Opinion
DOCKET NO. A-4350-12T4
09-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTOINETTE CARTER, Defendant-Appellant.
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the briefs). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-04-00617. Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the briefs). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). PER CURIAM
A Hudson County grand jury charged defendant Antoinette Carter in a two-count indictment with second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one); and second-degree armed robbery, N.J.S.A. 2C:15-1 (count two). Co-defendant Dwayne Hutchinson was also charged with these offenses.
Defendant and Hutchinson were jointly tried before a jury and convicted of both counts. At sentencing, the judge merged the conviction for count two into count one, and sentenced defendant to a six-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were also assessed.
The judge sentenced Hutchinson to a seven-year term of imprisonment, subject to NERA. On direct appeal, we affirmed his conviction and sentence. State v. Hutchinson, No. A-6283-11T4 (App. Div. December 26, 2013) (slip op. at 23), certif. denied, ___ N.J. ___ (2014).
On appeal, defendant raises the following contentions:
POINT IAfter reviewing the record in light of the contentions advanced on appeal, we affirm.
THE TRIAL COURT'S FAILURE TO DETERMINE WHETHER FISHER QUALIFIED AS AN EXPERT WITNESS AND OMISSION OF AN EXPERT WITNESS JURY INSTRUCTION WARRANTS REVERSAL OF THE CONVICTION. (Not Raised Below).
A. Fisher's Testimony Required Specialized Knowledge Beyond the Ken of an Average Juror.
B. The Trial Court's Failure to Conduct a Preliminary Hearing to Determine Whether Fisher Qualified as an Expert Witness Constitutes Reversible Error.
C. The Trial Court Erred in Failing to Charge the Jury Regarding Expert Testimony.
D. The Absence of Both an N.J.R.E. 104 Hearing and an Expert Jury Instruction Constituted Plain Error.
POINT II
THE TRIAL COURT IMPROPERLY DENIED CO-COUNSEL'S REQUEST TO CHARGE THE JURY WITH THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT.
POINT III
THE TRIAL COURT ERRED IN FAILING TO DEFINE CRIMINAL ATTEMPT WHEN INSTRUCTING THE JURY AS TO THE ELEMENTS OF ROBBERY. (Not Raised Below).
POINT IV
THE TEXT MESSAGE PURPORTEDLY SENT TO CARTER'S MOTHER SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE PURSUANT TO N.J.R.E. 403. (Raised Below, in Part).
POINT V
THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS FOR ITS FINDING OF AGGRAVATING FACTORS, ENGAGED IN DOUBLE COUNTING, AND FAILED TO CONSIDER APPLICABLE MITIGATING CIRCUMSTANCES.
I.
The State developed the following proofs at trial. On June 1, 2010, defendant met the victim in a university student center. They spent approximately four hours together, "[t]alking about class [and] using the computer." The victim had recently cashed a financial aid check and he was carrying $800 in his wallet.
At 2:18 p.m., defendant sent a text message to "Mom's cell," stating "Can I borrow some money 'til next week? I need to pay my insurance." At some point, the victim told defendant he was going to go to the mall.
Defendant sent a series of text messages to her boyfriend, Hutchinson. The first, sent at 2:37 p.m., asked, "Wanna get somebody." In a subsequent text, defendant stated, "This boy -- all his PELL money on him. He got like $2,100 and I want it." Two follow-up messages stated, "Because I heard him telling this man in my class, plus he took his wallet out" and "Sitting right beside me. He 'bout to leave in a min'." At 3:12 p.m., defendant sent Hutchinson a text message that stated, "Going to the mall now." Seven minutes later, she instructed Hutchinson, "Let me know when you get in the mall."
The text messages defendant sent Hutchinson were retrieved from defendant's cell phone pursuant to a communications data warrant. The State was not able to retrieve any messages received by defendant during the relevant time period.
At the mall, defendant and the victim first went into a clothing store. Defendant made a purchase and sent a text message to Hutchinson stating, "I'm about to leave" the clothing store. Defendant and the victim then went in and out of a department store and the victim saw that defendant was continuing to use her cell phone to send text messages to someone. At 3:36 p.m., defendant sent a message to Hutchinson that directed him, "Take my shit, too."
As defendant and the victim walked down a stairway inside the mall, Hutchinson attacked the victim from behind. Hutchinson grabbed the victim across his neck, put his hand in the victim's pocket, and removed his wallet. Hutchinson told the victim, "Give me everything you got." The victim was able to break free for a moment, and Hutchinson then punched him in the face and ran away. Defendant did not assist the victim or call for help.
The victim ran after Hutchinson and chased him out of the mall to the parking garage. A mall security guard appeared and the victim reported that Hutchinson had robbed him. Hutchinson denied the victim's accusation and he got into a car and drove away. The guard was able to get the license number of the car and wrote it down for the victim to take to the police. A records check revealed the car was registered to defendant and that Hutchinson had previously received a summons while using the car. The victim was able to identify Hutchinson from the photograph on his driver's license, which the police retrieved from a computer database.
Later that day, defendant appeared at the police station, stating she wanted to "check up" on the victim. The police officer who was investigating the incident asked defendant if she knew Hutchinson and she acknowledged that he was her boyfriend. Defendant admitted that "she was on the phone" with Hutchinson while she was in the mall with the victim. As the officer was talking to defendant, she began receiving telephone calls from Hutchinson.
In response to the officer's request, defendant agreed to permit the police to search her cell phone. The police obtained a warrant and the FBI was able to transfer the phone's contents, including the text messages defendant sent Hutchinson, to a compact disc. The text messages were then printed out and displayed to the jury. A mall surveillance video showed Hutchinson following defendant and the victim in the mall.
II.
In Point I, defendant argues for the first time on appeal that the State improperly introduced expert testimony about her text messages without first qualifying the witness providing it as an expert. She also argues the judge erred in failing to give the jury a sua sponte instruction on expert testimony. We disagree.
Defendant consented to a search of her cell phone. After obtaining a warrant, the local police sent the phone to "the FBI . . . Computer Analysis Response Team" in Quantico, Virginia to retrieve the text messages from the phone's memory. At trial, the State presented the testimony of Fisher, an FBI Electronics Engineer and Forensics Examiner. Fisher had held this position for eight years, during which he performed "forensic examinations on various consumer electronics including cell phones, GPS[']s, and other miscellaneous electrical circuits."
Fisher testified he downloaded defendant's Blackberry phone's memory using "Blackberry's Desktop Manager" and transferred it to a compact disc, which contained "reports" of the contacts, calls, text messages, and pictures in the phone. Fisher then printed out the text messages defendant sent Hutchinson on the day of the incident. The time stamp for these text messages were based on "Coordinated Universal Time" (UTC time), which Fisher explained is "24 hour time[.]"
Fisher stated that "24 hour time" is "basically the same thing as the time we have now of 00:00 through 12:00 noon and then, again, we have from 12:00 noon to 12:00 p.m. Instead of 12:00 noon to 12:00 p.m.[,] [in UTC] it would be, like 13:00 for one o'clock, 14:00 for two o'clock and so forth[.]"
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Defendant raised no objection to Fisher providing testimony concerning the cell phone and asked no questions concerning Fisher's qualifications to transfer her deleted text messages to a compact disc and then print out the relevant messages. She also did not ask the judge to instruct the jury on expert testimony. Therefore, we review the claimed error under the plain error standard. R. 2:10-2. This standard "requires demonstration of '[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.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The failure to object supports an inference that trial counsel did not view the alleged error as prejudicial. State v. Macon, 57 N.J. 325, 333 (1971). The purpose of requiring a defendant to raise objections at trial is to "provide[] the trial court with the opportunity to take corrective action wherever necessary to reduce the impact of the [allegedly] improper questioning." State v. Douglas, 204 N.J. Super. 265, 274 (App. Div.), certif. denied, 102 N.J. 378 (1985). As our Supreme Court observed over forty years ago, "to rerun a 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." Macon, supra, 57 N.J. at 333.
A "[d]efendant is required to challenge [jury] instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.
Applying these principles, we conclude there was no error, plain or otherwise, in the admission of Fisher's testimony or the absence of a jury instruction on expert testimony. It is well established that expert testimony is only necessary where the intended testimony concerns "'a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge.' If the matter is within the competence of the jury, expert testimony is not needed." State v. Sowell, 213 N.J. 89, 99 (2013) (quoting State v. Odom, 116 N.J. 65, 71, 76 (1989)).
Here, all that Fisher did was transfer data from defendant's cell phone to a compact disc and then print out the relevant text messages. The manner in which that transfer occurred was not relevant to the issues before the jury and, indeed, defendant did not object, or ask questions on cross- examination concerning the methodology Fisher employed. Nor did defendant dispute that she sent the text messages or that they had been retrieved from her phone. With the prevalence of cell phones and other mobile internet devices in our society, we perceive that the average juror would understand that records are maintained of text messages and calls made from a cell phone and that such records are readily retrievable. The "24 hour time" (UTC) standard Fisher explained was also well within the ken of an average juror. Defendant's failure to object to Fisher's testimony or to request a jury charge also supports the conclusion that she did not believe that the witness was providing expert testimony or that an instruction on expert testimony was warranted. Macon, supra, 57 N.J. at 333. Therefore, we conclude that no error occurred.
To the extent that defendant now alleges that her trial attorney was ineffective because he did not challenge Fisher's qualifications, we note that defendant may raise this claim in a properly filed petition for post-conviction relief (PCR). Such claims are best suited for PCR proceedings because they often involve matters for which there is not a complete record of counsel's reasons for the trial strategy employed in a particular case. State v. Rambo, 401 N.J. Super. 506, 525 (App. Div. 2008) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). That is the case here. We therefore reject defendant's contentions on this point.
In Point II, defendant asserts the judge erred in denying co-defendant Hutchinson's request to charge the jury on the lesser-included offense of simple assault. In rejecting this identical argument in our decision affirming Hutchinson's conviction, we stated:
Defense counsel requested the jury be charged with simple assault, alleging that because of the relationship between [Hutchinson] and Carter, [Hutchinson] went to the mall to assault the victim out of jealousy, not to rob him. [The trial judge] denied the request stating:
I don't think that a reasonable jury could believe that this assault was to create bodily injury. There's no indication of any jealousy or hostility [towards] the victim. . . . [I]f this is the person [who] did it, the intent was robbery[.]
The evidence clearly supports a finding that [Hutchinson] had the intent required to commit robbery. The evidence supports that [Hutchinson's] intention was to steal, not harm a rival for Carter's affections.
In addition, Carter's text messages to [Hutchinson] shortly before the incident show that [Hutchinson] had a premeditated plan to commit a robbery. Carter's texts communicated that the victim had cash in his wallet and provided [Hutchinson] with the victim's location.
Thus, the [trial] court properly declined to charge the jury on simple assault because there was no rational basis in the evidence to convict [Hutchinson] of simple assault and acquit him of robbery.
[Hutchinson, supra, slip. op. at 9-10.]
There is no reason to depart from this ruling in the present case. The evidence showed that Carter initiated the plan to rob the victim because he had "all his PELL money on him . . . and I want it." She had no intention to cause bodily injury to the victim. Therefore, as in Hutchinson, supra, the trial judge did not err in the request for a jury instruction on simple assault.
Turning to the contentions defendant raises in Point III, we discern no error, much less plain error, in the judge's failure to define the word "attempt" as part of the instruction he provided to the jury on the robbery count. This term need only be defined for the jury when "there [is] no evidence of an actual theft, [and] the court [is therefore] required to instruct the jury on the law of attempt as an element of robbery." State v. Dehart, 4 30 N.J. Super. 108, 119 (App. Div. 2013). Because the evidence demonstrated that the victim's wallet was taken, this was an actual, rather than an "attempted," robbery and no further instruction was necessary.
In Point IV, defendant challenges the admission of the text message she sent to her mother in which she wrote, "Can I borrow some money 'til next week? I need to pay my insurance." Although defendant did not raise this objection at trial, she now contends that "presenting evidence of [her] poverty as a basis for demonstrating motive" was "highly prejudicial." We disagree.
Generally, it is improper to use poverty or lack of financial means as evidence of the defendant's motive to commit a crime. State v. Mathis, 47 N.J. 455, 469-72 (1966); State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003). In Mathis, supra, the defendant, who was charged with murder during an attempted robbery, was cross-examined about his claim of employment with his father. Mathis, supra, 47 N.J. at 459, 469. The Supreme Court held that the questions were improperly intended to lead the jury to believe that the defendant was really unemployed, that he was impoverished, and that he was therefore likely to commit the robbery and murder. Id. at 470-71. The Court explained that "[t]he trouble is that [lack of money] would prove too much against too many" and that "there must be something more than poverty to tie defendant into a criminal milieu." Id. at 471-72.
In Terrell supra, the defendant was charged with possession of controlled dangerous substances with intent to distribute. Terrell, supra, 359 N.J. Super. at 242. The State introduced testimony that the defendant was not employed to imply that the money found in his possession came from selling drugs. Id. at 244-45. We held that "[t]he introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form," because a defendant's poverty or lack of income cannot be used to establish a criminal motive. Id. at 247.
We do not view Mathis and Terrell as barring any reference whatsoever to a defendant's pecuniary difficulties as evidence of motive to commit a theft or robbery. Rather, the reasoning of those cases disapproves of a generalized argument that a defendant's impoverished circumstances support an inference of motive or inclination to commit a crime.
Unlike in Mathis and Terrell, defendant's text message was probative of her pressing need for money for a specific purpose, the payment of her insurance bill. Defendant sent the message to her mother moments before she began communicating with Hutchinson concerning her plan to rob a fellow student sitting next to her, who she knew was carrying a large sum of cash. Rather than being a generalized argument about defendant's overall financial status, the text message was plainly relevant to the issue of defendant's motive to rob this particular victim. Under these circumstances, we conclude there was no error in the admission of the text message in evidence.
Finally, in Point V, defendant argues that her sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION