Opinion
DOCKET NO. A-2074-12T4
04-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAROLD E. DUFFUS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-12-1939. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant was convicted of first-degree robbery of merchandise from Home Depot, as well as other offenses, and sentenced to a fifteen-year prison term. In this appeal, he argues, among other things, that the trial judge erroneously determined that a statement defendant gave to a Home Depot employee was voluntary and admissible and that the judge also unduly assisted the prosecution, thus depriving him of a fair trial. Finding no merit in these or any of defendant's other arguments, we affirm.
During the trial, the jury heard testimony that, on August 20, 2011, Home Depot loss prevention officer Christopher Decker watched defendant, who appeared nervous, select a Bosch hammer drill, which retailed for $589, and place it in his shopping cart. Defendant also placed a mailbox in his cart and proceeded to the back aisle of the outside garden department where he used a box cutter to open the two containers. Defendant placed the drill in the mailbox container, which he closed with tape, and proceeded to a self-checkout register, where he paid $26.72 for the mailbox.
Decker followed defendant out of the store, identified himself as a loss prevention officer, and asked defendant to come back into the store. Defendant refused, and Decker grabbed defendant's arm and wrist to lead him into the store. Defendant resisted and fought off Decker. According to Decker, defendant said "if you don't let me go I'm going to . . . cut you up." Knowing defendant was in possession of a boxcutter, which he used to open the cartons containing the drill and mailbox, Decker expressed he was "in fear for [his] life." But when defendant reached into his pocket and took out a "dark blue blade," Decker squeezed his wrist until defendant released the blade. Defendant then agreed to go back into the store.
Decker viewed and saved the video footage of defendant's activity, but neither he nor Home Depot was able to retrieve the video for trial.
Decker took defendant to a back office at Home Depot where defendant gave a statement admitting he stole the drill because he was a heroin addict and needed the money. During the trial, the judge conducted a hearing outside the jury's presence to determine whether this statement was voluntary. In this regard, Decker testified defendant was alert and coherent and did not appear intoxicated or disabled, although he did look nervous. During Decker's questioning, defendant was unrestrained and the door was open. Decker said that if defendant asked for food or water or to use the lavatory it would have been permitted; defendant made no such request. Decker testified he did not make defendant any promises or threaten or coerce defendant in any way. Defendant did not testify during this hearing. The judge found the statement was voluntarily made and admissible.
The only other testimony at trial came from a police officer, who arrested defendant. Defendant did not testify, nor did he call any witnesses.
The jury found defendant guilty of: third-degree theft of moveable property with a value less than $200, N.J.S.A. 2C:20-3; first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant moved for a new trial, which the judge denied the same day he sentenced defendant, as a persistent offender, to a fifteen-year prison term on the first-degree robbery conviction, into which the other convictions merged.
Defendant appeals, arguing:
I. ALTHOUGH NOT THE PRODUCT OF ACTUAL POLICE CONDUCT, DEFENDANT'S STATEMENT WAS NONETHELESS INVOLUNTARY, AND THUS INADMISSIBLE, BECAUSE IT WAS COERCED BY LOSS PREVENTION OFFICER DECKER.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO REDACT DEFENDANT'S STATEMENT TO REMOVE THE COMMENT, IN ANSWER TO DECKER'S QUESTION "WHY ARE YOU HERE TODAY DOING THIS?" THAT DEFENDANT COMMITTED THE INSTANT OFFENSE BECAUSE HE WAS A HEROIN ADDICT AND NEEDED THE MONEY. IT BORE LITTLE PROBATIVE VALUE YET TREMENDOUS RISK OF UNDUE PREJUDICE WHICH THE TRIAL COURT'S INADEQUATE CURATIVE INSTRUCTION DID NOTHING TO AMELIORATE.
III. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON SELF-DEFENSE VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL, MANDATING REVERSAL OF DEFENDANT'S ROBBERY CONVICTION (Partially Raised Below).
IV. THE TRIAL COURT'S INTERFERENCE IN THE PRESENTATION OF THE CASE BY REMINDING THE PROSECUTOR TO ELICIT TESTIMONY REGARDING
DEFENDANT'S STATEMENT AFTER THE PROSECUTOR COMPLETED HER DIRECT EXAMINATION OF LOSS PREVENTION OFFICER DECKER, OVERWHELMINGLY FAVORED THE STATE REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.We find insufficient merit in Points II, III, and V to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject Points I and IV for the following reasons.
V. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
As to Point II, we would only add that the decision to redact defendant's reference to his drug addiction was a matter of discretion. And when it was admitted, the judge provided an appropriate admonition that the alleged drug addiction was to be considered by the jury only as to defendant's motive and not as the means of suggesting defendant had a propensity to crime.
As to Point III, throughout the charge conference, defense counsel repeatedly stated he was not requesting a self-defense instruction. And at no time did that issue come up during the attorneys' closing statements. Moreover, whatever occurred in the parking lot between defendant and Decker could not form a basis for a defense to the first-degree robbery charge, because the robbery had already occurred.
I
In considering defendant's argument that his statement to Decker should have been suppressed, we must first recognize that a trial judge's factual findings "should be disturbed only if they are so clearly mistaken that the interest of justice demand intervention and correction." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We will not intervene when "those findings are supported by sufficient credible evidence in the record." Id. at 243.
Unlike police or government officers, private individuals have no obligation to issue Miranda warnings when taking statements from suspects. State v. Kelly, 61 N.J. 283, 287 (1972). When voluntariness is in question, however, there is no distinction between a private individual and police officer. Id. at 291.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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A determination of whether a statement is voluntary requires a careful evaluation of all the factual circumstances of the interrogation. State v. Burris, 145 N.J. 509, 525 (1996). The ultimate question is "whether the defendant's will was overborne." Ibid. (citing Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S. Ct. 2408, 2415-16, 57 L. Ed. 2d 290, 303 (1978)). A court should look at all relevant factors including the suspect's age, education and intelligence, advice regarding constitutional rights, length of detention, whether the questioning was repeated or prolonged, and whether there was any physical punishment or mental exhaustion. Id. at 527. For the statement to be admissible, the court must find it was voluntary beyond a reasonable doubt. State v. Miller, 76 N.J. 392, 404-05 (1978).
The trial judge found the statement voluntary through the application of these principles. Defendant argues that the force used against him in the parking lot coerced his statement. But that force preceded the statement, and there is no evidence of physical coercion once defendant was inside the Home Depot office. As noted earlier, the door to the office was open, defendant was not restrained, the interview was for no more than one hour in the middle of the day, defendant appeared coherent, no promises were made in exchange for his statement, and defendant never asked for food, water, or a lavatory break.
We find no merit in defendant's argument.
II
Defendant argues that he was prejudiced by the judge's involvement at certain points during the trial.
The standard for reviewing a charge of judicial intervention is whether the trial judge "has turned the jury against the defendant." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999); see also Hitchman v. Nagy, 382 N.J. Super. 433, 452 (App. Div.), certif. denied, 186 N.J. 600 (2006). Although a single instance of inappropriate intervention will not necessarily warrant reversal, in reviewing the record we must determine "whether, in the aggregate, 'the actions of the trial judge deprived the defendant of a fair trial.'" Ibid. (quoting Mercer, supra, 324 N.J. Super. at 299).
Our courts have long rejected the "arbitrary and artificial methods of the pure adversary system of litigation which regards the opposing lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed." State v. Riley, 28 N.J. 188, 200 (1958), cert. denied, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1959). But judicial intervention must "be exercised . . . with the greatest restraint." Vill. of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958); see also State v. Medina, 349 N.J. Super. 108, 131 (App. Div.), certif. denied, 174 N.J. 193 (2002). To be sure, there may at times be a fine line separating impartiality from advocacy a judge must not cross. In essence, a judge's intervention must avoid the impression that the court favors one side; the judge must be impartial in the eyes of the jury. State v. Martinez, 387 N.J. Super. 129, 138 (App. Div.) (finding "[c]omments that counsel was 'beating around the bush' and should 'cut to the chase' were unfortunate" but did not deprive defendant of a fair trial), certif. denied, 188 N.J. 579 (2006).
Defendant chiefly complains of the following comments made by the judge during a sidebar toward the conclusion of Decker's direct testimony:
THE COURT: — what happened in the office?
[PROSECUTOR]: The office?
THE COURT: The loss prevention office.
[PROSECUTOR]: Well, you — you said I couldn't bring in the voluntary statement. He testified that —
THE COURT: I ruled — I ruled yesterday that you can bring in.
[PROSECUTOR]: Oh yea.
THE COURT: Voluntary statement that he made; remember?
[PROSECUTOR]: Hmm mmm. Yea.
. . . .
[DEFENSE COUNSEL]: Judge are you — are you acting as a Prosecutor because I'm confused right now.
THE COURT: Yea —
[DEFENSE COUNSEL]: I don't want to —
THE COURT: Well, I apologize. Yea, I — maybe I —
[DEFENSE COUNSEL]: You know, I —
THE COURT: Well, I — I just wanted to make sure the Prosecutor, she didn't get into what happened in the loss prevention office and — I realize it's your case. I realize
[I] shouldn't even be doing this. So I apologize.The prosecution resumed questioning and examined Decker on whether he asked defendant why he committed the theft, thereby leading to testimony regarding the events in the loss prevention office.
[PROSECUTOR]: Well, Judge . . . after cross I probably would have brought it up again anyway because you — we just made these rulings yesterday as far as what was allowed in and what wasn't. So, I do intend to ask him that Judge. . . .
. . . .
[DEFENSE COUNSEL]: . . . So I don't know if the State said no further questions or if they're going to continue —
[PROSECUTOR]: I'm going to continue.
Here, we discern from the record that the judge believed, apparently accurately, that the prosecutor did not understand the outcome of the hearing regarding the statement. Indeed, the court had expended a considerable amount of time hearing, considering and determining that the statement made to Decker was admissible. Accordingly, we find it quite understandable that the judge felt it necessary to ask the prosecutor her intentions regarding that statement. We find no abuse of discretion in the judge's inquiries in that regard.
Moreover, we note that the judge's comments were at sidebar. Accordingly, even if we were to conclude that the judge's intervention was inappropriate, and even if it could be viewed as favoring the prosecution, the judge's actions and comments at that sidebar were not conveyed to the jury and, thus, could not be interpreted as having the capacity to "turn the jury" against the defense or otherwise prejudice defendant's right to a fair trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION