Opinion
DOCKET NO. A-5486-10T2
02-04-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KADEEM D. MUSSINGTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On Appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-10-1174.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Kadeem D. Mussington was tried before a jury and found guilty of third-degree burglary, contrary to N.J.S.A. 2C:18-2a(1) (count one); third-degree conspiracy to commit burglary, contrary to N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:18-2a(1) (count three); and second-degree conspiracy with a juvenile to commit a crime, contrary to N.J.S.A. 2C:24-9 (count four). Defendant appeals from the judgment of conviction dated November 12, 2010. For the reasons that follow, we affirm.
The following facts are derived from the record of the Wade hearing and the trial. On April 10, 2008, Jodie Miller (Miller) resided at a home on Southview Road in Randolph, New Jersey with her husband and sixteen-year old daughter. On that date, Miller returned home from work at approximately 4:15 p.m. Her husband was home at the time, but left to pick up their daughter from school and take her to a 6:00 p.m. voice lesson.
United States v. Wade, 388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149 (1967).
At approximately 4:45 p.m., Miller went upstairs to her bedroom to take a nap. At 5:25 p.m., she was awakened by the doorbell ringing. According to Miller, she ignored the doorbell because she thought it was a delivery person dropping off something and tried to go back to sleep. Shortly thereafter, Miller heard the sound of wood breaking on the first floor. She got out of bed and walked towards the bedroom door.
According to Miller, as she walked towards the door, she saw a young African American male, later identified as defendant, standing at the top of the stairs approximately thirteen feet away from her. Defendant then ran down the stairs and Miller called the police from a cordless phone located on her dresser. She claims she heard someone downstairs say "there's someone in the house."
With the 911 dispatcher on the phone, she walked downstairs and observed that a video game system had been knocked off the shelf and DVD's, which had been stacked, were knocked over. She also noticed the back sliding glass door was open and the molding from the door was broken off. Additionally, the front door was unlocked, which she claims was unusual.
Miller reported to the 911 dispatcher that her house had been broken into, but the perpetrators ran off once they realized she was home. She described the person she saw as "a young black male[,]" but was unable to state what he was wearing.
At approximately 5:30 p.m., David Ryan, a neighbor of Miller's doing yard work, noticed a man standing outside a car on the street near Ryan's house. Ryan briefly spoke with the man then continued doing yard work in his backyard. Next, he noticed a second man, wearing a purple shirt, walking quickly through his neighbor's backyard.
At 5:38 p.m., Sergeant Scott Arentowicz of the Randolph Police Department received word of the break-in. He proceeded to the scene in a marked patrol vehicle. On his way, he made a right on Southview Road and began driving south towards Miller's house. Subsequently, he was advised over his radio that the suspects had left the home. Thus, he drove past the house to investigate.
Sergeant Arentowicz observed a car stopped on Country Lane with a man standing outside of it. He drove up to the car and observed that the rear passenger's side door was open. The man outside the car, later identified as co-defendant Joseph Stearns, asked Sergeant Arentowicz for help because his keys were locked inside the trunk. At that point, Sergeant Arentowicz observed an African American male, later identified as defendant, "pop his head from the rear of [the] car[,]" which startled him.
Next, Sergeant Arentowicz drew his weapon, pointed it at defendant, and told him to exit so he could see defendant's hands. Defendant reacted by ducking down in the back of the car. Sergeant Arentowicz ordered defendant out of the car and also ordered Stearns to sit on the road with his hands interlocked behind his head. Other officers then arrived at the scene. After a few minutes, defendant exited the car and put his hands on the top of the trunk.
Sergeant Arentowicz claims he drew his weapon for "[o]fficer safety."
Patrolman (now Detective) William Harzula also responded to the scene and met Miller at her home. According to Detective Harzula, she appeared "visibly shaken." Detective Harzula asked Miller if she would be able to identify the man she saw in her house, and she responded, "without a doubt[.]" Next, Detective Harzula, escorted Miller in his patrol vehicle to Country Lane to see if she could identify one of the men being held in handcuffs as the man she saw in her home.
When they arrived at Country Lane, Miller was seated in the back of Detective Harzula's patrol vehicle, which was unmarked with tinted windows. The weather outside at the time was clear and sunny. Detective Harzula informed Miller that Sergeant Arentowicz would soon bring a man outside the car and she needed to tell him "if that is the individual she saw in her house."
Sergeant Arentowicz proceeded to escort defendant, with his hands cuffed behind his back, outside Patrolman Harzula's patrol vehicle so Miller could view him. Miller identified defendant as the man she saw in her house. According to Detective Harzula, Miller was "unwavering" in her identification. The identification occurred approximately fifteen to twenty minutes after Sergeant Arentowicz received the call from dispatch about the burglary.
Subsequently, Ryan approached the officers that were still at the arrest site. He informed them of his observations.
Patrolman Robert Shearer, a Morris Township police officer, had also arrived at the scene to assist the officers. Shearer helped search Miller's home and then began driving back to Morris Township. After Ryan reported his observations to the officers still at the scene, Shearer overheard on his radio the description of the two additional suspects in the burglary. They were described only as black males. Shearer had just passed two black males walking on the sidewalk and determined they matched the description. Accordingly, he turned his patrol car around and detained the individuals for questioning. He learned that they were juveniles, L.C., who was wearing a purple shirt, and D.G.
Officer DeCarolis and Sergeant Arentowicz arrived to assist Patrolman Shearer. According to Officer DeCarolis, the male wearing the purple shirt, identified as L.C., matched "the description that was provided by Mr. Ryan." Officer DeCarolis then handcuffed L.C. and placed him in the rear of his patrol car. He also searched L.C.'s person and found a digital camera, which he secured in his patrol car.
Thereafter, Officer DeCarolis transported L.C. to Country Lane, near Ryan's house to see if Ryan could identify him. Previously, Ryan informed Sergeant Arentowicz that he could identify the person he observed running through his neighbor's backyard. Officer DeCarolis removed L.C. from his patrol car and Ryan positively identified him from approximately 120 feet away. There was still daylight at the time. Subsequently, Officer DeCarolis placed L.C. under arrest and transported him to the police station.
The police towed Stearns's car to the Randolph Township Police Department. Once there, the police unsuccessfully attempted to open the trunk using the car's inside latch in order to obtain the keys Stearns claimed were inside. They then detached the backseat and reached into the trunk to recover the keys.
At approximately 7:15 p.m., Miller's husband and daughter returned home and realized an ipod owned by Miller's daughter was missing. Miller telephoned Detective Victor to inform him about the missing ipod. Detective Victor asked her if they were also missing a digital camera. Miller and her daughter then went to the police station and were able to identify the camera, as it contained pictures of Miller's daughter's friend.
Prior to trial, defendant moved to suppress Miller's eyewitness identification. The trial judge granted a Wade hearing and heard testimony on April 5, 2010. On April 20, 2010, the judge issued an order along with a written opinion denying defendant's motion.
Defendant was tried before a jury over the course of four days in September 2010. On September 22, 2010, the jury found defendant guilty. Subsequently, defendant filed a motion for a new trial, which the trial judge denied.
At sentencing, the trial judge merged count three with count one and sentenced defendant to three years imprisonment on the merged count and a five year concurrent prison term on count four.
On appeal, defendant raises the following points for our consideration:
POINT I: THE PRE-TRIAL AND IN-COURT IDENTIFICATIONS OF DEFENDANT BY JODIE MILLER WERE IMPERMISSIBLY SUGGESTED.
POINT II: THE TRIAL COURT ERRED BY NOT CHARGING CONSPIRACY WITH A JUVENILE TO COMMIT A CRIMINAL TRESPASS AS A THIRD DEGREE LESSER-INCLUDED OFFENSE OF THE CHARGE OF SECOND DEGREE CONSPIRACY WITH A JUVENILE TO COMMIT A BURGLARY.
POINT III: CRITICAL ERRORS IN THE JURY INSTRUCTIONS DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRE REVERSAL.
A. Accomplice liability.
B. Identification instruction.POINT IV: THE TRIAL COURT ERRONEOUSLY ADMITTED A STATEMENT OF CO-DEFENDANT STEARNS UNDER THE CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE AND IMPROPERLY ADVISED THE JURY THAT THE STATEMENT COULD BE USED AGAINST DEFENDANT.
POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
I.
In Point I, defendant argues that the trial court erred in denying his Wade motion because the showup identification procedure used by the police was impermissibly suggestive. We agree that the showup procedure was impermissibly suggestive; however, we conclude that based on the totality of the circumstances, the procedure was nevertheless reliable. State v. Herrara, 187 N.J. 493, 503-04 (2006).
We apply the traditional two-part test regarding the admissibility an eyewitness identification. Under the traditional test, the court must first determine "whether the [identification] procedure in question was in fact impermissibly suggestive." State v. Madison, 109 N.J. 223, 232 (1988), abrogated in part by Henderson, supra, 208 N.J. 208. Second, if the court deems the procedure impermissibly suggestive, it must determine whether the identification was otherwise "reliable despite the impermissibly suggestive nature of the procedure[.]" Ibid.; Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). In making its determination on reliability, the court must look at the totality of the circumstances. Madison, supra, 109 N.J. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).
In State v. Henderson, 208 N.J. 208 (2011), our Supreme Court promulgated a new test for the admissibility of eyewitness identifications. However, the new test does not apply to this case because all relevant proceedings in the trial court ended in 2010, prior to the Supreme Court's decision in Henderson. Id. at 302 (stating the new test does not apply retroactively).
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Although not per se inadmissible, showup identifications are "inherently suggestive." Herrera, supra, 187 N.J. at 504. However, "[o]n or near-the-scene identifications have generally been supported upon three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." State v. Wilkerson, 60 N.J. 452, 461 (1972).
Here, the evidence in the record supports the trial judge's finding that the identification procedure was unduly suggestive. The police presented defendant for identification with his hands handcuffed behind his back, next to a police vehicle, with a uniformed officer next to him. Additionally, Miller sat in the back seat of a patrol car and had to look through a tinted window to identify defendant, who stood fifty feet away from her. Thus, the trial court appropriately determined a Wade hearing was necessary to determine whether the identification procedure was admissible.
Because the showup procedure was impermissibly suggestive, the next question is "whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. This is done by weighing the "Manson factors" "against the corruptive influence of the suggestive identification procedure." Madison, supra, 109 N.J. at 245. "The Manson factors are 'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 507 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
There was sufficient evidence produced at the Wade hearing regarding the Manson factors. Miller had the opportunity to observe defendant looking at her as he stood approximately thirteen feet away from her outside of her bedroom. Defendant was not wearing a mask nor was his face otherwise concealed. Defendant had the total focus of Miller's attention. While she did not provide a detailed description of the person in her home to the 911 dispatcher, describing the him only as a "young black male[,]" she nonetheless informed the police that she would be able to identify him. Detective Harzula testified at the Wade hearing that Miller indicated she was sure defendant was the man she saw in her home. According to Detective Harzula, the identification occurred only fifteen to twenty minutes after the burglary.
Weighing these factors against the "corruptive effects of the impermissibly suggestive procedure" supports the trial judge's ruling to admit Miller's identification of defendant. The close proximity in time between the burglary and the identification represents the most important factor that supports the judge's conclusion. See Wilkerson, supra, 60 N.J. at 461.
We also disagree with defendant's contention that the identification should have been barred under State v. Delgado, 188 N.J. 48 (2006), due to an inadequate police report. Delgado permits law enforcement to summarize an identification procedure in a report when a verbatim account is not feasible. Id. at 63- 64. Although Detective Harzula did not include a verbatim account of the identification in his report, he did provide a summary of the identification process. Given the circumstances under which Miller made her identification, it is reasonable to conclude that a verbatim report was not feasible. Accordingly, the trial judge did not err by admitting the identification.
II.
In Point II, defendant contends the trial court erred by failing to charge conspiracy with a juvenile to commit a criminal trespass as a third-degree lesser included offense to the charge of second-degree conspiracy with a juvenile to commit burglary. Because defendant did not raise this issue in the trial court, we review it under the plain error standard. R. 2:10-2; State v. Morton, 155 N.J. 383, 421 (1998). Finding no plain error, we reject defendant's argument.
An offense is deemed lesser-included if "[i]t is established by proof of the same or less than all of the facts required to establish the commission of the offense charged[.]" N.J.S.A. 2C:1-8d(1). "The judge is not required to provide the jury with an instruction on a lesser-included offense sua sponte unless 'the facts clearly indicate the appropriateness of that charge.'" State v. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting State v. Choice, 98 N.J. 295, 299 (1985)), certif. denied, 195 N.J. 522 (2008).
Defendant was indicted for third-degree burglary. A person is guilty of third-degree burglary if, inter alia, "with the purpose to commit an offense therein or thereon he . . . [e]nters a . . . structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter[.]" N.J.S.A. 2C:18-2a.
A person is guilty of fourth-degree criminal trespass if, inter alia, "knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in [a] . . . dwelling[.]" N.J.S.A. 2C:18-3a.
Pursuant to N.J.S.A. 2C:24-9a, any person who is at least eighteen years of age is guilty of conspiracy to commit an offense with a juvenile if he "knowingly . . . conspires with a person who is in fact 17 years of age or younger to commit a criminal offense[.]" The offense "shall be classified one degree higher than the underlying offense." N.J.S.A. 2C:24-9b.
Here, the trial court did, on its own, charge the jury on fourth-degree criminal trespass as a lesser included offense of the third-degree burglary charge. Although it may not have been improper to have charged third-degree conspiracy with a juvenile to commit a fourth-degree offense (criminal trespass) as a lesser included offense, it was not plain error for the judge not to do so. Because the jury convicted defendant of burglary, if there was any error in this regard, it was harmless. Once the jury decided to convict defendant of third-degree burglary, it determined he had the relevant mental state to commit burglary. Thus, it would have been unable to convict him of conspiracy with a juvenile to commit criminal trespass.
Accordingly, we find the absence of a charge on conspiracy with a juvenile to commit criminal trespass was not clearly capable of producing an unjust result.
III.
In Point III, defendant argues the jury instructions were deficient because the judge should not have instructed the jury on accomplice liability on the burglary charge and criminal trespass charge and the judge provided insufficient instructions on identification. We disagree.
A. Accomplice liability.
At trial, defendant objected to the judge charging the jury on accomplice liability. The trial judge overruled defendant's objection and provided the charge to the jury.
Accomplice liability is governed by N.J.S.A. 2C:2-6, which provides in its pertinent part:
a. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
b. A person is legally accountable for the conduct of another person when:
. . . .
(3) He is an accomplice of such other person in the commission of an offense;. . . .
c. A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning or committing it[.]
We agree with the trial judge that there was sufficient evidence from which the jury could conclude that defendant was an accomplice to the burglary. Miller testified that she saw defendant in her home. Ryan identified L.C. as the individual he saw running through his neighbor's backyard. Moreover, the police found Miller's daughter's camera on L.C.'s person. Based on these facts, the jury could have concluded that L.C. was the principal and defendant was the accomplice.
B. Identification instruction.
Defendant did not object to the identification charge at trial. Thus, we cannot reverse on this ground unless we determine the identification instruction was so deficient that it was clearly capable of producing an unjust result. R. 2:10-2. However, we consider that "[w]hen identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green, 86 N.J. 281, 291 (1981)).
In this matter, the judge's instruction was exhaustive on the issue of identification:
It is your function to determine whether the witnesses' identifications of the defendant and [L.C.] are reliable and believable, or whether they are based on mistake, or for any reason not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which . . . you can conclude that the defendant is the person who committed the offense charged. You should consider the observations and perceptions on which the identification was based, and the circumstances under which the identification was made.
. . . .
In addition, you may also consider other factors, which include: The witness's opportunity to view the person who committed the offense charged at the time of the offense; the witness's degree of attention
to the perpetrator at the time of the offense; the accuracy of any description the witness gave prior to identifying the perpetrator; the degree of certainty expressed by the witness in making any identification; the length of time between the witness's observation in the offense and the first identification; discrepancies or inconsistencies between identifications, if any; the circumstances under which any out-of-court identification was made, and whether or not it was the product of a suggestive procedure, including everything done or said by law enforcement to the witness before, during, or after the identification process.
The judge also specifically discussed the showup procedure in his instruction:
In making this determination you may consider the following circumstances: Whether anything was said to the witness prior to the show-up; whether . . . in both of these identifications there was testimony that either the witness[es] was brought to where they alleged the defendant to be, or the defendant, [L.C.], was brought to where the witness, Mr. Ryan . . . was. That's called a show-up.
Additionally, the instruction touched on the issue of race: "You should consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race."
Defendant suggests the judge should have conveyed to the jury that the identification was the result of a suggestive procedure. We find no law or precedent that would have mandated such an instruction. Defendant had a full and fair opportunity to address the identification throughout trial. The judge's instruction appropriately left the jury with the discretion to determine how much weight, if any, to give to the Miller's identification of defendant. Accordingly, we find no error with the identification instruction.
IV.
In Point IV, defendant argues Sergeant Arentowicz's testimony regarding his conversation with Stearns about the keys being locked in the trunk of the car was hearsay and should not have been admitted. At trial, the judge admitted the testimony under the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5), despite defendant's subsequent objection.
Hearsay is a statement "other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). The co-conspirator exception to the hearsay rule applies to statements made "at the time the party and the declarant were participating in a plan to commit a crime" and "made in furtherance of that plan[.]" N.J.R.E. 803(b)(5). A statement that falls within the exception is admissible against any member of the conspiracy. Ibid.
Our Supreme Court articulated the three conditions that must be met to admit a statement under the exception:
First, the statement must have been made in furtherance of the conspiracy. Second, the statement must have been made during the course of the conspiracy. Lastly, . . . there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it.
[State v. Phelps, 96 N.J. 500, 509-10 (1984) (internal citations omitted).]
The three conditions were met in this case. As to the first requirement, it is well established that an attempt to flee the scene of a crime is considered furthering a conspiracy, as a "conspiracy continues until the object of the conspiracy is fulfilled[.]" State v. Cherry, 289 N.J. Super. 503, 523 (App. Div. 1995). It would not have been unreasonable for the judge to conclude that Stearns's statement represented an attempt to enlist the help of Sergeant Arentowicz to retrieve the keys from the trunk of the car so Stearns and defendant could flee the scene. Accordingly, the statement meets the second requirement as well, because it was made during the course of the conspiracy. Finally, there is independent proof of the conspiracy. This proof includes Miller identifying defendant as the person she saw inside her home, Sergeant Arentowicz finding defendant and Stearns near Miller's home, Ryan identifying L.C. as the person he saw traveling through his neighbor's backyard, and the police finding L.C. with Miller's daughter's camera on his person.
Based on the foregoing, we find the trial judge appropriately admitted the statement under the co-conspirator exception. Further, a review of the trial record does not reveal the statement had any palpable impact on the outcome of the trial. Thus, even if it was error for the judge to admit the statement, it was harmless. State v. Modell, 260 N.J. Super. 227, 247 (App. Div. 1992) ("Hearsay error, depending on the circumstances, may be harmless error or it may require reversal."), certif. denied, 133 N.J. 432 (1993).
V.
In his final point, defendant argues that his sentence of five years imprisonment is manifestly excessive for two reasons. First, he claims the judge erred in applying the aggravating factors. Second, he claims the judge should have reduced the charge. We disagree on both grounds.
We first note that when reviewing defendant's sentence we may not substitute our own judgment for that which is left in the sound discretion of the trial judge. State v. Kirk, 145 N.J. 159, 175 (1996). With that in mind, we are satisfied defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Defendant's seven arrests since turning eighteen support the judge's application of aggravating factor three, N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense"). Moreover, the judge did note that due to defendant making changes in his life, he did not "give great weight to [that factor.]" The nature of the offense, burglary, supports the judge's application of aggravating factor nine, N.J.S.A. 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law").
The trial judge reasonably did not apply mitigating factors one, N.J.S.A. 2C:44-1b(1) ("[t]he defendant's conduct neither caused nor threatened serious harm"), or two, N.J.S.A. 2C:44-1b(2) ("[t]he defendant did not contemplate that his conduct would cause or threaten serious harm"), as Miller "had no idea whether her person was periled when individuals entered her home."
Finally, the record supports the judge's decision not to sentence defendant to a term for a crime one degree lower on the conviction for second-degree conspiracy with a juvenile to commit a burglary.
N.J.S.A. 2C:44-1f(2) provides in its pertinent part:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
Because the trial judge did not err by determining that the mitigating factors did not outweigh the aggravating factors, he appropriately declined to downgrade the degree of defendant's crime for the purpose of sentencing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION