Opinion
DOCKET NO. A-2552-10T2
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BURTON L. SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-06-0581.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
A jury convicted defendant Burton L. Smith of first degree robbery, N.J.S.A. 2C:15-1 (Count One); second degree aggravated assault (serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count Two); third degree aggravated assault with a deadly weapon causing bodily injury, N.J.S.A. 2C:12-1b(2) (Count Three); fourth degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (Count Four); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Five). The trial judge granted the State's motion for an extended term, merged Counts Two, Three, Four, and Five into Count One, and sentenced defendant to a fifty-year term of imprisonment subject to a No Early Release Act (NERA) eighty-five percent parole disqualifier.
N.J.S.A. 2C:43-7.2.
On March 6, 2009, James Spates had just cashed his weekly pay check. He left the check casher and was in the midst of sorting the money when a man approached him from the left and grabbed him. As verified by a young boy on his way to a nearby McDonald's for an after-school snack and the video surveillance camera from the check casher, Spates and the man began to struggle. Spates thought the man might be armed with a gun but quickly learned that he was armed with a knife as the man cut his arm. As the struggle continued, Spates dropped the money and his wallet, and his assailant slashed him several more times with the knife. Spates broke off the struggle when he realized his life was not worth his desire to retain his weekly wages.
His assailant picked up the money and entered the front passenger seat of a black Ford Explorer with a North Carolina license plate. Spates walked away from the scene bleeding profusely. He kept looking over his shoulder because the Ford Explorer did not immediately leave the scene. When he arrived at his place of employment, he collapsed on the floor. He had knife wounds on his left arm, back and abdomen. He was released from the hospital the next day.
Spates provided a description of his assailant and the car to the police. He described his assailant as an African-American male with long "dreads," a big nose and short in stature. He also identified defendant from a photo array shown to him the day after the incident and later in-court. In a statement to police, Spates described the car in which his assailant left the scene, as well as the license plate number. The video surveillance confirmed the make, model and color of the car in which the assailant left the scene.
Police located the black Ford Explorer the next day at a nearby motel. As co-defendant Christina Rourk-Moore, defendant, and two other women entered the car and prepared to leave, several police cars surrounded the Ford Explorer and removed its occupants. The car was registered in the name of co-defendant, who provided consent to search it and the room defendant and she occupied at the motel. A frisk of defendant revealed a folding knife in his rear pocket.
As noted, Spates bled profusely from his wounds. His work shirt was saturated with blood and there were numerous blood deposits on the floor of his workplace. DNA analysis of the victim's blood and residual blood on the knife taken from defendant revealed that Spates was the major contributor to the blood on the knife. The analyst testified that "[t]he probability of selecting an unrelated individual at random with the DNA types obtained from Spates to the tape adhering to the silver knife handle is approximately one in 120 quintillion African-Americans[.]"
On appeal, defendant raises through counsel the following arguments:
POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF PREJUDICIAL TESTIMONY ELICITED BY CO-COUNSEL DURING CROSS-EXAMINATION OF DETECTIVE MICHAEL RICCI ARISING OUT OF THE TRIAL COURT'S RULING PERMITTING THE STATE TO REOPEN ITS CASE TO PRESENT ADDITIONAL TESTIMONY FROM HIM.
POINT II: THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY INSTRUCT THE JURY PURSUANT TO N.J.R.E. 404(B) REGARDING THE TESTIMONY ELICITED AT TRIAL FROM DETECTIVE RICCI INVOLVING THE CO-
DEFENDANT'S FEAR OF THE DEFENDANT ARISING OUT OF A PREVIOUSLY EXISTING RESTRAINING ORDER. (NOT RAISED BELOW).
POINT III: THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE INSTRUCT THE JURY REGARDING THE DEFENDANT'S PHOTOGRAPH WHICH WAS PART OF THE PHOTOGRAPHIC ARRAY SHOWN TO THE VICTIM WHICH WAS CHARACTERIZED BY HIM AS CONSTITUTING A "MUG SHOT". (NOT RAISED BELOW).
POINT IV: THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO ACCURATELY REFLECT THE SENTENCE IMPOSED ON COUNT IV.
POINT V: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES AS IT MAY HAVE INTO COUNT V CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (NOT RAISED BELOW).
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant raises the following arguments:
Point I: Defendant's right to trial by an impartial jury was violated when a sleeping juror was allowed to continue sitting and ultimately deliberate on defendant's guilt.
Point II: The trial court erred in violating defendant's 6th amendment to United States Constitution and by the Constitution of New Jersey U.S. Const. amend. VI. N.J. Const. art I. Para. 10. The trial court erred in
violating [the] confrontation clause [of] the Fourteenth Amendment.
Point III: The trial [court] erred when it allowed the prosecutor to allow a photographic lineup statement without recorded words exchanged between the witness and the officer conducting the identification procedure, either by tape recordings or written statements at the initial time of identification procedure.
Having reviewed the record in its entirety, we conclude that most of the arguments presented by defendant through counsel and in his pro se supplemental submission, particularly the mug shot references and the bad acts evidence, are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm the conviction.
During cross-examination, the victim referred to seeing mug shots on two occasions. The question posed by defense counsel did not prompt that reference. Defense counsel did not object. The trial judge did not offer a sua sponte instruction contemporaneously or in the final instructions to the jury. References to "mug shots" are inappropriate because they communicate to the jury that the defendant has a criminal record. State v. Harris, 156 N.J. 122, 173 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). Although the reference should not have occurred, defendant must demonstrate that the error was clearly capable of producing an unjust result. R. 2:10-2; State v. Walker, 203 N.J. 73, 89-90 (2010). Defendant cannot meet this standard.
Fleeting references to impermissible information, such as a description of a photograph as a mug shot, will generally not be considered error of such magnitude to warrant reversal. Harris, supra, 156 N.J. at 173. Here, the reference occurred twice but both references were fleeting. Ordinarily, we require much more than a brief mention to a mug shot to find that the trial record has been unilaterally tainted. See State v. Johnson, 421 N.J. Super. 511, 522 (App. Div. 2011) (detective's testimony that he used a program called "Mug Master" to achieve a photo identification coupled with a Bankston /Branch error required a new trial). Here, an objection by counsel or a sua sponte instruction by the trial judge might have focused the attention of the jury on the possibility of a prior criminal record.
State v. Bankston, 63 N.J. 263 (1973).
State v. Branch, 182 N.J. 338 (2005).
Also, the fleeting reference by one of the detectives to a restraining order, presumably a domestic violence restraining order, between defendant and co-defendant, cannot be considered so prejudicial to merit a new trial. So, too, co-defendant's explanation, that she provided a false initial statement because she feared defendant, could not have unduly prejudiced defendant in the eyes of the jury. The evidence implicating defendant as Spates's assailant was overwhelming. The manner in which defendant separated Spates from his weekly wages was sudden and violent. The existence of a domestic violence restraining order suggests that defendant is a violent man; however, other evidence already established that fact. The possibility of undue prejudice to defendant from these two facts is too remote to conclude that the references to both produced an unjust result.
The judge's failure to take more affirmative measures to verify that one of the jurors may have slept through certain portions of the trial, and, if so, take appropriate measures to address that problem is more troubling. However, viewed in context of the entire trial, including the efforts taken by the trial judge to address the problem, we discern nothing suggests that defendant did not receive a fair trial.
Defendant, through his attorney, notified the judge twice that one of the jurors might be sleeping. The prosecutor did not corroborate defendant's observations. Once placed on notice of the possibility that a juror might be having difficulty giving her full attention to the testimony, the record reflects that the trial judge took extra care to observe the juror. On one occasion, the judge specifically asked the juror "are you all right?" She replied that she was "all right." On another occasion, the judge adjourned the trial early for lunch and instructed the jury before it departed that he had noticed that "some of you have been a little bit nodding off[.]" The judge reminded them that it was very important that they pay close attention to the evidence. On another occasion, the judge motioned to the adjacent juror to give the "sleeping" juror a nudge. The targeted juror responded by closing her eyes and pointing to her ears to suggest she was listening.
Interestingly, neither defense counsel suggested a voir dire examination of the alleged sleeping juror to ascertain if she had indeed been listening to the testimony. Defense counsel also urged no other curative measures.
The trial judge did not ignore the situation. He monitored the behavior of the identified juror, took reasonable measures to assure that she and the entire jury remained alert, and reminded the jury of the importance of paying close attention to the evidence. In the absence of direct evidence that the juror actually slept through critical portions of the trial and the absence of requests by defense counsel to take more affirmative measures to assure that the juror had not missed critical evidence, we discern no error.
Finally, defendant urges that Count IV (unlawful possession of a weapon) should have merged with Count V (possession of a weapon for an unlawful purpose) and Count I (armed robbery) and that his fifty year term of imprisonment on Count I is excessive. The State concedes that Count IV should have merged with Count V. Interestingly, although the term announced orally at sentencing controls, see State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 1991), the judgment of conviction already reflects a merger of Count Four. Therefore, a remand is not required. The State urges, however, that the trial judge properly imposed an extended term and the aggravating and mitigating factors support the fifty year term. We agree.
When a sentence is challenged on appeal as excessive, a reviewing court must first determine whether the correct sentencing guidelines have been followed. State v. Roth, 95 N.J. 334, 365 (1984). The fundamental sentencing guideline of the Code is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367.
A reviewing court must then determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, it must determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.
When a trial court follows the sentencing guidelines, a reviewing court should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Id. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, the reviewing court must affirm the defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. In other words, unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).
In four opinions over the last three years, the Supreme Court has further clarified the scope of our review of a sentence. In State v. Cassady, 198 N.J. 165, 183 (2009), the Court reviewed a sentence consisting of consecutive maximum terms of imprisonment for two second degree robbery offenses. Noting that a twenty-year term "may, at first blush, appear harsh," the Court affirmed the sentence because the judge faithfully applied the Yarbough factors and applied the aggravating and mitigating factors appropriately. Ibid. Under these circumstances, the Court held that the sentence could not be disturbed. Id. at 183-84. The Court stated:
State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
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In those instances, our task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed "shocks the judicial conscience."The Court found that the twenty-year term did not "shock[] the judicial conscience" and affirmed. Id. at 184.
[Ibid.]
In State v. Bieniek, 200 N.J. 601, 608 (2010), the Court extended the rule of appellate deference to trial court sentencing discretion to the explanation delivered at sentencing in support of the selected sentence. The defendant pled guilty to first degree aggravated manslaughter and second degree aggravated assault pursuant to a plea bargain in which the State recommended an eighteen-year term of imprisonment. Id. at 605. This court remanded for reconsideration of the sentence and to permit the defendant's counsel to argue for a reduced sentence. Id. at 606. In a supplemental statement of reasons for the remand, this court explained that it needed a full discussion of the mitigating factors argued by the defendant and apparently rejected by the sentencing judge. Id. at 607. Although the Court acknowledged the explanation provided by the sentencing judge "is important for meaningful appellate review," id. at 608, the Court emphasized the sentencing judge is not required to explicitly accept or reject each mitigating factor advanced by a defendant, id. at 609. Rather, if the sentencing judge provides reasons for imposing a sentence and if the reviewing court "can readily deduce" the judge's consideration of relevant mitigating factors, an appellate tribunal may not disturb the sentence. Ibid. The Court proceeded to review the judge's explanation at sentencing and discerned he considered and rejected mitigating factors two, four, seven, and nine, even though the judge did not specifically refer to those mitigating factors. Id. at 609-10. In conclusion, the Court emphasized an appellate court will defer to a sentence if the judge adheres to the sentencing principles of the Code and case law, and further remarked that appellate disturbance of such a sentence is unacceptable "second-guessing." Id. at 612.
In State v. Thomas, 195 N.J. 431, 437 (2008), the Court underscored the need for an explanation for imposing an extended term on a particular count, especially when the count selected by the judge is contrary to the request of the prosecutor. In the absence of that explanation, the remedy is a remand to the sentencing judge or our exercise of original jurisdiction. Ibid.
Finally, in State v. Miller, 205 N.J. 109, 129 (2011), the Court again addressed the deference an appellate panel must accord to a sentence and the appropriateness of a remand for further explanation of the imposed sentence. In Miller, the judge imposed consecutive terms on two robbery counts. Id. at 117. In spite of the admonition in Yarbough, supra, 100 N.J. at 643, that a judge must state the reasons for imposing a consecutive term, the Miller judge did not address the Yarbough factors. Id. at 129. The Court held the remedy for such an omission is a remand to the sentencing court. Id. at 131. The Court recognized it had previously instructed this court to conduct its review of a sentence to determine whether we could "'readily deduce'" the reasons for the sentence. Id. at 129 (quoting Bieniek, supra, 200 N.J. at 609). The Court emphasized, however, the absence of any explanation forecloses an appellate panel from performing that exercise. Id. at 129-30. The Court explained:
We can safely "discern" the sentencing court's reasoning when the record is clear enough to avoid doubt as to the facts and principles the court considered and how it meant to apply them. To go further, however, may involve speculation about what the sentencing court meant.Applying this standard, we identify no basis to disturb the sentence.
[Id. at 130.]
Imposing an extended term sentence is a four-step process. The court must (1) determine if the minimum statutory predicates have been met, (2) decide whether to impose an extended term, (3) weigh the aggravating and mitigating factors to determine the base of the sentence, and (4) determine whether to impose a period of parole ineligibility. Dunbar, supra, 108 N.J. at 89. Determining the sentence within the extended range is a matter within the court's "sound judgment" based on their weighing of the aggravating and mitigating factors. State v. Pierce, 188 N.J. 155, 169 (2006). Consequently, the sentence is reviewed for abuse of discretion. Id. at 169-70.
Defendant was sentenced to an extended term as a persistent offender. The court is permitted to sentence a defendant to an extended term if he qualifies as a "persistent offender," meaning
a person who at the time of the commission of the crime is 21 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 18 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 10 years of the date of the crime for which the defendant is being sentenced.Prior convictions from other jurisdictions qualify under this statute, so long as the law of that jurisdiction authorized sentencing of six months or more. N.J.S.A. 2C:44-4c.
[N.J.S.A. 2C:44-3a.]
Here, defendant met the minimum qualifications for imposition of an extended term. He was twenty-five years of age when he robbed Spates at knifepoint. He had been convicted of four offenses in North Carolina. All prior convictions occurred after December 26, 2001, defendant's eighteenth birthday, and the last conviction occurred on April 11, 2005, well within the ten-year requirement for a persistent offender. The prior convictions included two convictions for assault causing serious bodily injury, possession of a firearm by a felon, and theft of a motor vehicle. Defendant's record supported the decision to impose an extended term.
The term selected by the trial judge is a legal term. N.J.S.A. 2C:43-7a(2). The fifty-year term is supported by a history of violent behavior undeterred by repeated convictions and two prior periods of incarceration. It is also consistent with sentences in other cases for similar behavior. See State v. Cotto, 182 N.J. 316, 338 (2005); State v. Hawkins, 316 N.J. Super. 74, 82 (App. Div. 1998), certif. denied, 162 N.J. 489 (1999).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION