DOCKET NO. A-0590-12T3
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-0007.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Richard L. Best appeals from his July 9, 2012 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) & (b)(3) (count two); third-degree possession of a CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); and third- and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (counts four and five, respectively). After merging counts one and two with count three, the judge sentenced defendant to an extended eight-year term of imprisonment with a forty-eight month period of parole ineligibility on count three, pursuant to N.J.S.A. 2C:43-6(f). The court also merged count five with count four and imposed a flat four-year term on count four to be served consecutive to count three.
We reject defendant's contention that the State's repeated references to defendant's use of two names violated his rights to due process of law and a fair trial. Nor do we agree with defendant that his sentence is manifestly excessive and unduly punitive. We do, however, conclude the trial judge failed to adequately articulate his reasons for imposing consecutive sentences. Accordingly, we remand for a statement of reasons and resentencing.
The facts relevant to this appeal are adduced from the trial record. The court and jury heard testimony from six State witnesses and defendant. On September 16, 2009, police sought out defendant who was wanted in connection with an outstanding traffic warrant from 2005. While attempting to execute the warrant at the Oakwood Plaza housing complex in Elizabeth, several police officers remained outside of the building while others went inside. Once inside, officers saw defendant running up the staircase. The officers ordered defendant to stop and get on the ground, and informed him that he was under arrest. Defendant ignored the order at least four times before finally raising his arms as if to comply. Suddenly, defendant leaped down the staircase to the landing below and began running down the remaining flights of stairs. The officers gave chase, following him out of the entrance to the building. Once outside, another officer tackled defendant and a struggle ensued. Defendant was observed tossing a brick of heroin and a clear plastic bag containing vials of cocaine. After defendant was detained, officers recovered the drugs from the ground. An additional brick of heroin and $284 were found on defendant during a search.
After the State rested its case, defendant testified. Counsel asked him about his prior convictions and then asked him to confirm his name. In doing so, the following colloquy occurred:
Q. Mr. Best, you told the jury earlier that you've been convicted three times in the past.
Q. Well, why should the jury believe that you're telling the truth about this incident?
A. Because I'm an honest man, and I'm a respectful man, and I changed my life around, for myself and for my family and for my son.
Q. I just want to talk a little bit about the ID card from South Carolina. Well, first I'll ask you this. Your name is Richard Best; is that right?
A. It's Richard Pendergrass, Richard Lamont Pendergrass.
Q. So, why are you going by Richard Best?
A. That's my mother's last name. And since I had been in a fight and I got arrested, that's the last name they've been using, because they asked me who I live with, and I told them my mother. So, that's why the last name has been Best.
Q. And what name is reflected on your South Carolina ID?
Q. And why is that?A. That's my father's last name.
Q. Which name is on your birth certificate?
Q. So, you're known as Richard Pendergrass?
Q. Mr. Best, did there come a point in time when the officers that had arrested you asked you what your address was?
A. Yes, he asked me what my address was and where I'm living at.
Q. Did you give them a different address than your South Carolina address at any point?
A. I told them since I came up here to visit where I'm going to be staying at, and that's my mother's address, 520 Court Street.
Q. So, you told them you would be staying at 520 Court Street?
Q. They had already seen your South Carolina identification card?
On cross-examination, the State asked:
Q. Today you testified, when you took the stand, that your name was Richard Best; is that correct?
A. Yes.Q. And then you went on to say that your actual name is Richard Pendergrass; is that correct?
Q. Pendergrass. You also testified at a prior proceeding that your name was Richard Best; correct?
A. That's from my mother's last name.
Q. But is it true or not that you testified at a prior proceeding that your name is Richard Best?
A. Yes, I use my mother's last name.
Q. And the South Carolina ID you produced, that ID says that you are Richard Lemond, L-E-M-O-N-D, Pendergrass; is that correct?
. . . .
Q. Have you also used the name Richard L. Best?
Q. Isn't it true, Mr. Best, that you use all these different names to evade the authorities?
A. No, nuh-uh.
Defense counsel reiterated defendant's use of multiple names again on redirect examination. When asked why he uses the last name Best, as well as the last name Pendergrass, defendant explained, "When I got locked up before, I used Pendergrass. They asked me about my mother. I told them her last name is Best. So, since that time, they [have] been putting Best instead of Pendergrass on my paper. So, that's why I use the name Best." In her summation, counsel drew the jury's attention to the driver's license stating:
[L]et's talk a little bit about the driver's license and why you should rely upon that. . . . [G]etting a license or getting an identification card requires proof of residence. . . . You have to have something . . . to prove that you actually live there. He had that proof.
The South Carolina driver's license was submitted to the jury to use during deliberation. The prosecutor stated to the jury:
Defendant said, I'm a changed man. The only thing that changed about that man is his name whenever he needs to evade law enforcement. How many names did you count? Richard Best, Richard L. Best, Lemont Best, Richard Lemont Pendergrass, Richard Pendergrass, Richard Lemond Pendergrass. What is it? I can't keep track. He stood up here, swore that [his] name [was] Richard Best, B-E-S-T, and that he swore in South Carolina, when he signed this, that his name was Richard Lemond Pendergrass. . . .
. . . .
I'm going to leave you with this: all of the evidence in this case, all the testimony in this case points to one man and one conclusion, that on September 16, 2009, this man right here, Richard Lemont Best Pendergrass Lemond Richard had these drugs in his possession with the intent to distribute.
After all the testimony had been presented by the parties, the judge gave the following jury instructions:
Now, there's also been some reference on cross-examination, and it came out on direct, regarding Mr. Best being known by different names. The prosecutor questioned him and during his summation alleged that the use of other names was done to evade the police in the past, that it shows a consciousness of guilt on his part as to the present crimes charged. Mr. Best, in response, told you that these were not names that he actually used, but when he had been arrested in the past, these names had been improperly attributed to him by the police during the arrest process so that he just used them from time to time.
Now, whether or not these can be used for the purposes that you say, you have to first find that, in fact, he gave those names and they were not incorrectly attributed to him by the police. If you believe that he gave them, then you can consider that as consciousness of guilt, as an attempt to evade, but just because someone is known by another name does not mean that it is always for that purpose.
You can give weight to the testimony of the defendant in this regard, that this was nothing that he consciously did, that it was rather something that when he had been arrested in the past, the police incorrectly attributed that name, and then it stayed with him for the rest of his life.
Defendant did not object to the either the State's cross-examination or summation argument. Following the jury verdict, this appeal followed.
On appeal, defendant raises the following issues:
I. THE PROSECUTOR'S REPEATED REFERENCES TO DEFENDANT'S USE OF TWO NAMES TO ARGUE THAT HE WAS NOT A TRUTHFUL PERSON VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
In Point I, defendant maintains the State's references to defendant's multiple names tarnished his credibility and denied him a fair trial. After careful consideration of the legal argument advanced, in light of the record and applicable legal principles, we reject defendant's contentions.
Normally, absent a special showing of relevance, the State is prohibited from making reference to a defendant's aliases. State v. Salaam, 225 N.J. Super. 66, 72 (App. Div.), certif. denied, 111 N.J. 609 (1988). In Salaam, we considered whether the trial judge committed harmful error by revealing the defendant's false names to the jury. Ibid. During the trial, the judge twice referred to defendant as "Abdul Haqq Salaam, also known as Willie Favors." Ibid. Defendant objected, arguing that these references to his false name denied him a fair trial. Ibid. We noted "the references to defendant's prior name were made sparingly - - only three times - - and did not suggest an element of criminal association or bad character on the part of [the] defendant." Id. at 76. We concluded the references "neither compromised [the] defendant's right to have the jury evaluate the merits of his defense nor prejudiced his right to a fair trial." Ibid.
Recently in State v. Parker, 216 N.J. 408 (2014), the Court examined prior case law addressing the question of the use of false and alias names. The Court found that "in order for the admission of the reference to a false name to constitute grounds for reversal, 'some tangible form of prejudice' to the defendant must be demonstrated." Id. at 420 (quoting Salaam, supra, 225 N.J. Super. at 73); see also State v. King, 372 N.J. Super. 227, 241 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).
In Parker, the State introduced evidence that the defendant used false names when arrested for prior unrelated offenses. Id. at 411. That evidence, "combined with the assistant prosecutor's summation argument that the defendant's testimony should not be believed for that reason, violate[d] the New Jersey Rules of Evidence." Ibid. The Court determined the State had made defendant's prior use of false names the centerpiece of its attack on the defendant's credibility, and that the outcome of the trial depended on the jury's credibility assessments. Id. at 424.
A review of other cases demonstrates that not every instance where reference is made to a defendant's false names warrants reversal of the conviction. In Salaam, the references to the defendants' false names were brief and the State did not use the false names to make a substantive point or impeach the credibility of a witness. Salaam, supra, 225 N.J. Super. at 75-76; see also King, supra, 372 N.J. Super. at 240-41 (where use of a nickname was neither prejudicial nor an ominous sounding alias); State v. Paduani, 307 N.J. Super. 134, 146-47 (App. Div.), certif. denied, 153 N.J. 216 (1998) (holding use of defendant's street nickname during trial cannot serve as a per se predicate for reversal).
In the matter at hand, the State's reference to defendant's other names by the State was not significant to warrant reversal of the conviction. Contrary to defendant's contentions, the State cannot be faulted for referencing defendant's alternate names as defendant's counsel, for his own strategic reason, raised the issue first during his case in chief. The State responded on cross-examination to defendant's direct testimony. The references made by the State during closing argument directly challenged defendant's self-characterization as "honest" and "changed." Importantly, defendant's "other" name, Pendergrass, was not a false name, but rather his true name as listed on his birth certificate. The "false name" in this case is Richard Best, the name, attributed to him by law enforcement during prior arrests, which the State used in this indictment.
The references to defendant's names were not significant to the prosecution of the case. While mention of his names happened on several occasions by both sides, the State did not use the names in a malicious fashion. Unlike Parker, here, the State's case against defendant did not rest entirely on an attack upon defendant's credibility. Rather, the State introduced testimony from numerous officers that defendant had warrants for his arrest and ran from the police when confronted. The State also introduced physical evidence of defendant's possession of CDS. The belated mention of defendant's names can hardly be viewed as a central theme to the prosecution's case. Moreover, defendant has pointed to no tangible form of prejudice attributable to the use of his other name during trial, and our independent review of the record reveals no such evidence.
Moreover, the doctrine of invited error bars defendant from challenging on appeal testimony that defense counsel elicited as part of the defense strategy. Under the invited-error doctrine, trial errors that "were induced, encouraged[,] or acquiesced in or consented to by defense counsel ordinarily are not the basis for reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).
Lastly, defendant did not raise any objections to the State's examination questions or closing remarks. The trial court, however, gave a limiting instruction, and we must presume that the jury followed those instructions. State v. Smith, 212 N.J. 365, 409 (2012). We further determine that the error, if any, did not constitute a "fundamental miscarriage of justice." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). The record is replete with evidence of defendant's guilt. We conclude there was no plain error under R. 2:10-2, and the repeated references to defendant's other names did not compromise defendant's right to a fair trial or the jury evaluation of the merits of the defense.
Next, defendant argues the trial court failed to articulate reasons for imposing an extended-term on merged counts one, two, and three (CDS offenses), and for imposing a consecutive sentence on merged counts four and five (resisting arrest offenses). We are in partial agreement with defendant.
Pursuant to N.J.S.A. 2C:43-7(a)(4), the term for a third-degree crime is to be fixed between five and ten years; however, a court can extend the term under N.J.S.A. 2C:44-3 if the criteria in the statute are met. N.J.S.A. 2C:44-3(a) affords the sentencing court the discretion to impose an extended-term sentence upon a finding that the defendant qualifies as a "persistent offender," which is defined as:
a person who at the time of the commission of the crime is [twenty-one] years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least [eighteen] years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within [ten] years of the date of the crime for which the defendant is being sentenced.
Once the court has concluded a discretionary extended-term sentence is legally permissible, it must then identify the range of sentences available for imposition. The range of sentences available for imposition starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. State v. Pierce, 188 N.J. 155, 169 (2006).
"Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court -- subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors," and the court's balancing of those factors. Ibid. In determining the length of an appropriate sentence, a trial judge must "use the full range of sentences opened up to the court," which "is a function of the court's assessment of the aggravating and mitigating factors." Id. at 168. Finally, the court must determine any period of parole ineligibility. Id. at 164.
The State filed a timely application for an extended-term due to defendant's prior convictions. The trial court considered defendant's criminal history and aggravating factors, which he found to significantly and substantially outweigh nonexistent mitigating factors. The sentence the court imposed was well within its discretion, N.J.S.A. 2C:44-3(a), to which we are obligated to give deference. See State v. Bieniek, 200 N.J. 601, 612 (2010).
Next, defendant takes issue with the imposition of consecutive sentences. Trial judges have discretion whether sentences for multiple offenses are to be served consecutively or concurrently. N.J.S.A. 2C:44-5; see also State v. Yarbough, 100 N.J. 627, 630, 343-44 (1985) (adopting a range of criteria as general sentencing guidelines for concurrent- or consecutive-sentencing decisions when the defendant had committed separate offenses), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). However, Yarbough made clear that "the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision." Yarbough, supra, 100 N.J. at 643. "When a trial court fails to give proper reasons for imposing consecutive sentences at a single sentencing proceeding, ordinarily a remand should be required for resentencing." State v. Carey, 168 N.J. 413, 424 (2001).
The record demonstrates the trial judge gave no reasons for the consecutive sentences as required under Yarbough. Without the trial judge's reasons for imposing a consecutive, four-year prison term, we cannot provide an effective review of the sentences. See State v. Marshall, 130 N.J. 109, 237 (1992). Accordingly, the matter is remanded to the trial court for resentencing, with the instruction that the judge must set forth a statement of reasons, in accordance with Yarbough, for the consecutive sentence.
Affirmed in part, remanded for resentencing on the consecutive sentence only. 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