Opinion
DOCKET NO. A-4938-12T1
02-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VAUGHN SIMMONS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 10-06-1539 and 10-06-1540. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Vaughn Simmons was tried before a jury and found guilty of first-degree robbery and other offenses charged under Indictment No. 10-06-1539, and second-degree unlawful possession of a weapon by a person previously convicted of a felony, charged under Indictment No. 10-06-1540. Defendant appeals from the judgments of conviction entered by the Law Division on February 3, 2012. For the reasons that follow, we affirm defendant's convictions and the sentences imposed, but reverse and remand for reconsideration of the determination that the sentence imposed on Indictment No. 10-06-1540 be served consecutively to the other sentences.
I.
Defendant was charged under Indictment No. 10-06-1539 with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and five); two counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (counts two and six); two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (counts three and seven); and two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (counts four and eight). Counts one through four arose out of a robbery of a Family Dollar store in Newark, which took place on December 3, 2009. Counts five through eight pertained to a robbery of an AutoZone store, which occurred on December 5, 2009.
Defendant also was charged under Indictment No. 10-6-1540 with two counts of second-degree unlawful possession of a firearm by a person convicted of certain crimes, N.J.S.A. 2C:39-7b. Count one pertained to the December 3, 2009 robbery of the Family Dollar store, and count two pertained to December 5, 2009 robbery of the AutoZone store.
The State agreed to sever the charges related to the robbery of the AutoZone store. Defendant was tried on the Family Dollar store charges, first on the charges in Indictment No. 10-06-1539, and thereafter on the charge in Indictment No. 10-06-1540.
At the first trial, the State presented evidence which established that on December 3, 2009, an African-American male entered the Family Dollar store in Newark. He stood near the entrance, complained that the lines were too long, and left the store soon after. Later that day, at around 5:30 p.m., F.M., the store's manager, observed that the individual who entered the store earlier had returned and was attempting to take one of the cash registers.
We refer to certain individuals by their initials in order to protect their identities.
R.H., the store's security guard, attempted to stop the man from carrying away the register. R.H. and the perpetrator fell to the floor. F.M. pressed the store's "panic button" alarm. When he turned around, F.M. observed that the perpetrator had gotten up from the ground and was pointing a handgun at him. F.M. turned again, and the man fled the store with the register. He had taken $125.
F.M. immediately called 9-1-1 and provided a description of the robber. He described the perpetrator as an African-American male, between 5 feet and 7 or 8 inches, who weighed approximately 140 to 150 pounds. At trial, F.M. also said the perpetrator had braided hair and had been wearing a black Yankees hat.
On the same day as the robbery, F.M. went to the police station and provided a statement. The following day, he gave the police a "burned" DVD copy of footage from the store's security camera. F.M. testified that the DVD footage burned as "still" frames. He explained that the dates on the video frames were incorrect because the camera had not been updated.
On December 16, 2009, an officer showed F.M. an array of photos for purposes of identifying the perpetrator of the robbery. The officer instructed F.M. that he need not pick a photograph, as the perpetrator may not be in the photo array. F.M. positively identified defendant as the man who robbed the store, and signed the back of the photograph with the date. At trial, F.M. identified defendant as the person who committed the robbery on December 3, 2009, and pointed the handgun at him.
On the day of the robbery, R.H. also provided the police with a description of the perpetrator. She described the robber as an African-American male, who was approximately 5 feet, 9 inches tall, and weighed about 150 pounds. R.H. said he had braided hair, and was wearing a short sleeved-shirt, a vest, and a Yankees cap. R.H. also was shown a photo array, but she was unable to identify the perpetrator. However, on December 26, 2009, R.H. identified defendant from a different photo array, which was shown to her by another officer. At trial, R.H. identified defendant as the man who robbed the store.
A.J. had been working as a cashier at the register that was stolen from the store. A.J. initially told the police the robber was about 5 feet, 9 inches tall, and weighed 150 pounds. In a later conversation with the police, A.J. said the robber was about 5 feet, 7 inches tall and weighed around 165 pounds.
T.R., who was in the store at the time of the robbery, also provided the police a description of the robber on December 3, 2009. She described the perpetrator as an African-American male, age 25 to 30, about 5 feet, 9 inches tall, and weighing 180 pounds. T.R. said the perpetrator had been wearing a Yankees cap and grey sweater. T.R. was unable to identify the perpetrator from a photo array which included defendant's photograph.
Defendant testified that he was not present at the store on the night in question. Defendant stated that he picked up his ill wife at 5:00 p.m., but admitted on cross-examination that he had called his wife later that day. Defendant also testified that he did not match the man in the surveillance video because, prior to the robbery, he had four facial surgeries to treat an infection on the right side of his body. According to defendant, the surgeries left his face "droopy" and "uncontrollable."
Defendant stated that the man in the surveillance footage did not exhibit these features. He said the man shown in the footage weighed substantially more than he did while he was recovering from the surgeries. Defendant stated that he weighed 130 pounds on the date of the robbery. During cross-examination, defendant stated that he had no medical records to support his claimed medical conditions. Furthermore, defendant admitted that he had five prior felony convictions.
The jury found defendant guilty on counts one through four of Indictment No. 10-06-1539. Thereafter, following a separate trial on the charge in Indictment No. 10-06-1540, the jury found defendant guilty of possession of a weapon by a person previously convicted of a felony. Defendant was sentenced on February 3, 2012. After the court entered judgments of conviction, defendant appealed.
II.
On appeal, defendant raises the following arguments:
POINT I
THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT BY IMPERMISSIBLY SHIFTING THE BURDEN OF PROOF TO THE DEFENSE. (Not Raised Below).
POINT II
THE INTRODUCTION AND REPEATED REFERENCE TO THE UNSANITIZED DETAILS OF [DEFENDANT'S] PRIOR CONVICTION TO PROVE THE CERTAIN PERSON[S] OFFENSE DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
POINT III
THE SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. The Sentences Imposed Were Not Offense-Oriented, as Required by State v. Roth [95 N.J. 334 (1984)] and State v. Hodge [95 N.J. 369 (1984)].
B. The Sentencing Court Erred in Imposing a Consecutive Sentence on the Certain Person[s] Offense.
Defendant also has filed a supplemental pro se brief in which he argues:
[POINT] I
THE TRIAL COURT ERRED AT THE CLOSE OF TRIAL [BY] ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE AN ADDITIONAL CD FOR THE JURY'S DELIBERATIONS THAT THE DEFENSE DID NOT GET A
CHANCE TO EXAMINE IN VIOLATION OF DEFENDANT[']S RIGHT TO A FAIR TRIAL.
[POINT] II
THE PROSECUTOR COMMITTED MISCONDUCT BY MAKING IMPROPER PREJUDICIAL AND UNTRUTHFUL STATEMENTS AND REFERRING TO EVIDENCE THAT CIRCUMVENTED THE TRIAL JUDGE[']S ORDER SEVERING COUNTS OF THE INDICTMENT.
[A.] [The] Prosecutor Attacked Credibility with Untruthfulness.
[B.] [The] Prosecutor Read a Statement From a Non-Testifying Witness.
[C.] The One Question [t]he Jury Asked.
[POINT] III
THE PROSECUTOR COMMITTED MISCONDUCT BY SUPPRESSING EVIDENCE FAVORABLE TO THE DEFENSE AND PRESENTING THE JURY WITH UNTRUTHFUL EVIDENCE IN VIOLATION OF DEFENDANT[']S RIGHT TO DUE PROCESS.
[A.] [The] Prosecutor Resorted to [I]mproper Courtroom Antics.
[POINT] IV
THE TRIAL COURT ERRED [BY] DENYING DEFENDANT[']S MOTION FOR AN EVIDENTIARY HEARING TO EXCLUDE AN ALTERED AND PREJUDICIAL CD IN VIOLATION OF [DEFENDANT'S] RIGHT TO DUE PROCESS AND FUNDAMENTAL FAIRNESS.
A. Were [t]he Surveillance Stills Altered or Fabricated[?]
B. The Trial Court Erred [i]n Omitting [t]he Incident Report [f]rom [t]he Jury's Deliberations.
C. Did This Evidence Find [Its] Way [i]nto [t]he Courtroom [a]nd Deprive Defendant of [a] Fair Trial[?]
[POINT] VIn addition, defendant asserted a claim of ineffective assistance of counsel, for the purpose of preserving the same for post-conviction relief (PCR):
THE TRIAL COURT, TRIAL COUNSEL AND PROSECUTOR VIOLATED DEFENDANT[']S STATE CONSTITUTIONAL RIGHT [UNDER] ARTICLE I, PARAGRAPH [1] IN NOT HOLDING A WADE[] HEARING AS REQUESTED.
[A.] [The] Jury Should [h]ave Been Given [a] Tailored Charge.
TRIAL COUNSEL[']S FAILURE TO PRESENT DEFENDANT[']S ALIBI WITNESS, REQUEST AN EVIDENTIARY HEARING, INVESTIGATE EXCULPATORY EVIDENCE, [AND] OBJECT TO IMPROPER COURT ROOM GESTURES DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE REPRESENTATION.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). --------
III.
Defendant argues that the prosecutor improperly shifted the burden of proof to the defense. This argument was not raised at trial. We therefore consider whether the prosecutor shifted the burden of proof to the defense and, if so, whether this was a trial error that was "clearly capable of producing an unjust result." R. 2:10-2.
Defendant's argument is based on the following. As noted, defendant testified that he was not the person shown in the store's surveillance video footage because sometime before the robbery was committed, he had four surgeries which made his face appear "droopy" and "uncontrollable." On cross-examination, the prosecutor asked defendant whether he had procured any medical records corroborating his testimony about the surgeries. Defendant replied that he had "quite a few medical records." He said he had provided his attorney with a subpoena and asked that he obtain those records for trial.
Thereafter, in his summation, defendant's attorney noted that defendant claimed his innocence. Counsel pointed out that defendant testified about his surgeries, and indicated that his face had been distorted because of those procedures. In his closing argument, the prosecutor stated, "There's no medical records claiming he's not there." The prosecutor also stated that 700 days had passed since the robbery, but "we don't have these medical records to talk about."
Under both the New Jersey Constitution and the United States Constitution, "due process requires the State to prove each element of a charged crime beyond a reasonable doubt." State v. Hill, 199 N.J. 545, 558-59 (2009) (citations omitted). Defendants in criminal prosecutions have no obligation to prove their innocence. State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005) (citing State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003), certif. denied, 186 N.J. 244 (2006).
Here, the prosecutor did not state that defendant had the burden to prove the elements of the offenses with which he was charged. Rather, the prosecutor challenged defendant's credibility by asking defendant whether he had obtained any documents to substantiate his assertion that he had undergone four surgeries. "It is not improper for the prosecution to suggest that the defense's presentation was imbalanced and incomplete." State v. Timmendequas, 161 N.J. 515, 593 (1999).
The prosecutor's remarks in summation also were not improper. A prosecutor's improper comments will be deemed reversible error only "where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted); State v. Ramseur, 106 N.J. 123, 322 (1987). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Timmendequas, supra, 161 N.J. at 576 (citation omitted).
In his summation, the prosecutor was responding to the statements of defense counsel, who noted defendant's testimony about his surgeries. The prosecutor prefaced his response to those statements by noting that the State had the burden of proof in this case. The prosecutor stated that there were no medical records which corroborated defendant's testimony about his surgeries.
The prosecutor did not, however, state that the defense had an obligation to produce any evidence, and he did not assert that the defense had the burden of proof. Moreover, defendant's attorney did not object to the prosecutor's statements. A "reviewing court may [therefore] infer that counsel did not consider the remarks to be inappropriate." State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993).
Furthermore, any possibility that the statements may have caused the jurors to think the burden of proof rested on defendant was cured by the court's instructions. Several times, the judge instructed the jury that the State had the burden of proving beyond a reasonable doubt all elements of the offenses. The judge also instructed the jury that the burden of proof never shifted from the State to defendant.
Indeed, in his final instructions, the judge stated that defendant:
has neither the burden nor the duty to show that the crime . . . was committed by someone else or to prove the identity of that other person. You must determine therefore not only whether the State has [proved] each and every element of the
offense charged beyond a reasonable doubt, but also whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it.
In support of his contention that the prosecutor improperly shifted the burden of proof to him, defendant relies upon State v. Cooke, 345 N.J. Super. 480 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002). In that case, the defendant was convicted of sexual assault. Id. at 483. At trial, the defendant claimed the victim had consented, but he did not testify or present any witnesses. Id. at 485.
In summation, the prosecutor asserted that the jury had heard "zero evidence in this case about consent. The only evidence you heard over there was the victim say there was no consent." Ibid. The defendant objected and sought a mistrial. Ibid. The trial judge denied the motion and instructed the jury to disregard the statement. Id. at 485-86. The judge reiterated that instruction in his final charge. Id. at 486.
We held that the prosecutor's remarks were improper because "a prosecutor should not in either obvious or subtle fashion draw attention to a defendant's decision not to testify." Ibid. (citing State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991)). We nevertheless concluded that the prosecutor's remarks "were not so egregious that a prompt and proper instruction would not ameliorate their prejudicial effect." Ibid. (citations omitted).
Defendant's reliance upon Cooke is misplaced. Here, defendant testified and the prosecutor challenged the credibility of that testimony on cross-examination. Moreover, defense counsel did not object to the questions or the prosecutor's remarks in summation. Even if the prosecutor's questions and remarks were improper, the judge's repeated instruction that the State had the burden of proof in the case served to ameliorate any prejudicial effect of the questions and remarks.
In support of his argument, defendant also relies upon Jones, supra, 364 N.J. Super. at 376. In that case, the defendant was charged with aggravated assault and certain weapons offenses arising from a home invasion burglary which was allegedly committed while the defendant posed as an armed security guard. Id. at 378-79. The defendant denied that he was involved in the incident and testified at trial. Id. at 380. Defense counsel questioned numerous police witnesses as to whether they had attempted to obtain fingerprints from a gun found in the victim's apartment. Id. at 381-82. One police witness testified that it was difficult to obtain any usable prints from the surface of a handgun. Id. at 382.
In his summation, defense counsel emphasized the absence of fingerprint evidence from the State's case. Ibid. In response, the prosecutor noted that the defendant did not have any burden of proof, but stated that the jurors should ask themselves why the defense did not dust the gun for prints "to disprove that [the defendant's] fingerprints were on [the weapon]?" Ibid. The prosecutor said, "Maybe the defendant knows something we don't, that it is his gun." Ibid.
We held that, in his summation, the prosecutor had impermissibly shifted the burden of proof to the defendant. Id. at 381. We noted that defense counsel had objected to the remarks, the trial judge had overruled the objection, and the judge had refused to give a curative instruction. Id. at 382. We emphasized that the defendant had no obligation to perform fingerprint tests on the weapon in order to prove that it was not his. Id. at 383.
Here, however, the prosecutor attacked defendant's credibility by noting that there were no medical records to corroborate his testimony about the surgeries. Defense counsel did not object to the questions or the prosecutor's remarks in summation. The prosecutor emphasized that the State had the burden of proof. More importantly, the trial judge instructed the jury that the State had to prove all elements of the case beyond a reasonable doubt, and the burden of proof never shifts to defendant.
We therefore conclude that the prosecutor's questioning of defendant about the absence of medical records and the prosecutor's remarks in summation were not improper. Even if they were, the prosecutor's questions and remarks did not deny defendant his right to a fair trial because the trial judge clearly instructed the jury that the State always has the burden of proof and it never shifts to defendant.
IV.
We next consider defendant's contention that the introduction and repeated reference to his prior second-degree robbery conviction denied him his right to a fair trial on the certain persons offense. This issue also was not raised at trial. We therefore consider whether the references to the prior robbery conviction were erroneous and, if so, whether these errors were "clearly capable of producing an unjust result." R. 2:10-2.
We note initially that, in the first trial, the parties had agreed and the judge ruled that defendant's prior criminal record would be sanitized. Defendant nevertheless testified about his prior criminal record, and stated that he had a prior robbery conviction.
In the second trial, the State asked the judge to take judicial notice of defendant's prior conviction of robbery. The judge agreed. The prosecutor also indicated he was going to mention that conviction in his opening statement. Defendant's attorney did not object. In his opening, the prosecutor stated that because defendant had a prior felony conviction for robbery, he should be found guilty of the certain persons offense.
At the conclusion of the second trial, the judge instructed the jury. The judge noted, among other things, that defendant had previously been convicted of second-degree robbery. The judge emphasized that the jury must disregard its prior verdict in the first trial, and consider anew the evidence previously presented on possession of a weapon. Defense counsel did not object to the charge. As noted, defendant was found guilty.
In support of his argument that the instruction and references to the prior robbery conviction were erroneous, defendant relies upon State v. Brown, 180 N.J. 572 (2004). In that case, the Court discussed the manner in which a qualifying predicate offense should be handled when a defendant is tried for unlawful possession of a weapon by a person who has been previously convicted of a felony. Id. at 585.
The Court stated that, "[I]f defendant stipulates to the offense, the jury need be instructed only that defendant was convicted of a predicate offense. If the defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment." Ibid. The Court also stated that "a defendant's offer to stipulate does not preclude using evidence of the name and nature of a prior conviction if there is any other purpose for its admission." Ibid. (citation omitted).
In this case, defendant testified in the first trial that he was previously convicted of robbery, even though the parties had agreed and the court ruled that his prior convictions would be sanitized. Thus, if the jury heard testimony that defendant had been previously convicted of a robbery, it was because defendant provided that testimony.
Thus, the admission of evidence in the second trial that defendant had been previously convicted of robbery, and the court's discussion of that conviction in its charge on the certain persons offense, were not erroneous, let alone an error "clearly capable of producing an unjust result." R. 2:10-2.
V.
Defendant further argues that his sentences are excessive. He also contends that the judge erred by imposing a consecutive sentence for the conviction on the certain persons weapons charge.
Here, the judge found aggravating factors three, the risk that defendant will commit another offense of which he has been convicted; six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(3), (6), (9). The judge found no mitigating factors.
We note that the record shows that defendant had seven juvenile adjudications, twenty arrests as an adult, six other indictable convictions, two disorderly persons offenses, and a violation of probation. The judge found that defendant qualified for a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3a, but decided not to impose such a sentence.
On Indictment No. 10-06-1539, the judge merged counts two and four with count one (first-degree robbery), and sentenced defendant to twenty years of imprisonment, with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year custodial term on count three (second-degree unlawful possession of a handgun). The judge noted that, upon his release from incarceration, defendant would be subject to five years of parole supervision.
On the second-degree certain persons offense charged in Indictment No. 10-06-1540, the judge sentenced defendant to a ten-year custodial term, with five years of parole ineligibility. The judge ordered that this sentence be served consecutive to the sentences imposed under Indictment No. 10-06-1539. The other charges under both indictments were dismissed.
Defendant argues that the sentence on the robbery was not "offense-oriented." He contends there was "nothing particularly egregious" about the robbery, as compared with other armed robberies. He argues that, in view of the "unexceptional" nature of the robbery, the twenty-year term, with the 85% period of parole ineligibility, and the other sentences imposed, are manifestly excessive and unduly punitive.
We employ a deferential standard when reviewing a trial court's sentencing decision. State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence unless (1) the judge failed to follow the sentencing guidelines; (2) the judge's findings of aggravating and mitigating factors were not based on competent and credible evidence in the record; or (3) "'the [judge's] application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
We are convinced that the trial judge adhered to the sentencing guidelines, and the record supports the findings of aggravating factors. The sentences imposed are well within the court's sentencing discretion. We find no merit to defendant's contention that the facts pertaining to the armed robbery do not justify a custodial term of twenty years, particularly in view of the aggravating factors found by the court, and the absence of any mitigating factors.
Defendant also argues that the judge erred by imposing a consecutive sentence on the certain persons offense. He contends that the judge failed to set forth his reasons for imposing a consecutive sentence, as required by 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). We are convinced that a remand is necessary because the trial court failed to explain the reasons for imposing a consecutive sentence.
Accordingly, we affirm defendant's convictions and the sentences imposed, but reverse the trial court's determination that the ten-year sentence imposed on Indictment No. 10-06-1540 must be served consecutively to the sentences imposed on Indictment No. 10-06-1539. We therefore remand the matter to the trial court to reconsider that determination. If the court decides that the sentences should be served consecutively, the court should set forth its reasons for that decision, as required by Yarbough.
We have also considered the arguments raised by defendant in his pro se supplemental brief. We conclude that those arguments are without merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for reconsideration of the determination that the sentence imposed on Indictment No. 10-06-1540 be served consecutively to the other sentences. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION