Opinion
DOCKET NO. A-4349-12T4
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEQUAN WALLACE, a/k/a DAQUAN C. WALLACE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-08-1268. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried to a jury, defendant Dequan Wallace was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2. Defendant was sentenced to a term of eleven years and six months on the armed robbery conviction with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent six-year term on the conspiracy conviction and the appropriate penalties and assessments.
I.
On May 10, 2011, Victor and Ashford were working at the Circle Exxon gas station in New Brunswick. Victor was inside the convenience store portion of the station, while Ashford was attending the gas pumps. At approximately 9:30 p.m., a man wearing a long-sleeved red shirt, a black knit cap, and a bandanna over his face entered the store. The man walked straight behind the register, shook his fist at Victor, and told him to, "[G]ive me the money." Victor fumbled with the key for a moment before opening the register, but did not resist.
We employ pseudonyms to refer to the employees as we did in our decision affirming the co-defendant's conviction. State v. Cox, No. A-2999-12 (App. Div. Feb. 25, 2015).
While Victor opened the register, a second man clad in a dark hooded sweatshirt, jacket, and bright green belt entered the store and stood near the entrance. Throughout the encounter, the second man concealed his right hand behind the open left flap of his jacket around chest height, as if he held a gun.
Victor began pulling cash out of the register to hand to the first man, who stood by impatiently for a moment before pushing Victor aside to grab at the money himself. The first man, later identified as defendant, then took the till out of the register and placed it on the counter to allow the second man, later identified as co-defendant Clyde Cox, to take money at the same time. Notably, Cox did not remove his right hand from behind his jacket while taking money, but remained hunched and protective of the concealed hand.
After emptying the till, defendant reached over Victor's head to take three cartons of Newport 100 cigarettes. The men began to leave, but defendant turned back and told Victor to empty his pockets. Victor complied, and the men then left the store. On the surveillance video that captured the entire incident, Victor is visibly panicked throughout, holding his hands up while backed into a corner behind the register.
After the men left, Ashford entered the store to tell Victor that he had also been robbed. New Brunswick police were called, and Detective Kenneth Abode responded to interview Victor and Ashford about the incident.
Officer Adam Ramirez was on patrol that evening when he received a radio broadcast about a robbery in progress at the Circle Exxon, including a description of the suspects. Ramirez responded to the Exxon, but on the way he noticed a minivan with its headlights out. Seeing that one passenger matched the description of one of the suspects, Ramirez stopped the van about 1000 feet from the Circle Exxon. Other officers, including Ryan DeGraw, had responded to the gas station by the time Ramirez stopped the van and were able to assist with the motor vehicle stop.
Defendant was inside the van, wearing a long-sleeved red shirt. Co-defendant Cox was wearing a dark hooded sweatshirt and bright green belt. Police also found cash, three cartons of Newport 100 cigarettes, two bandannas, and a black knit cap inside the van. Officer Ramirez noted that defendant was "sweating profusely."
Officer DeGraw and Detective Abode both mentioned "a language barrier" in getting information from Victor and Ashford. Abode attempted to conduct a "show-up" by taking Victor to the van to identify the suspects approximately fifteen minutes after the robbery. According to Abode, Victor was nervous and scared, and the language barrier prevented him from communicating to Victor that he was attempting to conduct a show-up identification. Victor did not identify anyone at the show-up. Nonetheless, Abode was able to learn of Exxon's surveillance video and viewed it there at the gas station. It showed the robbery inside the convenience store, and assisted police in identifying the suspects as defendant and co-defendant Cox, because the clothing they are seen wearing in the video was the same clothing in which the men were apprehended. All three officers made in-court identifications of defendant and Cox at trial.
Victor testified that he was "scared," "confused," and "very nervous" when defendant demanded money, because he thought that defendant would "beat" him if he refused. On direct examination, he repeatedly testified that he "felt [Cox] had a gun" in light of his hand position and behavior. On cross-examination, he admitted that he did not know what Cox was in fact holding in his right hand, and did not observe a gun.
During Victor's direct examination, he testified that Ashford came inside the store after the robbery and told him "they took the money." Upon defense counsel's objection to this hearsay statement, the prosecutor acknowledged that, although Ashford remained on the State's witness list, Ashford had left the country for India and would not be testifying. When questioned by the court, the prosecutor admitted that he had learned about Ashford's absence during jury selection the prior week.
Defendant then moved for a mistrial on the grounds that the prosecutor stated in his opening that Ashford was robbed at knifepoint even though he knew that Ashford would not be testifying, and no statements of Ashford's were provided in the discovery given to defendant. As a result, counsel did not prepare to defend against them. Defendant argued that he would have filed a motion to dismiss the indictment had he known Ashford was not testifying because there was no other evidence of a weapon or the impression of a weapon by the victims in the record.
The trial court denied defendant's motion for a mistrial, noting that Victor had just testified to his perception of a gun, and could readily be cross-examined on that issue. However, the court barred the State from introducing any of Ashford's statements to Victor, and immediately instructed the jury that it could not consider Ashford's statements "for any purpose" in his absence. Defendant did not object to the instruction.
After the State rested, defendant moved for judgment of acquittal. The court denied the motions as to counts one and three, but granted the motion as to count two, armed robbery against Ashford, because no proof of that robbery was admitted. Specifically, the only proffered evidence was the alleged excited utterance by Ashford to Victor that he had just been robbed, which the court had ruled inadmissible.
The court instructed the jury that the prosecutor's opening statement and subsequent questions regarding the robbing of Ashford and his statements to Victor were not to be considered during deliberations. The court reminded the jury that the attorneys' opening statements are not evidence in any event. Again, defendant did not object to the court's instruction.
The jury found defendant and co-defendant Cox guilty of conspiracy to commit robbery and first-degree armed robbery against Victor. Defendant's post-verdict motion for judgment of acquittal notwithstanding the verdict or, alternatively, for a new trial was denied.
On appeal, defendant provides three points for our consideration:
POINT I
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR MISTRIAL BECAUSE THE COMPLAINED ABOUT MISREPRESENTATION IN THE PROSECUTOR'S OPENING STATEMENT, AND MISREPRESENTATION IN THE PROSECUTOR'S DUTY OF CONTINUING DISCOVERY, PREJUDICED DEFENDANT'S ABILITY TO PRESENT A COMPLETE DEFENSE AND TO ESTABLISH REASONABLE DOUBT ON THE CHARGE OF FIRST DEGREE ROBBERY.
POINT II
DEFENDANT'S POST-VERDICT MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OR ALTERNATIVELY FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT III
THE 11 1/2 YEAR BASE TERM IMPOSED ON DEFENDANT'S CONVICTION FOR ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
II.
A.
On appeal, defendant first contends that the trial court erred in denying his motion for a mistrial because his right to a fair trial was prejudiced by the prosecutor's opening statement, questioning, and failure to provide discovery regarding Ashford's unavailability. We are satisfied that defendant was not deprived of a fair trial.
The decision to grant a mistrial lies within the sound discretion of the trial court, and is reviewed for an abuse of that discretion. State v. Winter, 96 N.J. 640, 646-47 (1984). In particular, the decision on whether inadmissible evidence may be "cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial," is "peculiarly" within the competence of the trial judge, who has the "feel" of the case. Ibid.
Prosecutorial misconduct is not a ground for reversal unless it was so egregious as to deprive the defendant of a fair trial. State v. Jackson, 211 N.J. 394, 409 (2012). The effectiveness of a curative instruction following such misconduct is also reviewed for an abuse of discretion. Winter, supra, 96 N.J. at 647. An instruction will "ordinarily suffice" if the trial judge instructs the jury "in definite and unexceptionable terms" to ignore the misconduct. State v. Vaszorich, 13 N.J. 99, 115, cert. denied, 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953). An instruction is insufficient, however, if there is a reasonable doubt that the offending conduct led the jury to a verdict it otherwise might not have reached. State v. Macon, 57 N.J. 325, 335-36 (1971). In other words, to warrant a mistrial, the prosecutor's conduct must have produced an unjust verdict. Winter, supra, 96 N.J. at 648.
Defendant first challenges the following statements in the prosecutor's opening remarks regarding Ashford:
[W]hile defendant Wallace and Cox are robbing [Victor] inside, outside a juvenile walked up to the gas pump attendant. You can see the bumper right here. You'll see a video of him walking in. That person pulls a knife on [Ashford] and steals whatever cash he has there. And all three of them run. They run away from the gas station.
Defendant also challenges an out-of-court statement by Ashford that Victor testified to during his direct examination, and the subsequent manner in which the court and parties learned of Ashford's unavailability:
[PROSECUTOR]: Did [Ashford] say anything to you when he first came in [the store]?
[DEFENSE COUNSEL]: Hearsay.
COURT: Sustained. . . . don't tell us what the person outside said to you when he came inside. Just tell us whether he said something to you or not.
. . . .
[VICTOR]: He did.
[PROSECUTOR]: When Ashford said it to you did he sound calm and relaxed or excited?
. . . .
[VICTOR]: It seemed as if something had happened outside.
[PROSECUTOR]: What about Ashford made you think something had happened outside?
[VICTOR]: He could not talk much because he had a heart attack earlier and so he just told me they took the money.
Defense counsel objected to Ashford's statement coming in through Victor as hearsay, and because that statement was not provided in discovery. The State argued that the statement was admissible under N.J.R.E. 803(c)(2), as an excited utterance made under the stress of having just been robbed. As to the discovery violation, the prosecutor "believed" the statement had been provided, but did not dispute defense counsel's representation that it was not provided.
While discussing the hearsay issue outside the presence of the jury, the prosecutor acknowledged for the first time that Ashford would not be testifying:
[DEFENSE COUNSEL]: Judge, what I just want to clarify, is [Ashford] going to testify?
COURT: Is who?
[PROSECUTOR]: No.
[DEFENSE COUNSEL]: Then, Judge, he can't say anything about that knife or anything. He's gone far enough.
COURT: Why isn't he going to testify?
[PROSECUTOR]: He's left the country.
[DEFENSE COUNSEL]: Judge, we're just hearing about this now, too. He's on the witness list.
. . . .
COURT: When did you learn he left?
[PROSECUTOR]: Last week when I went there.
At this point, defendant moved for a mistrial, arguing that, taken together, the prosecutor's opening remark about Ashford being robbed at knifepoint, and Victor's testimony that Ashford told him "they took the money," knowing that Ashford would not be testifying, constituted prejudicial prosecutorial misconduct. As was his prerogative, the judge decided to take curative measures to correct these errors rather than declare a mistrial.
The judge found that the State's failure to advise of Ashford's absence was a discovery violation meriting suppression of Ashford's statements. As such, when the jury was brought back into the courtroom after counsel's discussions, the judge immediately gave the following instruction:
I want to address one thing. Before you left . . . [Victor] who's testifying now, was asked what [Ashford] told him when he came inside. All right? What [Ashford] told him is — is inadmissible. All right? He's not here to be cross examined. If he's here to be cross examined then you can consider that statement. He's not here. [So] whatever [Ashford] told [Victor] is inadmissible. You can't consider it for any purpose. You can't rely on it for any purpose. It's not evidence in this case. Do you understand that? . . . [A]ny suggestion or inference you want to draw of what [Ashford] said or what [Ashford] may have said you can't. All right? Let's proceed.
The judge later granted defendant's motion for judgment of acquittal at the close of the State's case as to count two of the indictment, armed robbery against Ashford, because no proof of that robbery was admitted. Specifically, the only proffered evidence was Ashford's excited utterance to Victor, which the court suppressed as a discovery sanction against the State. Any allegation of prejudice arising from defendant's inability to prepare a defense to Ashford's statements is thus unavailing.
At the beginning of the jury charge, the judge repeated his admonition to the jury not to consider the prosecutor's reference in his opening to the robbery of Ashford:
[The prosecutor] told you in his opening that he will prove that while a robbery was occurring inside the [convenience store portion of the station], another attendant was being robbed at knife-point outside. As I told you a number of times, openings are not evidence, and in this case there has been no evidence of such a robbery occurring outside the [store]. That's why, number one, no one addressed it in their summation, and I have ruled in this case that the original charge of the armed robbery . . . that was alleged to have occurred outside would not be submitted to you for your consideration, and, therefore, you must disregard anything that [the prosecutor] may have said about that robbery occurring outside the [store] in his opening statement. It is not a part of this case and not for your consideration.
. . . .
[Y]ou should understand at this point that count two that I indicated was part of the indictment and that was referred to in [the prosecutor's] opening is no longer part of this case. All right?
The judge reminded the jury several times throughout the proceedings and in the final charge that comments made by the attorneys are not evidence, and may not be considered in deliberations.
Finally, the court instructed the jury that stricken testimony is not evidence, and must also be disregarded. He noted "that even though you may remember the [stricken] testimony, you are not to use it in your discussions or deliberations." The judge expressly stated that the "only evidence of a statement in this case is [Victor's] statement to the police. No evidence concerning any other statements has been presented in this case."
Juries are presumed to follow the judge's instructions. State v. Loftin, 146 N.J. 295, 390 (1996). The judge repeatedly instructed the jury to ignore the prosecutor's comments and Ashford's statement in "definite and unexceptionable terms." Vaszorich, supra, 13 N.J. at 115. The judge did not abuse his discretion by choosing to cure these errors through instructions rather than a mistrial.
Similarly, any prosecutorial misconduct here arising out of the prosecutor's actions or inactions was cured by the judge's suppression of Ashford's statements "for any purpose," his instruction to disregard the pertinent portion of the prosecutor's opening, and his dismissal of count two.
As to counts one and three, the State submitted more than sufficient proof that defendant and co-defendant Cox planned and committed the armed robbery of Victor. Specifically, the State's evidence included the surveillance video, where defendant and Cox are clearly seen committing the robbery while Cox holds his hand inside his jacket; Victor's testimony that he believed Cox had a gun, which the jury found credible; the cash, three cartons of Newport 100s, and incriminating clothing obtained from the van; that defendant and Cox co-executed the robbery and had a friend ready to pick them up with a van nearby; and that defendant and Cox were apprehended, in the same clothing they are depicted wearing in the surveillance video, about 1000 feet from the crime immediately after its commission. Given these overwhelming proofs and the judge's curative sanctions and instructions, we find no reversible error in the judge's denial of defendant's motion for a mistrial.
B.
Defendant contends that the trial judge erred in denying his motions for judgment of acquittal notwithstanding the verdict under Rule 3:18-2 and for a new trial under Rule 3:20-1. Defendant argues that Victor's equivocal responses to having seen co-defendant Cox hold a gun rendered Victor's belief that Cox had a gun unreasonable, and in turn, rendered the jury's verdict impossible. We disagree.
On a motion for an acquittal notwithstanding the verdict, the standard of review is
"whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find" beyond a reasonable doubt that the crime occurred within the State."On such a motion, the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). In reviewing the denial of a motion for judgment of acquittal, we apply the same standard and independently review the evidence against the defendant. Reyes, supra, 50 N.J. at 459.
[State v. Denofa, 187 N.J. 24, 44 (2006) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
As to a new trial, Rule 3:20-1 states:
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.We must therefore decide whether a reasonable jury could find, based on the evidence produced by the State together with all favorable inferences, defendant guilty of armed robbery of Victor beyond a reasonable doubt. If not, we must determine whether defendant's guilty verdict is "clearly and convincingly . . . a manifest denial of justice." Ibid.
A person is guilty of robbery if, in the course of committing a theft, he "threatens another with or purposely put him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1(a)(2). Robbery is a first-degree crime when the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). Simulated possession of a deadly weapon satisfies the statute where an "unequivocal or unambiguous simulation of a weapon possessed" or an "ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon" exists. State v. Chapland, 187 N.J. 275, 292 (2006). In other words, merely pretending to have a weapon suffices, so long as the victim also has a reasonable, "subjective belief that the device or instrument [is] 'capable of producing death or serious bodily injury'" in the circumstances. State v. Hutson, 107 N.J. 222, 227 (1987) (quoting N.J.S.A. 2C:11-1(c)). Any simulated weapon will suffice, even a "finger . . . placed in the pocket in [the] shape of a gun and combined with threatening words or gestures." Id. at 227-28.
Our independent review of the State's evidence leads us to conclude that a reasonable jury could have found defendant guilty beyond a reasonable doubt of conspiracy to commit and the actual commission of first-degree armed robbery of Victor.
Victor repeatedly testified that he "felt [Cox] had a gun." This satisfies the requirement that the victim have a subjective belief that a weapon capable of causing death or serious bodily injury was present.
Our review of the surveillance video bolsters Victor's testimony. The video depicts defendant entering the store and boldly walking straight to the area behind the counter. Cox is seen entering with his right hand tucked inside the front of his jacket. He stands in front of the counter while defendant gestures threateningly at Victor with his fist. Once the cash register is unlocked, defendant pushes Victor aside to grab the money faster, then puts the drawer on the counter to allow Cox to assist. Never removing his right hand from inside the front of his jacket, Cox grabs money with his left hand. Clearly, any objective observer of the surveillance video would conclude that Cox held a gun under his jacket. Moreover, Victor is visibly frightened, holding his hands up and gesturing for the men to take what they want from the store while literally backed into a corner.
Defendant was identified in the surveillance video at trial by officers who contemporaneously viewed the video and interrogated and arrested him on the night of the robbery.
Defendant was apprehended a mere 1000 feet from the gas station, shortly after the robbery, and wearing the same distinctive clothing he is seen wearing in the video.
Inside the van in which defendant was apprehended, officers found cash and three cartons of Newport 100s, which the jury could reasonably conclude were the fruits of the robbery, in addition to the knit cap and bandanna worn by defendant.
The State's evidence, viewed in its entirety, could lead a reasonable jury to conclude that defendant and Cox planned and committed this armed robbery, that they led Victor to believe Cox had a gun, that Victor in fact believed that Cox had a gun, and that Victor's belief was reasonable.
Appellate intervention is unwarranted if the jury's verdict was grounded on its assessment of witness credibility, unless the jury's "conclusion could only have been motivated by a mistake, partiality, passion, or prejudice." State v. Haines, 20 N.J. 438, 446-47 (1956). The surveillance video in particular militates against such a finding. We find instead that the jury's verdict was based on the State's evidence and an appropriate credibility evaluation of Victor's testimony. The trial judge properly denied defendant's motions for judgment of acquittal notwithstanding the verdict and for a new trial.
C.
Defendant next argues that his conviction for armed robbery in count one, together with the two aggravating factors found by the judge, warranted only the imposition of the minimum ten-year sentence, instead of the term of eleven years and six months that he received.
When the sentencing court's findings are grounded in competent, credible evidence and the court applied correct legal principles in exercising its discretion, we modify the sentence only if it is such a clear error of judgment that it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). The test is "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).
Here, the sentencing judge found aggravating factors three and nine based on defendant's six adult arrests, prior burglary and theft charges, and the number of "incidents and robbery-related incidents" in which he was involved "over a very short period of time." Defendant's pre-sentence report constitutes competent record evidence on which the judge correctly relied to ground these findings.
Moreover, the judge rejected the State's argument for application of aggravating factors six and eleven as unsupported. He found no mitigating factors, and thus, the aggravating factors outweighed the mitigating factors. The judge acknowledged that the minimum term for a first-degree crime is ten years, and that defendant's exposure was up to thirty years.
Contrary to defendant's assertions, the judge was not required to state that he was deviating from the minimum term. The Court in State v. Natale, 184 N.J. 458, 487-88 (2005), rejected the notion of presumptive terms. Instead, we are "bound to affirm a sentence . . . as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." Id. at 489 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). The aggravating and mitigating factors found here were properly supported by record evidence. Even though the aggravating factors preponderated, defendant was still sentenced at the low end of his sentencing range. Under the circumstances of this case, defendant's sentence does not shock the judicial conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION