Opinion
DOCKET NO. A-4369-10T4
04-19-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BENJAMIN CAPERS a/k/a COOPER BENJAMIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-04-0384 and 09-04-0385.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Benjamin Capers appeals from a jury verdict finding him guilty of two first-degree armed robberies and a number of less serious offenses, as well as from his sentence of forty-five years imprisonment. He argues that the State's inappropriate questioning of him and a defense witness at his trial warrants reversal, that his conviction for resisting arrest should have been merged into his conviction for eluding the police, and that his sentence was excessive. In a pro-se supplemental brief, he further argues that his counsel at trial was constitutionally ineffective in failing to challenge the DNA and identification evidence against him. Finding these arguments without merit, we affirm.
The evidence before the jury was that defendant robbed two small grocery stores, the first in Linden on January 12, 2009, and the second in Elizabeth on January 28, 2009. The first shopkeeper recognized defendant from prior occasions in the store, and initially thought defendant was joking when he brandished a gun and demanded money. He complied with defendant's command, however, once defendant used a "firm voice" and made a noise with the gun that the shopkeeper interpreted as the disengaging of the safety. Both the shopkeeper and a customer identified defendant in a photo array and at trial, although the customer was unable to be 100% sure either time. The robbery was videotaped on a surveillance camera, and the tape played for the jury, but defendant's face was not visible.
The second robbery proceeded much the same way, with defendant entering the store, brandishing a silver handgun, and demanding that the shopkeeper put money from the cash register into a laundry bag. Once defendant left, the shopkeeper followed and alerted police that a brown minivan was leaving the scene. He relayed the van's license plate number. Elizabeth police officer Luis Figueiredo and his partner were the first to spot the van, and attempted to catch up to it. As soon as Officer Figueiredo's squad car approached, the van sped off. The officers turned on their lights and siren and gave chase.
After fleeing a significant distance, the van entered a ramp onto the highway, but the driver lost control and crashed into a cement divider. When the van came to a stop, defendant exited the driver's side and fled on foot. Police chased defendant across several lanes of highway traffic and caught up to him under an overpass. As they tried to handcuff him, defendant continued to resist, including by tucking his arms under his body. The police eventually secured defendant. They brought the victim of the second robbery to the scene, where he identified defendant as the perpetrator. He did so again at trial.
A search of the van produced a silver handgun, a knit hat, black gloves, and a multi-colored laundry bag. Both shopkeepers described items that the robber was wearing or carrying consistent with the items the police found in the van. The gun was loaded with four hollow-point bullets and four "full metal jacket" bullets. No identifiable fingerprints were found on any of the items. Further forensic testing revealed DNA residue on the bag, gloves, and hat. Although the gun also contained DNA residue, it was an insufficient amount from which to draw conclusions. Defendant was excluded as a contributor to the DNA on the bag but could not be excluded as a contributor to the gloves or the hat. When defendant was arrested, police recovered $418 in cash in his possession.
Defendant was indicted on thirteen counts, most of which need not be recited here. As relevant to our analysis, defendant was charged with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; one count of second-degree eluding an officer, N.J.S.A. 2C:29-2(b); and one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). A jury trial resulted in acquittal on a charge of possessing hollow-point bullets, and convictions on all other charges. The court imposed consecutive sentences of twenty-five and twenty years for the robberies, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining sentences were made to run concurrently.
On appeal, defendant's counsel raises the following points:
POINT IDefendant's pro-se submission raises the following additional points:
THE STATE'S REPEATED INTRODUCTION OF DEFENDANT'S CHILD SUPPORT OBLIGATIONS AS A FINANCIAL MOTIVE FOR ROBBERY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
POINT III
THE CONVICTION FOR RESISTING ARREST MUST BE MERGED INTO THE CONVICTION FOR ELUDING.
POINT ONE
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBTAIN AN INDEPENDENT DNA EXPERT TO COUNTER THE STATE'S DNA EVIDENCE.
POINT TWO
DEFENDANT WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT AND THE CONSTRUCTIVE DENIAL OF COUNSEL BY THE FAILURE OF TRIAL COUNSEL TO MOVE FOR A WADE HEARING. (NOT RAISED BELOW)
POINT THREE
THE CUMULATIVE EFFECT OF TRIAL COUNSEL ERRORS DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
The issues in defendant's pro-se brief depend on decisions of trial counsel, the bases for which are not apparent from the appellate record. Accordingly, they may be appropriate subjects for a subsequent petition for post-conviction relief, not direct appeal. See State v. Hess, 207 N.J. 123, 144-45 (2011); State v. Preciose, 129 N.J. 451, 460 (1992); State v. Dixon, 125 N.J. 223, 261-62 (1991). We decline to address defendant's claims of ineffective assistance of counsel.
Appellate counsel's contention that the prosecutor acted inappropriately derives from two instances of questioning. First, in cross-examining defendant, the following exchange occurred:
PROSECUTOR: Now you have how many children?
DEFENDANT: Biologically I have three children and with my girlfriend seven all together.
PROSECUTOR: Okay. And at the time, and I'm talking about February 3, 2009, do you remember telling the police officers that you owed $7,000 in child support?
DEFENSE COUNSEL: Your Honor, relevancy.
COURT: That's sustained.
PROSECUTOR: Judge, may I be heard at sidebar?
COURT: No. No. I'll sustain that. . . . I charge the jury to disregard that, whether or not he owed child support, okay. That's not relevant to this case.
On the second occasion, the mother of defendant's daughter was testifying for the defense. On direct examination, she testified that, on the date of the second robbery, defendant had cash in his possession because he intended to purchase a dog for their daughter's birthday. On cross-examination of the witness, the following occurred:
PROSECUTOR: [Y]ou have a daughter with Mr. Capers. Do you currently have a relationship with him?
WITNESS: Friendship.
PROSECUTOR: You're friends?
WITNESS: Yes.
PROSECUTOR: Okay. And you have one child with him?
WITNESS: Yes.
PROSECUTOR: Are you aware of how many other children Mr. Capers has?
WITNESS: He has a son -
DEFENSE COUNSEL: Objection on relevancy.
COURT: What's the relevancy of that?
PROSECUTOR: It's relevant with respect to the follow-up issue that we're researching now, Judge.
DEFENSE COUNSEL: As of right now -
COURT: No. . . . I'll sustain the objection.
As the trial court immediately recognized, the prosecutor's lines of questioning were improper. The prosecutor sought to suggest that defendant's child support arrears provided a motive for robbery, but it has long been the law that the State may not argue that a defendant's poverty or debt as a general matter supplied the motive for his crime. State v. Mathis, 4 7 N.J. 455, 471-72 (1966); State v. Robinson, 139 N.J. Super. 58, 62-63 (App. Div. 1976), certif. denied, 75 N.J. 534 (1977). The questions should not have been asked.
Nevertheless, the trial court acted quickly to correct the impropriety. As to the questioning of defendant, the trial court sustained defense counsel's objection, and instructed the jury in clear terms that any alleged child support obligations were irrelevant to the case. The defendant never answered the question, and the prosecutor moved on. On the second occasion, the court recognized that questioning about defendant's other children had no relevant purpose, and it sustained defense counsel's objection before the prosecutor even asked a question about child support. These actions were swift and appropriate, and they cured any potential prejudice to the defendant. State v. Farrell, 61 N.J. 99, 107 (1972); State v. Darrian, 255 N.J. Super. 435, 455-56 (App. Div.), certif. denied, 130 N.J. 13 (1992).
Furthermore, the substantial evidence of defendant's guilt, including the DNA evidence and multiple identifications, far exceeded the two brief, aborted references to defendant's alleged child support arrears. Any error in attempting to elicit that testimony was harmless. See State v. Farr, 183 N.J. Super. 463, 469 (App. Div. 1982) (prosecutor's questions and comments about defendant's "substantial financial obligations" harmless in light of "overwhelming evidence of guilt").
Defendant argues for the first time on appeal that his conviction for resisting arrest should have been merged with his conviction for eluding. He relies on State v. Wallace, 313 N.J. Super. 435, 438-39 (App. Div. 1998), aff'd, 158 N.J. 552 (1999), in which a car chase ended with police blocking the vehicle in and the officers "immediately" grabbing the defendant as he tried to flee on foot. We concluded that, because the car chase provided the "factual predicate of the eluding conviction," and because the defendant was apprehended before he could "engage in any separate resistive conduct," he could not also be convicted of resisting arrest. Ibid. Here, in contrast, after defendant crashed his van, he led the police on a lengthy foot-chase across several lanes of a major highway, even attempting to open the doors of parked taxis with the apparent goal of continuing his escape. This act of flight, which put the pursuing officers at serious and different risk from the eluding in the van, and defendant's subsequent physical resistance to being handcuffed, provided a basis for a separate resisting arrest conviction. Declining to merge these convictions was not plain error.
Finally, defendant challenges his sentence. By virtue of his criminal history, including prior first-degree robberies, defendant was subject to a mandatory extended term under N.J.S.A. 2C:43-7, which was applied to one of the robbery convictions. See N.J.S.A. 2C:44-5(a)(2) ("Not more than one sentence for an extended term shall be imposed."). As relevant here, defendant was therefore exposed to a term of twenty years to life on the first robbery charge, and ten to twenty years on the second. N.J.S.A. 2C:43-6(a)(1), -7(a)(2). Further, under NERA, defendant was to serve eighty-five percent of these terms before being eligible for parole. N.J.S.A. 2C:43-7.2(a). The court sentenced defendant to twenty-five years for the first robbery, and a consecutive twenty-year term for the second. The other sentences, which defendant does not challenge, ran concurrently.
Defendant argues that the sentencing court erred in concluding that his robbery sentences should run consecutively. We review only whether the sentencing court's decision was an abuse of discretion. State v. Carey, 168 N.J. 413, 430 (2001).
The Code provides that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5(a). State v. Yarbough, 100 N.J. 627, 644 (1985), held that in making this discretionary determination, courts should consider whether:
(a) the crimes and their objectives were predominantly independent of each other;The court must also keep in mind that "there can be no free crimes in a system for which the punishment shall fit the crime." Id. at 643.
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous; . . . .
Here, the sentencing court gave a terse statement of reasons for imposing consecutive sentences, but it was sufficient. See State v. Ghertler, 114 N.J. 383, 392 (1989) (it is "not necessary that every sentence be a discourse"); State v. Soto, 385 N.J. Super. 247, 257 (App. Div.) (affirming consecutive sentences without explicit statement where reasons were "self evident"), certif. denied, 188 N.J. 491 (2006). "[C]rimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences because the 'total impact of singular offenses against different victims will generally exceed the total impact on a single individual who is victimized multiple times.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting Carey, supra, 168 N.J. at 429).
Not only did defendant's robberies involve multiple victims, but they were independent of each other, involved three separate threats of violence, and occurred in different locations, several weeks apart. Furthermore, defendant's involvement in the robberies was not an aberration in his life. In the early 1990s, he had been charged with five different robberies. The first was downgraded to a lesser charge and defendant received a sentence of probation. The next four robberies resulted in conviction after a jury trial, and defendant was sentenced to sixteen years in prison. He was paroled in 2004. Over the next five years, until he committed the two robberies that are the subject of this appeal, he was arrested eight times for assaultive behavior and drug charges. Each time, the charges were downgraded for prosecution and subsequently dismissed, or their dispositions are not apparent in the record we have been provided on appeal. At the time he committed the robberies in this case, he had spent most of his adult life in prison or was otherwise in frequent contact with the criminal justice system.
It was within the court's discretion to impose consecutive sentences when defendant resumed his commission of armed robberies in 2009. See ibid. (affirming consecutive sentences even where the "only factor that support[ed] consecutive sentences [was] the presence of multiple victims"); State v. Baker, 400 N.J. Super. 28, 50 (App. Div. 2008) (finding argument that sentences for multiple bank robberies should have run concurrently to be unworthy of discussion in opinion), aff'd, 198 N.J. 189 (2009); State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (affirming consecutive sentences for attempted murder and murder of separate victims), certif. denied, 177 N.J. 492 (2003).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION