Opinion
DOCKET NO. A-3604-12T2
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRELL J. BALDON, Defendant-Appellant.
Beckman Roth Ogozalek & Perez, attorneys for appellant (Lilia Londar, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-0850. Beckman Roth Ogozalek & Perez, attorneys for appellant (Lilia Londar, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Darrell J. Baldon was convicted of amended charges: second-degree robbery, N.J.S.A. 2C:15-1(a)(2), and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1(a)(2), but acquitted of fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). On March 4, 2013, defendant was sentenced to six years' imprisonment subject to the No Early Release Act's (NERA's) eighty-five-percent parole ineligibility. See N.J.S.A. 2C:43-7.2(a). Defendant appeals and we affirm.
The State and defendant agreed to the amendment after the State rested.
At the trial, Maureen Valonis, the manager of a Dollar Tree Store in Cherry Hill, testified that she was robbed on the night of June 5, 2010, as she carried the day's receipts in her pocketbook to deposit at a nearby bank. She was accompanied by two store employees. As Valonis approached the bank, two masked men, one of whom was holding a gun, ran towards her yelling. After the man with the gun grabbed her purse, the assailants ran off. She momentarily gave chase, but stopped to call 911. The two employees, Jason Rodriguez and Kayla Cooper, followed store protocol by backing away from the incident for their safety.
Rodriguez also testified for the State. He said the men wore scarves around their mouths, which Valonis had described as bandanas. Rodriguez saw them run up to Valonis; the one holding the gun struggled to pull Valonis's purse away from her because "she just wouldn't let go." Valonis called out for help while down on her knees crying. The men escaped into some woods behind a nearby McDonald's.
Because it was a Saturday night in the summer, the mall was crowded as food businesses had remained open even after the Dollar Store closed. The incident was therefore witnessed by several people who gave chase, including William Zaun.
Zaun chased after the men in his Hummer until they ran into the wooded area, at which point he got out of his truck and was joined by others. He, like Valonis and several other bystanders, called 911. Zaun was on the phone when he heard the sirens of arriving patrol cars. People were coming out of their homes adjacent to the mall, and, as he testified, there were police "flying from all over the place."
Cherry Hill Police Officer Robert Danillo told those standing in front of their houses to get back inside because the robbers had a gun and that a canine squad was on the way. Danillo told Zaun and the other man with whom he was standing, who later turned out to be defendant, to get into the back of his patrol car for their own safety. After about ten minutes inside the vehicle, the officer told the men they needed to remain so he could take statements. Defendant said he had seen the incident from inside the McDonald's, but that he needed to leave to pick up his child.
The canine unit located the co-defendant, Justin Faust, and Zaun and defendant watched as he was escorted out of the woods in handcuffs. Both Zaun and defendant identified Faust as one of the perpetrators. Zaun also said that while in the car, defendant appeared "frantic[]" that although the cops "were decent with him," defendant seemed anxious to leave. He was sweaty and out of breath. Zaun could not tell from which direction defendant arrived since, as he put it, he just turned around and defendant "was there."
In addition to arresting Faust in the woods as he still held Valonis's purse while wearing a latex glove on one hand, the canine unit also located the imitation firearm, and a neoprene ski mask inside a latex glove inside a hooded sweatshirt. The sweatshirt was later found to have defendant's DNA, although the mixed DNA inside the latex glove could not be used for identification.
At the station, Faust gave a statement implicating defendant as his partner in the robbery. He told police he met defendant about two weeks earlier, did not know the person who had the idea for the robbery, and that Cooper, one of the two employees accompanying Valonis that night, was his girlfriend.
While accompanied by his attorney, defendant also gave a statement sometime later. He acknowledged being with Faust that night, whom he claimed he had met approximately three months earlier while working at a retail store. Defendant said he and Faust had been drinking at a mutual friend's home that evening and were still drinking in the car as they drove to the mall to pick up Faust's girlfriend. For that reason, when they arrived, they parked the car on a side street as they could see police vehicles in the mall proper. He and Faust sat at a bus shelter waiting for Cooper. When Faust began to walk towards her as the group of employees left the Dollar Store, defendant claimed he hung back because Faust's girlfriend did not like him, and he planned to surprise her by suddenly appearing as a practical joke. He said he was behind the bus stop when Faust walked away and that he did not see him put a mask or anything on his face. Defendant explained that he said nothing at the time to police as he did not think they would believe him, and that he discarded his hoodie because he panicked as he ran. He denied knowing how the latex glove or the neoprene mask ended up rolled inside his sweatshirt.
Both defendant's and Faust's statements were read to the jury. When the State called Faust, he denied remembering giving a statement to police and denied remembering anything about it, even after the prosecutor showed it to him. Faust's negotiated plea agreement with the State included his commitment to testify truthfully at Baldon's trial. The recommended sentence would be capped at six years' state prison subject to NERA. When sentenced, Faust received five years.
When Faust denied remembering giving a statement, the judge conducted a Gross hearing outside the presence of the jury. During the Gross hearing, Cherry Hill Police Detective Mark Buehler on cross-examination agreed that Faust was not forthcoming about details, such as the source for the inside information regarding the night deposit. Buehler was unable to verify Faust's claim that he and defendant had exchanged phone calls regarding the robbery plan. Buehler acknowledged that Faust was "vague" and "elusive" in his statement, if not outright dishonest at times, but suggested that Faust may have lied because he feared retribution.
State v. Gross, 121 N.J. 1, 10 (1990).
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Defense counsel argued that Faust's confession was too unreliable to be admitted under Gross. After systematically addressing each of the Gross factors, the judge nonetheless granted the State's motion, admitting it pursuant to N.J.R.E. 803(a)(1)(A). We reiterate her decision in greater detail later in this opinion.
On appeal, defendant raises two points:
I. The Jury's Verdict of Guilty Must Be Reversed Because the Verdict Was Against the Weight of the Evidence.
II. The Trial Court Erred in Allowing the State to Present Faust's Unreliable Taped Statement to the Jury.
I
Consideration of defendant's first point is barred by Rule 2:10-1, which prohibits a defendant from arguing on appeal that a jury verdict was against the weight of the evidence in the absence of a motion for a new trial. No motion for a new trial was made in this case. Although as defendant correctly notes, the issue can still be considered where necessary in the interests of justice, here the exception does not apply. See State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).
Three witnesses testified that two men, acting in concert, robbed Valonis. Defendant's statement contradicts their testimony in important respects. This includes his claim that he hung back at a bus shelter when Faust pulled a gun and attempted to rob Valonis. Two of the eyewitnesses, Valonis and Rodriguez, testified that two masked men, running side-by-side, approached the victim and forcibly took her purse. The men fled together, and Zaun concurred that when they fled, the men were together. Furthermore, when police recovered defendant's sweatshirt, identified as his by DNA, a mask and glove were rolled up inside. Defendant could not explain why a mask and glove would have been hidden in his sweatshirt. Therefore, since the interests of justice do not require our consideration of the point, the rule's exception does not apply.
II
Defendant's second point, that the trial judge's admission of Faust's statement was reversible error, also lacks merit. Our standard of review on evidentiary rulings is abuse of discretion. We only reverse those that "undermine confidence in the validity of the conviction or misapply the law." State v. Weaver, 219 N.J. 131, 149 (2014); State v. J.A.C., 210 N.J. 281, 295 (2012). Simply stated, we do "not substitute [our] own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." J.A.C., supra, 210 N.J. at 295 (internal quotation marks omitted).
N.J.R.E. 803(a)(1)(A) provides:
The following statements are not excluded by the hearsay rule:
. . . A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement . . . is inconsistent with the witness' testimony at the trial or hearing[,] is offered in compliance with [N.J.R.E.] 613[, and] is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability.
The rule is designed to "expose to the jury the possibility that the witness is lying, and to give the jury an alternative account of the events that it may choose to use as substantive evidence[.] The jury, however, must observe the witness and make a decision about which account is true." State v. Brown, 138 N.J. 481, 544 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997). The Brown court held that "a feigned lack of recollection is an inconsistency on which the admission of a witness's prior inconsistent statement may be based." 138 N.J. at 542. Such admissions do not deny defendant's right to confrontation. Id. at 543-44; accord State v. Slaughter, 219 N.J. 104, 117 (2014).
Before admitting a witness's prior inconsistent statements under this rule, the trial court "should be convinced by a preponderance of the evidence that the evidence is sufficiently reliable for presentation to the jury." Brown, supra, 138 N.J. at 539. To make this determination, the trial court must apply Gross's fifteen-factor reliability test. Ibid. In doing so, Judge Fox made the following findings:
. . . in this case [Faust] inculpated himself as being involved in this incident at the time of the statement.
. . . The statement was given to law enforcement.
. . . There is no dispute that [] Faust was in custody at the time that the statement was given.
. . . [Faust] was then in custody or otherwise the target of investigation.
. . . Now while there was some testimony by [] Buehler which I've reiterated already as to the condition of [Faust], the court has had the opportunity to listen to and review the actual statement sought to be introduced. [T]he court found no comments or even inferences of comments that would indicate that either the physical or mental condition of the declarant was impaired at the time.
. . . the testimony was that [] Buehler was the only other individual present at the time.
. . . In this particular case[,] the court finds that there was no significant effort to exculpate himself in giving the statement, while there were claims concerning whose idea it may have been or who had the gun initially. [F]aust did not seek to exculpate himself from this crime. . . .
. . . Obviously in this case we're referring to the waiver of rights, which was signed by [Faust]. But I do not believe that there was a handwritten statement[, a]nd none was introduced during the course of the [N.J.R.E.] 104 hearing.
. . . Obviously [] Faust was being questioned; however, . . . the questioning appeared to be, I don't want to use the word relaxed, certainly from what the court can glean from the detective's testimony as well as the statement itself and listening to the statement, [Faust] did not appear to be under any stress when he was responding and
there was nothing in the nature of the questioning that would cause this court's concern as to whether [] Faust was being intimidated or bullied or anything along those lines.
. . . The court finds that with the exception of some inaudible portions which[,] in light of the entire context of the statement, the [court] does not find those to be relevant with respect to the issue it is deciding today, . . . the recording contained the entirety . . . of the communication.
. . . The court could not discern any motive to fabricate from the statement itself. Again, [Faust] did not seek to exculpate himself by incriminating [] defendant, so the court does not find that to be a determinative factor.
. . . there were times when . . . Faust offered information. It does not appear that at any time he asked for food, or drink, or to go to the restroom[,] or anything to indicate that there were any pressures placed upon him. I discern no threats in the questioning. And I want to just reference a couple of things in the statement itself. For example, he was asked about his phone number. He actually corrected the officer when the officer gave . . . the wrong area code[.] I would also note that he volunteered [defendant's] name[,] and the name [] was an individual who was, in fact, at the scene at some point as established at least for purposes of this [N.J.R.E.] 104 hearing by witnesses, prior witnesses. There does not appear that the questioner, [] Buehler, put words in [Faust's] mouth. He was given the opportunity, again, he was not interrupted in the sense of being prevented from answering questions.
. . . It is [] clear from the questioning that [Faust] was aware of the purpose of the questioning. In fact, the testimony is that he volunteered to give a statement, and again, did not seek to exculpate himself.
. . . having listened to everything, having heard the statement, even despite the cross-examination, the court does not find for purposes of this hearing, does not discern any inherent lack of believability of the statement, again, and that goes into factor [fifteen], the presence or absence of corroborating evidence. There was corroborating evidence here. First of all, an individual named Darrell was referenced and he in fact, according to the testimony that has been given, was at the scene, at least at a later point in time, the gun was also testified to [by] Faust[,] thereby [again] presenting corroborating evidence.
One of the other things that I also wanted to mention, the fact that [Faust] also had [] prior contact with the criminal justice system, thus the interrogation was not his first contact with the criminal justice system.
Also, as far as corroborating evidence, the evidence concerning the reaction of the victim, which again was corroborated by testimony in the courtroom.
We repeat these findings because, based on our review of the record, and contrary to defendant's argument, they were grounded in the proofs and were sound. Faust's statement contained some inconsistencies and outright falsehoods. On the important points, however, Faust's statement was corroborated by other evidence. Defendant was present at the scene, his sweatshirt was located with incriminating items rolled up inside, and the eyewitnesses' testimony corroborated Faust's confession. We therefore agree with the judge's conclusion that, by a preponderance of the evidence, the statement was sufficiently reliable to be presented to the jury. The judge did not abuse her discretion by admitting the statement after Faust's lapse in memory.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION