Opinion
DOCKET NO. A-1176-13T1
04-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERRY MONTGOMERY, a/k/a CARL THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-06-332. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In appealing his conviction for burglary and other offenses, defendant argues he was deprived of a fair trial, claiming, among other things: the jury was not instructed on the offense of receiving stolen property; the jury was erroneously instructed on accomplice liability; the burden of proof was erroneously shifted to him; he was denied his constitutional right to confrontation; the jury was permitted to hear inadmissible bad-act evidence; and the judge imposed an excessive sentence. We disagree and affirm.
Defendant was indicted and charged, along with co-defendants Diandre Mikell and Jason Mikell, with: burglary, N.J.S.A. 2C:18-2(a)(1); theft by unlawful taking, N.J.S.A. 2C:20-3(a); and criminal mischief, N.J.S.A. 2C:17-3(a)(1). During the course of an eight-day trial, the jury heard evidence that we briefly summarize in order to provide an understanding of the issues raised in this appeal.
On April 14, 2011, at approximately 7:00 p.m., a number of detectives of the Bergen County Prosecutor's Office Special Investigations Section, utilizing several vehicles, were conducting surveillance of a 2010 maroon Nissan Altima occupied by three black males. They followed the vehicle to a residential area in Bridgewater Township and, after briefly losing sight of it a few times, police found the Altima on a nearby roadway and effectuated a traffic stop. Police approached the vehicle and instructed defendant, who was located in the front passenger seat, and his co-defendants to show their hands and get out of the car. They failed to comply and were forcibly removed from the vehicle, handcuffed, and arrested for resisting arrest. In searching defendant incident to the arrest, police found wire cutters, a flashlight, and a cell phone. Co-defendant Diandre Mikell also had a cell phone and flashlight on his person, and co-defendant Jason Mikell was in possession of, among other things, earrings, a gold chain, a ring, a Mickey Mouse watch, a baby tooth, and keys.
The legality of the stop is not questioned in this appeal.
Police also observed a black ski mask and two walkie-talkies in the passenger compartment of the Altima and a number of cardboard jewelry boxes on the rear seats. A further search of the vehicle produced a "doo rag," a New York Yankees baseball cap, three pairs of gloves, another ski mask, a fanny pack, a Blue Tooth ear-bud, a car rental agreement in Diandre Mikell's name, a GPS device, and a cell phone. In searching the vehicle's trunk, police located a locked safe and a pillow case filled with various items, including jewelry and jewelry boxes.
As defendant and the others were being arrested, police canvassed the area. Officer Clifford P. Delaney knocked on one door on Hodge Drive; no one answered but the officer noticed the screen on the front door had been cut. In searching the home's exterior, the officer found a rear sliding glass door was ajar. Upon further examination, police found the wooden frame around the front door was splintered, indicating a forced entry; boot prints were observed on the dining room carpet and in the master bedroom. Officers also observed damage to the floor and drywall around the foyer stairs. The master bedroom was "in disarray" with dresser drawers opened and items strewn on the floor. And police noticed that a pillow case had been removed from a pillow. In the basement, the alarm system had been removed from the wall, and the external electrical and telephone wires to the house had been severed.
Further investigation determined that the owners of this home were on vacation in Florida. Prior to leaving for their trip, the owners locked all doors and windows and activated their alarm system.
At trial, one of the owners identified the safe found in the trunk of the Altima and its contents, as well as the pillow case and the various items found in it, as belonging to her and her family. She estimated that the combined value of the items found in the safe and the pillow case exceeded $34,000. She also testified it cost over $17,000 to fix the damage done to their home and alarm system.
The jury found defendant guilty as charged, and the judge later sentenced defendant to an aggregate five-year prison term.
Defendant was also charged by way of complaint with possession of burglary tools, N.J.S.A. 2C:5-5(a), and resisting arrest, N.J.S.A. 2C:29-2(a). These charges were later dismissed.
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In appealing, defendant argues:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS ON THE LESSER-INCLUDED OFFENSE OF RECEIVING STOLEN PROPERTY (Not Raised Below).
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURORS ON THE LAW OF ACCOMPLICE LIABILITY (Not Raised Below).
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE COURT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE OPPOSED THE ACTIONS LEADING TO THE BURGLARY AND THE THEFT (Not Raised Below).
IV. THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED (Not Raised Below).We find insufficient merit in Points V, VI, VII and VIII to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject the first four points for the following reasons.
V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE THAT THE DEFENDANT AND/OR HIS ACCOMPLICES COMMITTED OTHER CRIMES (Not Raised Below).
A. THE OTHER CRIME EVIDENCE SHOULD HAVE BEEN EXCLUDED.
B. THE TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION.
VI. THE EVIDENCE OF POLICE SURVEILLANCE WAS UNDULY PREJUDICIAL (Not Raised Below).
VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY IMPROPER INSTRUCTION ON THE LAW OF EXPERT WITNESSES.
VIII. THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
I
Defendant first argues he was entitled to have the jury instructed on the offense of receiving stolen property, claiming it is a lesser-included offense of theft by unlawful taking, N.J.S.A. 2C:20-3(a).
N.J.S.A. 2C:1-8(e) mandates that a jury not be charged "with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See also State v. Brent, 137 N.J. 107, 114-15 (1994); State v. Crisantos, 102 N.J. 265, 276-77 (1986). In addition, a trial judge is not required to "scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty." State v. Sloane, 111 N.J. 293, 302 (1988). The record established at trial, which we briefly summarized above, does not rationally support the contention that defendant merely received stolen property. Indeed, defendant did not request such instructions, thereby demonstrating he also understood there was no rational basis for the charge.
II
Next, we address defendant's claim that the court improperly charged the jury regarding accomplice liability because the instruction did not inform jurors that defendant's guilt must be "based on the extent of his participation and his own criminal intent."
"[A] jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.' . . . [Thus,] the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of offense.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965), and State v. Weeks, 107 N.J. 396, 410 (1987)).
Here, the trial judge adequately instructed the jury regarding the law of accomplice liability, explaining that in order to establish defendant's guilt on this theory:
the State must prove beyond a reasonable doubt each of the following elements: (1) that Jason Mikell and/or Diandre Mikell committed the crimes of burglary, theft, and criminal mischief; . . . (2) that the defendant solicited Jason Mikell and/or Diandre Mikell to commit them, and/or did aid or agree or attempt to aid Jason Mikell or Diandre Mikell in planning or committing them; . . . (3) that this defendant's purpose was to promote or facilitate the commission of the offenses; [and] (4) that the defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the act.Additionally, the court properly and thoroughly charged the jury with the appropriate mens rea requirements for burglary, theft by unlawful taking, and criminal mischief. The jury was adequately informed of the elements necessary to convict defendant under a theory of accomplice liability.
III
Defendant also argues that the judge improperly shifted the burden of proof to him by way of the following instruction:
While mere presence at the scene of the perpetration of the crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding in same.
This charge is not contradictory with the judge's other unimpeachable instructions regarding the burden of proof, nor did this instruction improperly shift the burden of proof to the defendant. In fact, the instruction in question explicitly advised the jury that defendant's presence at the scene of a crime is not automatically indicative of guilt, although it can serve as evidence of defendant's participation in the crime. The fact that the judge mentioned that if the evidence is unopposed, it could suggest defendant's guilt does not improperly shift the burden. Any evidence presented by the prosecution, if unopposed, has that potential. Considering the entirety of the charge, we are unpersuaded that the instruction in question — to which defendant did not object — absolved the prosecution of its burden of proving defendant's guilt beyond a reasonable doubt.
IV
Defendant argues his constitutional confrontation rights were violated when the judge permitted police to testify that the Altima was under surveillance prior to the burglary in question. Defendant claims the jury must have inferred that the vehicle was under surveillance because "informants had implicated the vehicle['s] occupants."
It is well settled that a prosecution witness may not suggest that it possesses knowledge outside of the record from unknown sources. State v. Bankston, 63 N.J. 263, 271 (1973). The Court reasoned in Bankston that in order to show police were not acting arbitrarily or to explain subsequent conduct, the prosecution may at times elicit the reasons for apprehending a suspect or responding to the scene of a crime based "upon information received." Id. at 268. To be sure, this notion has its limitations. See State v. Rose, 206 N.J. 141 (2011); State v. Brockington, 439 N.J. Super. 311 (App. Div. 2015).
Here, however, defendant's assertion that the jury must have reasonably inferred he and his companions were implicated by informants is based entirely on speculation. And this is yet another issue that defendant did not raise in the trial court. We find the mere possibility that the jury could have drawn the implication now suggested by defendant incapable of producing an unjust result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION