Opinion
DOCKET NO. A-5147-11T3
07-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. CHARLES CARTER, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-0004.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Charles Carter, Jr., appeals from his conviction by a jury for armed robbery, assault, and related charges, and from his aggregate sentence of twenty years imprisonment. We affirm.
I.
The jury found defendant guilty of attempting to rob a liquor store across the highway from the motel where he was staying. It also found defendant guilty of assaulting the husband and wife proprietors of the store, in the course of which he stabbed and injured the husband with a utility knife. Additional charges involved the possession and use of the knife during the robbery, and, five days later, defendant's flight from the police and use of the same weapon.
Defendant represented himself at his trial and denied that he had ever been in the liquor store. The jury was able to view the robbery on a surveillance recording from the store. The victims identified defendant, he confessed when he was arrested, and his DNA was found on a towel the robber left behind.
On appeal, represented by an attorney, defendant raises a number of arguments that he did not make and preserve at the time of his trial. We reject all of defendant's arguments, concluding that none of them show plain error or an unfair trial, and that his sentence was within the discretionary authority of the sentencing court.
The facts were developed at several pretrial hearings and at defendant's six-day trial.
On July 23, 2009, a man came into Aarti's World Discount Liquors on Highway 22 in Union, displayed a knife, and demanded money. One of the owners of the liquor store, Hemlata Patel, testified that about fifteen minutes before the robbery, the same man entered the store and remained for about five to seven minutes. She recalled that she had seen the same man earlier that morning in the parking lot of the motel across the highway. The man approached the counter, stood two or three feet away, and asked for lottery tickets. After a conversation of a few minutes, the man started walking toward the back of the store. Hemlata asked the man to pay for the tickets, but he gestured, indicating that he forgot his wallet and was going to get it.
Fifteen minutes later, the man returned. Upon entering the store, he jumped on the counter and said "give me the money." He was holding a knife and a white towel. Hemlata attempted to separate herself from him by putting a small table between them, but the man knocked her over. She identified defendant as the man who had come into the store, demanded money, and threatened her with a knife.
The other owner of the store, Arvind Patel, had been sitting behind a shelving unit. He pushed the panic button to summon the police and came to his wife's aid. He struggled with defendant. Defendant jumped back on the counter, slashed Arvind's arm with the knife, and ran out of the store.
Police Officers Juan Vargas and Scott Heath arrived and found Arvind in the doorway with a towel wrapped around his forearm. The officers saw the store was in disarray and there was blood in the entryway, on the counter, and on the sides of the counter. Officer Vargas examined Arvind's wound, and later described it as a couple of inches deep and six to eight inches long.
Detective Donald Cook of the Union County Police Identification Bureau arrived at the scene and took the white towel and placed it in a bag for DNA analysis. He took a number of photographs of the scene. He also dusted the counter for fingerprints, but did not obtain usable prints.
Five days later, on July 28, 2009, Detective Christopher Baird saw defendant in the parking lot of the liquor store. Baird recognized defendant as a man he had seen walking on the bridge over Route 22 towards the liquor store on the date of the robbery. Defendant was carrying a red utility knife when Detective Baird saw him on July 28. Baird and his partner ordered defendant to stop, but defendant ran. The officers chased him through the parking lot, across Route 22, and to the Garden State Motor Lodge.
When the officers cornered defendant, he had his feet tangled in a fence. Defendant sliced his own throat three times with the utility knife. The officers, and other police who had arrived, ordered defendant to give the knife to one of the officers. Defendant eventually complied, and the officers attended to his wounds and took him to a hospital.
At the hospital, Officer Heath read defendant Miranda warnings. Defendant was lying on a gurney and seemed lucid and not under the influence of any drugs or medication. The officer did not question defendant at that time. One or two minutes later, defendant initiated a conversation and asked Officer Vargas to do him a favor. He asked the officer to apologize to several of his family members and to tell the owners of the liquor store that he was sorry, that he did not mean to hurt them, and that he just wanted the money. Vargas inquired what robbery defendant was referring to and whether he had a weapon. Defendant answered that he was referring to the liquor store across the highway from the motel and that he had used the same knife he was holding when arrested.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On the day of defendant's arrest, Hemlata Patel saw him from across the highway as he was being placed in an ambulance. She knew he was the robber. Two days later, Hemlata and Arvind Patel were shown photo arrays separately, and both identified defendant as the robber. The arrays were shown by Detective George Moutis, who was not involved in the investigation and did not know which photograph was the suspect in the robbery. Hemlata and Arvind also identified defendant as the robber while they testified at the trial.
In addition to the victims and police witnesses, the State presented testimony at trial from Margaret Cuthbert, who was qualified as an expert in forensic DNA analysis. Cuthbert tested two stains from the white towel that was recovered from the scene of the robbery. She concluded that Arvind was likely the source of a red-brown blood stain, and that defendant was likely the source of a yellow stain.
Defendant presented testimony of his father Charles Carter, Sr., regarding a police detective conveying an apology from defendant; his sister Theresa Counts regarding his physical appearance at the time in comparison to the victims' descriptions of the robber; Detective Cook regarding a shoeprint at the scene of the robbery; and his own testimony denying involvement in the robbery. Defendant testified he had never been to the store. He also denied running from the police on July 28, 2009. Defendant said he was sitting next to the fenced area where he was arrested when the police found him. According to defendant, he had just purchased a box cutter and was going to use it to take his own life, but not because he committed the robbery. He also denied making any statement or confession to the police at the hospital.
The jury convicted defendant of all eight counts of the nine-count indictment that it was asked to consider: first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts four and six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(d) (count five); fourth-degree obstruction of law or other governmental function, N.J.S.A. 2C:29-1 (count eight); and, third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count nine).
During the trial, the judge dismissed one weapons count.
At his sentencing hearing on April 13, 2012, the court found three aggravating factors and no mitigating factors applicable to the sentence. The court merged counts two through five with count one, the first-degree robbery charge, and sentenced defendant to sixteen years in prison, subject to the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2. On counts six, eight and nine, the court sentenced defendant to two terms of twelve months and one term of four years, respectively, to be served concurrently with one another, but consecutively to count one. The aggregate sentence was twenty years in prison, sixteen of which were subject to the eighty-five percent parole disqualifier of NERA.
II.
On appeal, defendant makes the following arguments:
POINT I
MR. CARTER DID NOT KNOWINGLY WAIVE HIS RIGHT TO COUNSEL BECAUSE THE COURT GRANTED HIS REQUEST AFTER ERRONEOUSLY INSTRUCTING MR. CARTER THAT HE BORE THE BURDEN OF PROVING MISTAKEN IDENTIFICATION. U.S. CONST. AMEND. VI; N.J. CONST. ART. I, PAR. 10. (Not Raised Below).
POINT II
THE TRIAL COURT'S LIMITATION AS TO MR. CARTER'S COURTROOM MOVEMENTS, BUT NOT THE STATE'S, VIOLATED MR. CARTER'S FEDERAL AND STATE RIGHTS AS A PRO SE DEFENDANT. U.S. CONST. AMEND. VI; N.J. CONST. ART. I, PAR. 10. (Not Raised Below).
POINT III
THE VARIOUS JURY CHARGES RELATIVE TO MR. CARTER'S STATEMENT WERE INSUFFICIENT TO ADVISE THE JURY OF THE NEED TO CRITICALLY AND EFFECTIVELY EVALUATE MR. CARTER'S ALLEGED STATEMENT IN LIGHT OF THE REALITY THAT JURORS ARE PRESENTLY INCAPABLE OF DISTINGUISHING BETWEEN FALSE CONFESSIONS AND TRUE CONFESSIONS. U.S. CONST. AMEND. VI;
N.J. CONST. ART. I, PAR. 10. (Not Raised Below).
POINT IV
THE MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATION SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO RECORD NECESSARY DETAILS OF THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS CONTRARY TO STATE V. DELGADO. (Partially Raised Below).
POINT V
OFFICER COOK'S OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF N.J.R.E. 701. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT VI
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. CARTER A FAIR TRIAL. (Not Raised Below).
POINT VII
MR. CARTER'S SENTENCE IS EXCESSIVE AND MUST BE REDUCED; A REMAND FOR AN EXPLANATION AS TO THE IMPOSITION OF CONSECUTIVE SENTENCES IS REQUIRED.
A. THE SENTENCING COURT IMPROPERLY FOUND AND WEIGHED AGGRAVATING FACTORS.
B. THE SENTENCING COURT VIOLATED THE PRINCIPLES OF STATE V. YARBOUGH IN SENTENCING MR. CARTER TO CONSECUTIVE TERMS.
As a preliminary matter, all of defendant's arguments with the exception of the sentencing issues are subject to the plain error standard of review because they were not raised during defendant's trial or in pretrial proceedings. See R. 2:10-2. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result," ibid., if it was "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).
Defendant contends the issue he raises in Point IV of his brief regarding the out-of-court photo identifications of him was partially raised in the trial court because he requested and was granted a Wade identification hearing and the trial court made rulings that he now challenges on appeal. But defendant admits that the ground he raises on appeal was not argued to the trial court. Consequently, we conclude that the plain error standard of review applies as well to Point IV.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Having reviewed the record and defendant's arguments, we find no plain error in the trial or pretrial proceedings.
A.
Before his trial, defendant wrote to the court stating that he wished to represent himself rather than to be represented by an appointed attorney. The court conducted a hearing to address defendant's request in accordance with the requirements of Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Crisafi, 128 N.J. 499 (1992); and State v. Reddish, 181 N.J. 553 (2004).
On appeal, defendant claims for the first time that he did not knowingly waive his right to counsel because the court granted his request to represent himself after erroneously instructing him that he bore the burden of proving mistaken identification. The allegedly erroneous instruction is contained in an exchange between the court and defendant regarding what defenses would be pursued at trial. The pertinent part of the exchange is as follows:
COURT: You're basically saying that they - they're not going to be able to identify me as the person who committed this - this robbery.Pointing to the emphasized language, defendant contends the court erred in instructing him on the applicable law of identification evidence and the error requires reversal of his conviction.
DEFENDANT: (indiscernible) yes.
COURT: Okay. You haven't looked into any — any other type of defense, though?
DEFENDANT: No. That — that — that's my sole defense.
COURT: And the other — and the other is, prove it.
DEFENDANT: Yes.
COURT: You have the obligation; prove it. And what's the obligation of the state?
DEFENDANT: Proof beyond a reasonable doubt.
[(emphasis added)].
If a defendant wishes to represent himself at a criminal trial, the court must determine whether he knowingly and intelligently waives the right to counsel and is aware of the dangers of self-representation. Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82. The New Jersey Supreme Court delineated the inquiry a court must undertake and the information a court must impart in Crisafi, supra, 128 N.J. at 509-12, Reddish, supra, 181 N.J. at 593-96, and State v. DuBois, 189 N.J. 454, 465-69 (2007). Failure to comply with these requirements can result in setting aside the defendant's conviction, unless an appellate court concludes that the defendant nevertheless actually, knowingly, and intelligently waived counsel. Crisafi, supra, 128 N.J. at 512; accord State v. King, 210 N.J. 2, 19-20 (2012).
Here, defendant misrepresents the meaning of the quoted exchange. The highlighted statement of the court was not a reference to defendant's burden of proof on mistaken identity. It referred to the State's burden to prove that defendant committed the crime. The court did not err in questioning defendant and making a statement about the burden of proof.
Defendant knowingly and voluntarily waived his right to counsel. He exhibited substantial knowledge during the colloquy, even citing Wade and Miranda in connection with pretrial motions he wished to make and referencing jury instructions pertaining to an oral confession. As in Crisafi, supra, 128 N.J. at 513, defendant "fully appreciated the risks of proceedings without counsel, and . . . decided to proceed pro se with his eyes open." The trial court appointed standby counsel to be present and to provide assistance to defendant as he requested during the proceedings. Later at trial, defendant proved himself quite adept at formulating a defense strategy, in questioning witnesses, and in arguing to the jury.
There was no plain error in the pretrial ruling permitting defendant to exercise his constitutional right of representing himself.
B.
Also with respect to self-representation, defendant argues that limitations on his courtroom movements during the trial violated his federal and state constitutional rights. He complains that the court did not impose the same limitations on the prosecutor.
The trial court considered how the trial would be conducted with a pro se defendant who was incarcerated and charged with a violent offense. It required defendant to remain behind counsel table at all times. The court similarly required the prosecutor to remain behind counsel table during opening and closing arguments but allowed the prosecutor to move around the courtroom and approach witnesses during the presentation of the State's case in chief.
The court also imposed other restrictions on defendant's ability to handle the knife recovered from him when he was arrested and on his attendance at side bar conferences, but these restrictions are not referenced by defendant on appeal.
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Defendant now argues that the unequal restrictions negatively affected the presumption of innocence and were clearly capable of producing an unjust result. He cites three federal cases in which the courts referred to similar restrictions being placed on the prosecutor as on a pro se defendant. See Frantz v. Hazey, 533 F.3d 724, 728 (9th Cir. 2008) (en banc); United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007), cert. denied, 552 U.S. 1144, 128 S. Ct. 1065, 169 L. Ed. 2d 814 (2008); Overton v. Mathes, 425 F.3d 518, 520 (8th Cir. 2005), cert. denied, 546 U.S. 1182, 126 S. Ct. 1358, 164 L. Ed. 2d 69 (2006). However, none of these cases held that equal restrictions were necessary to protect a defendant's right to a fair trial.
Because defendant did not contemporaneously object, he must demonstrate plain error to justify reversal of his conviction. A defendant's failure to object leads to the reasonable inference that the issue was not significant in the context of the trial. Macon, supra, 57 N.J. at 333; State v. Krivacska, 341 N.J. Super. 1, 42-43 (App. Div.), certif. denied, 170 N.J. 206 (2001). Overwhelming evidence of a defendant's guilt also leads to the same reasonable inference. State v. Hunt, 115 N.J. 330, 364 (1989); State v. Rose, 112 N.J. 454, 536 (1988). We stated in Krivacska, supra, 341 N.J. Super. at 43, that "to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage."
Here, the court made no mistake. It devised a reasonable, balanced solution to defendant's status as an incarcerated defendant who presented a security risk and his desire to represent himself at trial. The procedures devised by the court were within its discretionary authority to control the courtroom, and certainly not plain error that requires reversal of defendant's conviction.
C.
Next, defendant argues that the jury instructions regarding his confession "were insufficient to advise the jury of the need to critically and effectively evaluate" his confession. He cites cases, studies, and articles discussing the unreliability of confessions and contends that jurors are incapable of distinguishing between false and true confessions. Defendant also refers to mock jury studies that have found a high conviction rate in circumstances where persons confess falsely. Defendant then discusses research showing why "jurors [and judges] are ill-equipped to appreciate the social and psychological factors leading to false confessions."
Here, the trial court instructed the jury in accordance with Model Jury Charge (Criminal), "Statements of Defendant" (2010). The model instruction tells the jury to consider the statement in connection with "the generally recognized risk of misunderstanding by the hearer" and "the ability of the hearer to recall accurately the words used by defendant . . . because the presence, or absence, or change of a single word may substantially change the true meaning of even the shortest sentence." Ibid. The instruction also tells the jury to "take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to this issue." Ibid. Finally, the instruction tells the jury to "discuss any proof adduced before the jury which went to defendant's Miranda rights or the statement's voluntariness." Ibid.
Defendant argues these instructions are insufficient because, unlike the recently revised model jury charge on identification evidence, they do not provide "any specific factors, much less any scientifically valid factors, for the jurors to employ in determining the credibility" of a defendant's confession. Defendant further argues that the discussion of evidence regarding compliance with Miranda and the voluntariness of the statement is insufficient to account for the problems caused by false confessions because these safeguards do not prevent defendants from confessing falsely.
If this case depended entirely or nearly entirely on defendant's confession, he would have a better argument, in the appropriate forum, for improvement of jury instructions pertaining to the possibility that defendant confessed falsely. Our task, however, is to determine whether defendant received a fair trial with correct instructions to the jury in the context of his trial.
There was strong evidence in this case that defendant committed the robbery besides the police testimony conveying his admissions while in the hospital. Defendant was staying at the Garden State Motor Lodge across Highway 22 from the liquor store and was so distraught in his life that he obtained a utility knife for the purpose of killing himself. He denied ever being in the liquor store, but Officer Baird saw him crossing the highway overpass toward the liquor store or in the vicinity of the liquor store both on the day of the robbery and on the day of his apprehension. When apprehended, defendant was in possession of a utility knife. The robber had threatened the owners with a knife and slashed Arvind Patel's arm.
Patel's blood was on the towel that the robber left behind. Defendant's DNA was also on the same towel. Hemlata Patel had seen defendant in the area before the date of the robbery and saw him in the store asking to buy lottery tickets before he came back with a knife and demanded money. She had stood only a few feet from the man and spoke to him. She was able to identify him, both in a photo array and personally at trial. Arvind Patel was also able to identify defendant. There was ample evidence that defendant was the robber even without his apology to the victims.
The court conducted a careful charge conference as the trial progressed. Defendant reviewed several drafts of the written charge but never requested the instructions that he now contends the court was required to give in order for the jury to evaluate the credibility of his admissions. Defendant requested that the court provide a "false in one, false in all" charge advising the jury that if they found part of the confession not credible they could exclude the confession in its entirety. The court instructed the jury with the charge that both parties accepted.
There was no plain error in the trial court's jury instruction pertaining to evaluation of defendant's post-arrest, post-Miranda statements.
D.
Defendant argues the out-of-court identifications by the victims should have been suppressed because the State failed to record the dialogue between the witnesses and the police during the showing of the photo arrays, as required by State v. Delgado, 188 N.J. 48 (2006). Although defendant sought a pretrial hearing to determine the admissibility of the identification testimony, he never made an argument in the trial court about alleged police failure to record the dialogue during the showing of the photo arrays. Therefore, the plain error standard of review applies to this issue.
"Eyewitness identification can be the most powerful evidence presented at trial, but it can be the most dangerous too." Id. at 60. Consequently, Delgado "require[s] that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Id. at 63.
Delgado further noted that most law enforcement officers already followed this requirement by complying with the Attorney General's guidelines on preparing and conducting out-of-court identifications. Id. at 64. The guidelines provide:
When conducting an identification procedure, the lineup administrator or investigator shall preserve the outcome of the procedure by documenting any identification or nonidentification results obtained from the witness. Preparing a complete and accurate record of the outcome of the identification procedure is crucial. This record can be a critical document in the investigation and any subsequent court proceedings. When conducting an identification procedure, the lineup administrator or investigator should:
1. Record both identification and nonidentification results in writing,
including the witness' own words regarding how sure he or she is.
2. Ensure that the results are signed and dated by the witness.
3. Ensure that no materials indicating previous identification results are visible to the witness.
4. Ensure that the witness does not write on or mark any materials that will be used in other identification procedures.
[Id. at 61 (quoting Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures 7 (Apr. 18, 2001)).]
Here, Detective Moutis testified during the suppression hearing regarding his showing of the photo arrays to Hemlata and Arvind Patel and their identification of defendant. Moutis stated he read both witnesses "the photo display instructions," which were admitted as evidence at trial. He also referred to typed statements he prepared of the identifications made by Hemlata and Arvind and the exact words they used in making the identification. The court found "that the Attorney General guidelines were complied with." This includes the recordation requirement. See Delgado, supra, 188 N.J. at 61.
Defendant argues the dialogue between the witnesses and Moutis was not memorialized, but the record citations provided by defendant do not support his contention. Although the record does not clearly indicate that Moutis memorialized all of the dialogue between the witnesses and himself, it shows that at least some of the dialogue was memorialized. We reject defendant's argument that the State's failure to comply with the requirements of Delgado required that the identification evidence be suppressed.
Finally, to the extent defendant argues about the reliability of the identification evidence on the basis of factors and procedures established in State v. Henderson, 208 N.J. 208 (2011), the holdings of that case do not apply retroactively to identification evidence that was developed at an earlier time. Id. at 302.
E.
Defendant argues he is entitled to a new trial because the testimony of Detective Cook overstepped the boundaries of N.J.R.E. 701 as lay opinion testimony. Detective Cook testified as follows:
Q: Were any fingerprints recovered?
A: Nothing that was usable.
Q: What do you mean by nothing that's usable?
A: You could see the shape of a finger but there was no ridge detail, which is what's used for comparisons for identification purposes.
Q: And how is ridge detail used for comparison?
A: In the ridge detail, there's points that are called minutia points, but there was none in these lifts.
Q: So, essentially, your conclusion was you couldn't make a conclusion?
A: Not with those, no.
Expert testimony consists of those opinions that are based upon "scientific, technical, or other specialized knowledge." N.J.R.E. 702. The prosecution did not qualify Detective Cook as an expert in fingerprint analysis. But lay opinion testimony may be presented under N.J.R.E. 701, which rule provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.Consistent with this rule, a lay witness may "'give an opinion on matters of common knowledge and observation.'" State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)). As a corollary, lay witnesses are prohibited from providing opinions that are beyond common knowledge and therefore "cross[] over into the realm of expert testimony." State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995).
"Courts in New Jersey have permitted police officers to testify as lay witness, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989). There are limits to this exception, and police officers may not provide generalized expert testimony or to testify to matters they did not observe, see Kittrell, supra, 279 N.J. Super. at 235-36, nor are they allowed to "intrude on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out without expert assistance," State v. McLean, 205 N.J. 438, 461 (2011).
Here, most of Detective Cook's testimony did not exceed the bounds of permissible lay testimony because it was based on his personal observations and his experience. This includes the fact that no usable latent fingerprints were recovered from the crime scene because he saw "no ridge detail, which is what's used for comparisons for identification purposes." These statements are clearly based upon Detective Cook's personal observations of the latent fingerprint evidence and his experience as a member of the Police Identification Bureau.
Detective Cook's testimony that "[i]n the ridge detail, there's points that are called minutia points, but there was none in these lifts" delved close to the field of fingerprint analysis, which requires expert qualification or at least foundational evidence showing that Cook had the requisite training to make that determination. But that single answer was not prejudicial to the defense, especially since it was not evidence identifying defendant. Additionally, defendant did not raise a contemporaneous objection by which the court could have stricken the testimony and instructed the jury to disregard it.
Since there was no identification of defendant as the robber by means of fingerprint analysis, the single improper question and answer did not prejudice defendant's right to a fair trial. It was not plain error entitling him to a new trial.
F.
Defendant contends that the trial was so infected with error that even if each individual error does not require reversal, the aggregate effect of all the errors denied him a fair trial. See State v. Jenewicz, 193 N.J. 440, 473-74 (2008); State v. Orecchio, 16 N.J. 125, 134 (1954). Since we have rejected the bulk of defendant's separate arguments regarding trial and pretrial error, there is no reason to disturb the jury's verdict on the ground of cumulative error.
III.
Defendant argues his twenty-year sentence, sixteen years of which is subject to NERA, is excessive and was imposed without adequate findings as to aggravating factors and the need for consecutive sentences.
Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.
At the time of his sentencing, defendant was forty-three years old, had a record of six prior arrests, one indictable conviction for making terroristic threats, one disorderly persons conviction for theft, and four outstanding warrants from municipal courts. The court found applicable aggravating factor two (nature of harm and vulnerability of the victim, in particular, Hemlata Patel), N.J.S.A. 2C:44-1(a)(2), factor three (likelihood that defendant would commit another offense), N.J.S.A. 2C:44-1(a)(3), and factor nine (need for deterrence), N.J.S.A. 2C:44-1(a)(9). The court explained adequately the reasons for finding the three aggravating factors and no mitigating factors. See State v. Bieniek, 200 N.J. 601, 608 (2010). We find no basis in the record to disturb those findings.
Nor does the sixteen-year NERA sentence for an armed robbery where a victim was stabbed and slashed with a knife shock our "judicial conscience." See Roth, supra, 95 N.J. at 365.
Finally, defendant contends that the court erred in imposing sentences on counts six, eight, and nine that were consecutive to the sentence for the armed robbery as charged in count one. In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court set forth factors to be considered in determining whether to impose concurrent or consecutive sentences, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being
committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[100 N.J. at 644.]
We see no abuse of discretion in the judge's decision to impose sentences on the counts of the indictment arising from the offenses of July 28, 2009, that were consecutive to the merged sentence for the armed robbery of July 23, 2009. Defendant committed separate crimes on different dates. The police rather than the liquor store owners were endangered by defendant's conduct on July 28. The court adequately explained that it was fashioning an overall sentence for all of defendant's crimes and with consideration of the applicable law.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION