By definition, defendant was found guilty of "[threatening] another with or purposely [putting S.L.] in fear of immediate bodily injury[]" during the course of attempting to commit a theft. N.J.S.A. 2C:15-1(a)(2). Defendant's assertion that he did not pose a threat of serious harm clearly lacks merit.
As for mitigating factor nine, "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense[,]" N.J.S.A. 2C:44-1(b)(9), defendant argues that, by showing remorse at sentencing, "there was a valid basis" to determine that he was unlikely to commit another crime in the future. However, as previously noted, this court is not simply to replace the trial court's judgment with its own. See Roth, supra, 95 N.J. at 365. This court did not have the benefit of perceiving firsthand the attitude or character of defendant throughout proceedings in the trial court. For a factor that necessarily relies on matters of subjective perception during trial, this court defers to the judgment of the trial court absent some conscience-shocking oversight. Here, the record does not support defendant's argument that mitigating factor nine should have been applied.
Second, defendant argues that the trial court failed to adequately support its application of aggravating factors three, six, and nine. While the trial court did not fully articulate its reasoning in the sentencing transcript, the record clearly supports application of these factors. Defendant has an extensive criminal record: sixteen arrests since 1986, with ten prior convictions for crimes including robbery, burglary, theft by unlawful taking, and assault. Thus, there was sufficient evidence in the record to support the judge's finding of aggravating factors three, six and nine.
We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; Roth, supra, 95 N.J. at 363-65.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION