Opinion
DOCKET NO. A-5243-09T2
01-27-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PERCY HENRY PATRICK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Ashrafi and
Fasciale.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment No. 08-10-00885.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Matthew
M. Bingham, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant appeals from his conviction for third-degree theft from the person, N.J.S.A. 2C:20-2(b)(2), disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). The judge imposed an aggregate term of five years in prison with twenty months of parole ineligibility. We affirm.
At approximately 4 a.m. on February 8, 2008, the victim, whom we refer to as M.C., left his home and rode his bicycle to pick up breakfast before going to work. As he turned onto a different street, defendant came from behind a vehicle, punched M.C. in the forehead, knocking him to the ground, and said, "'Give me the money and give me the bike.'" M.C. recognized defendant and said, "'Percy, it's me, [M.C.].'" Defendant again demanded the money and the bicycle and struck M.C. in the head two more times.
When M.C. attempted to get back on his bicycle, defendant grabbed him by the collar, pulled him off, and struck him in the mouth. Defendant tried unsuccessfully to reach inside M.C.'s pockets. M.C. then fled down the street toward the police station. About two minutes later, he flagged down Police Officer Edward Connolly.
M.C. was "bleeding from his head," did not appear intoxicated, and was "excited, upset." He told Connolly what had happened, provided defendant's name, and described the bicycle. Connolly relayed this information over the police radio.
A couple of minutes later, Detective Jeffrey Parvin located defendant riding the bicycle about one and a half blocks from where M.C. had flagged down Connolly. Defendant tried to avoid Parvin, who rolled down his window, identified himself as a police officer, and asked defendant to stop. Defendant continued to ride, doubled back, and rode by Parvin's car. The detective yelled to defendant to stop, but he did not. The detective switched on his strobe lights and siren, blew his air horn, and followed defendant.
After doubling back again to avoid the detective, defendant came into contact with Officer Jason Hovermann, who exited his marked police car and ordered defendant to stop. When defendant still did not stop, Hovermann tackled him off the bicycle and advised him that he was under arrest. On the ground, defendant concealed his hands under his body to avoid being handcuffed, ignored orders to cooperate, flailed his legs, and kicked out at the officers. At that point, Parvin sprayed defendant with a burst of pepper spray, and defendant stopped resisting. Defendant sustained no injuries and was treated for the pepper spray.
At the police station, defendant gave a recorded statement. He claimed that M.C. was on the bicycle trying to buy cocaine. Defendant said he gave M.C. two five dollar bills for a ten dollar bill, and that M.C. then went into a house. Defendant claimed that he then noticed that instead of a ten dollar bill, M.C. had merely given him back one of the five dollar bills.
Defendant stated that when Parvin saw him, he was sitting on M.C.'s bicycle waiting for him to return. Defendant then changed his story and said he confronted M.C. about the money and M.C. walked away, leaving defendant with the bicycle. Defendant later stated that he and M.C. were fighting, during which time defendant was sitting on the bicycle. Defendant also claimed that M.C. was on the bicycle, rode into a parked car, and fled on foot, at which point defendant took the bicycle to keep it from "crackhead girls." Subsequently, M.C. identified and recovered the bicycle.
A grand jury indicted defendant and charged him with second-degree robbery, N.J.S.A. 2C:15-1(a), fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). After a hearing, a judge denied defendant's motion to suppress his statement to police. In October and November 2009, a different judge conducted a five-day jury trial. The jury acquitted defendant of third-degree resisting arrest, but convicted him of fourth-degree resisting arrest and the lesser included offenses of simple assault and theft from the person.
On appeal, defendant raises the following points:
POINT ONE
DEFENDANT'S STATEMENT TO THE POLICE WAS NOT MADE AFTER A KNOWING, INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHTS.
POINT TWO
DEFENDANT WAS PREJUDICED BY THE PRESIDING CRIMINAL PART JUDGE'S REFUSAL TO PERMIT A PLEA TO THE STATE'S AMENDED PLEA OFFER.
POINT THREE
THE TRIAL COURT UNDULY LIMITED DEFENDANT'S USE OF THE CRIMINAL CONVICTIONS OF [M.C.] TO IMPEACH HIS CREDIBILITY.
POINT FOUR
THE TRIAL COURT'S ADMISSION INTO EVIDENCE OF THE RECORDED POLICE STATEMENT OF [M.C.] WAS ERROR.
POINT FIVE
DEFENDANT WAS PREJUDICED BY DETECTIVE PARVIN'S REFERENCE TO HIS CRIMINAL HISTORY.
POINT SIX
THE PROSECUTOR'S IMPROPER COMMENTS DURING HIS SUMMATION DENIED DEFENDANT A FAIR TRIAL.
POINT SEVEN
THE TRIAL COURT FAILED TO CHARGE THE JURY AS TO THE LESSER INCLUDED OFFENSE OF RESISTING ARREST AS A DISORDERLY PERSONS OFFENSE.
POINT EIGHT
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
We begin with defendant's argument that he did not make a knowing, intelligent waiver of his Fifth Amendment rights because he gave his statement an hour after being sprayed with pepper spray and had earlier taken heroin and Seroquel. We disagree.
The Fifth Amendment to the United States Constitution and this State's common law guarantee criminal defendants a right against self-incrimination. State v. Presha, 163 N.J. 304, 312-13 (2000). Admissibility of a defendant's custodial statement requires a knowing, intelligent, and voluntary waiver of Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966). To determine whether such waiver resulted from free will or police coercion, we consider the totality of the circumstances, including "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Knight, 183 N.J. 449, 462-63 (2005) (citing State v. Galloway, 133 N.J. 631, 654 (1993)); State v. Nyhammer, 197 N.J. 383, 402 (2009).
Our review of the denial of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the hearing judge's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). The judge observes the character and demeanor of the witnesses and is therefore better positioned to determine credibility. State v.
Locurto, 157 N.J. 463, 474 (1999).
At the suppression hearing, the judge viewed a videotape of defendant's recorded statement and made the following findings:
See State v. Yohnnson, 204 N.J. 43, 62 (2010) (judge entitled to rely on videotape to assess the totality of circumstances).
This [c]ourt has before it the credible testimony of the witnesses. But more importantly, the [c]ourt has before it a videotape. There is absolutely no better evidence in this [c]ourt's mind than a videotape.Additionally, the judge found "[t]he testimony of the witnesses, [Connolly and Parvin,] the two officers that testified, . . . to be credible, very frankly, in all respects[.]" The judge also pointed out that in the presence of the two officers, defendant "signed the statement, and printed in his own hand, 'I am willingly giving this recorded statement.'"
This [d]efendant was coherent. He was articulate. And he was responsive, appropriately responsive, to each and every question asked.
I point in particular to his having stated a number of things showing his ability to think. "You people are responding to his wounds. The wounds are from crashing his bike." It shows thought processes. It shows an attempt to decriminalize any activity on the part of the [d]efendant.
He asks [the police] to use a little commonsense. "Why would I stick around?" He's making arguments. He's using thought processes. This doesn't show someone who is confused. This doesn't show someone who is intoxicated.
[I]f it's true that he took heroin, that doesn't negate his voluntariness. If he were intoxicated, if he were confused, if he were unable to understand, if he had
difficulty in perceiving the Miranda Warning, I don't find that to be the case.
There was absolutely no sign of confusion on his part, no sign of intoxication, in my viewing the videotape. His answers were responsive to the questions. He went, as the Prosecutor suggested, over and above. He basically was trying to decriminalize any activity that he was involved in.
I don't know to what extent this statement would be helpful to the State, but I don't find that it was taken in violation of [d]efendant's Constitutional rights to remain silent and to be advised of his right to counsel, et cetera.
I find that this [d]efendant made a knowing, voluntary and intelligent statement, which statement may be used in evidence against him.
On appeal, defendant argues that he could not have made a knowing and intelligent waiver because the police sprayed him with pepper spray and he had taken heroin and Seroquel. He contends that any doubt should be resolved in his favor and relies on State v. McCloskey, 90 N.J. 18, 28-29 (1982), and State v. Flower, 224 N.J. Super. 208, 216 (Law Div. 1987), aff'd o.b., 224 N.J. Super. 90 (App. Div. 1988). These cases, however, do not support defendant's position.
In McCloskey, supra, 90 N.J. at 29, the defendant had "clearly requested counsel." Here, defendant did not request counsel and at no time indicated that he wished to retract his waiver or invoke his Miranda rights. Flower is equally inapposite. There, the defendant had the "limited intelligence of a six- or seven-year-old child." Flower, supra, 224 N.J. Super. at 211, 216. The record before us gives no indication that defendant lacked sufficient intelligence to make a valid waiver. We conclude that the judge made thorough and comprehensive findings supported by sufficient credible evidence in the record and correctly ruled that no violation of defendant's Fifth Amendment rights had occurred and that his statement could be admitted into evidence against him.
Next, we consider whether the judge improperly limited the use of M.C.'s 1981 rape conviction by not allowing defense counsel to reveal the nature of the offense on cross-examination. Defendant argues that M.C.'s credibility was the only purpose for which the jury would have used knowledge of the nature of the conviction and sanitizing the conviction therefore "usurped the function of the jury." He also contends that a court may only sanitize the convictions of a testifying criminal defendant, not other witnesses. We disagree.
Defendant relies on State v. Brunson, 132 N.J. 377, 392 (1993), and State v. Hamilton, 193 N.J. 255, 257 (2008), which both discuss the limited use of prior convictions of testifying defendants. In Brunson, supra, 132 N.J. at 391, our Supreme Court held that when the State introduces a testifying defendant's prior conviction that is the same as or similar to the offense charged, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." In Hamilton, supra, 193 N.J. at 269, the Court explained that Brunson did not "foreclose from trial courts the discretion to consider sanitization of prior conviction evidence in any other circumstance that posed a risk of undue prejudice to a defendant." However, nothing in these cases indicates that they should be construed to restrict a trial court's discretion to limit the use of prior convictions of other witnesses, and defendant indicates no case law to support such a rigid rule.
Defendant's understanding of Brunson and Hamilton ignores our Supreme Court's recognition of the discretion of trial judges to control prejudicial impeachment evidence:
[T]rial courts are expected to exercise control over the admission of relevant evidence, including impeachment evidence. [W]here impeachment evidence bears remotely upon the credibility of the witness, its admission must be left to the discretion of the judge, otherwise the jury might be confused by the multitude of collateral issues. Further, our rules of evidence specifically allow[] trial courts to exclude, in their discretion, substantially prejudicial evidence of limited probative value.Furthermore, we have held that judges have "the authority to place 'reasonable limitations' upon a defendant's cross-examination of a witness." State v. Leonard, 410 N.J. Super. 182, 188 (App. Div. 2009) (quoting Vasquez v. Jones, 496 F.3d 564, 571 (6th Cir. 2007)), certif. denied, 201 N.J. 157 (2010).
[Id. at 264 (internal quotation marks and citations omitted).]
We conclude that the judge did not abuse his discretion in limiting the use of M.C.'s 1981 rape conviction. The judge correctly found that permitting defense counsel to reveal the names of the offenses "could potentially mislead the jury":
It could incite, because of the nature of the offenses. And so long as I allow counsel to cross-examine on the type of offense, the degree [of] offense[,] . . . [t]he type of sentence received[,] and the date of the offense, . . . the jury would have sufficient information to consider that in the issue of truthfulness.We also point out that defense counsel did not possess at trial a judgment of conviction for the 1981 conviction, and that the court allowed cross-examination of M.C. on all other aspects of that conviction and did not limit the use of M.C.'s three other convictions from 1998, 2008, and 2009.
And I don't see how [the jury] being advised that the underlying charge is a
[s]odomy charge or a sex offense . . . [w]ould add to the necessity or add to their being able to consider his truthfulness today.
Next, we consider whether the court erred in admitting a portion of M.C.'s recorded police statement to allow the State on redirect to rebut the implication, brought out on cross-examination, that M.C. had fabricated his story or had a motive to lie. Defendant argues that "[w]here a cross-examination charges that the story of the witness has been a lie since its inception, the recent fabrication prerequisite of N.J.R.E. 607 has not been satisfied, and the proffered extrinsic evidence may not be admitted." Defendant also argues that the court compounded the error by giving improper limiting instruction. We disagree.
"It is fundamental that a prior consistent statement may be admitted in evidence under [N.J.R.E. 607] to support the credibility of a witness in order to rebut an expressed or implied charge against him of recent fabrication." State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.) (citing State v. Sinclair, 49 N.J. 525, 546-47 (1967)), certif. denied, 118 N.J. 214 (1989). When "defense counsel has cross-examined a witness regarding inconsistencies between the trial testimony of the witness and his prior statement, the admission of the prior statement [is] entirely proper to clarify the inconsistencies pointed out through cross-examination." Id. at 556.
Here, the judge did not abuse his discretion by allowing the State to play part of M.C.'s recorded statement after defense counsel had impeached M.C. on his prior statement. The judge also issued an appropriate limiting instruction:
Although defense counsel objected to the statement's admissibility, he failed to object to the limiting instruction. "'[F]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made,' and it 'also deprives the court of the opportunity to take curative action.'" Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009) (quoting State v. Timmendequas, 161 N.J. 515, 576 (1999)). On appeal, defendant has not shown plain error clearly capable of producing an unjust result. R. 2:10-2.
[T]his prior statement is not being introduced to support the credibility of the witness, but it's being introduced for the limited purpose to rebut an express or implied charge against this witness of recent fabrication, or of improper influence or motive. So, I want you to understand that would be the limited purpose.Further, the judge allowed defense counsel to conduct recross-examination to mitigate any perceived harm caused by playing the recording.
After considering the record and briefs, we conclude that the remainder of defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." Rule 2:11-3(e)(2). We add the following comments.
Two days before trial, the State learned that M.C. had two new criminal convictions and that defendant had proposed two new defense witnesses. The State offered a last-minute plea deal, but the court rejected the offer because the plea cut-off date had passed. Defendant argues that the judge abused his discretion in doing so, and that the new evidence constituted "a material change of circumstance." Rule 3:9-3(g).
Rule 3:9-3(g) provides that "[a]fter the pretrial conference has been conducted and a trial date set, the court shall not accept negotiated pleas absent the approval of the Criminal Presiding Judge based on a material change of circumstance, or the need to avoid a protracted trial or a manifest injustice."
--------
We do not alter a trial court's plea cut-off decision "unless there is a showing of patent and gross abuse of discretion constituting a miscarriage of justice." State v. Brimage, 271 N.J. Super. 369, 378 (App. Div. 1994). Here, the judge correctly applied the plea cut-off rule and did not abuse his discretion by rejecting the State's plea offer. The jury had already been chosen and the trial was set to begin the next day. Moreover, "[p]lea bargaining is not a right of a defendant or the prosecution. It is an accommodation which the judicial system is free to institute or reject." Id. at 379.
Defendant also argues that Parvin's comment on direct examination that he knew defendant "by name and stature" was an improper reference to defendant's criminal history. However, nothing in the record suggests that Parvin knew defendant from prior criminal encounters, and it is not "obvious" that the jury would have taken the detective's statement to indicate such. "Contrary to defendant's suggestion, the limited exchange would not have supported an inference by the jury that defendant had been involved in prior criminal activity[.]" State v. Love, 245 N.J. Super. 195, 197-98 (App. Div.) certif. denied, 126 N.J. 321 (1991). The reference was "fleeting and inadvertent." State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985). Moreover, defense counsel failed to make a contemporaneous objection, "'rendering it fair to infer . . . that in the context of the trial the error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42-43 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).
Further, defendant contends that he was entitled to a mistrial after the prosecutor commented during summation that defendant was "either directly dealing drugs . . . or making change for a drug dealer." The judge sustained defense counsel's objection to the comment, denied the motion for a mistrial, and issued a curative instruction to the jury: "there's perhaps an inference that was placed out there that [defendant] was selling drugs on this particular evening, and there's no evidence before you to suggest that."
Prosecutors "are expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)), and we afford them "considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." Timmendequas, supra, 161 N.J. at 587 (citing Harris, supra, 141 N.J. at 559). Whether a prosecutorial misstep can be "cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is [a decision] that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984).
Here, defense counsel made a timely objection, which the judge correctly sustained. The judge then issued a clear, contemporaneous and adequate curative instruction, after which the offending comment had no capacity "to lead to a verdict that could not otherwise be justly reached." Id. at 647.
Defendant also argues that the trial court should have charged the jury with the lesser included offense of resisting arrest as a disorderly person. Because defense counsel did not object at the time of the charge, the plain error standard applies. R. 2:10-2. However, defendant has not shown that the alleged error was "clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (citing State v. Chew, 150 N.J. 30, 82 (1997)); Jackowitz, supra, 408 N.J. Super. at 495.
We also disagree that defendant received an excessive sentence because the judge sentenced him in the upper range for a third-degree offense. Our review of a sentence is limited, State v. Roth, 95 N.J. 334, 364 (1984), and we do not substitute our judgment for that of the sentencing judge or impose our view of an appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). If the judge followed the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990).
The judge must identify and balance the relevant aggravating and mitigating factors, N.J.S.A. 2C:44-1, and explain how he arrived at the sentence. State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354 (1987)). When competent credible evidence in the record supports the judge's findings, we are bound to affirm, even if we would have arrived at a different result. Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)); Roth, supra, 95 N.J. at 364-65.
Here, the lengthier sentence was appropriate because aggravating factors greatly outweighed mitigating factors. Defendant has had thirty-three arrests, nine disorderly persons convictions, nine indictable convictions, and two parole violations. The judge found the record "atrocious" and noted that defendant "frankly cannot stay law-abiding." Furthermore, there was no manifest injustice in the five-year sentence and twenty-month period of parole ineligibility. Roth, supra, 95 N.J. at 363-65. Although a court can impose a five-year sentence for a second-degree offense, defendant ignores the fact that the court can impose the same sentence for a third-degree offense, as occurred here. Because defendant's sentence is not "clearly mistaken," Jarbath, supra, 114 N.J. at 401, and does not "shock the judicial conscience," Roth, supra, 95 N.J. at 365, we must affirm.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION