Opinion
DOCKET NO. A-0486-12T3
12-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARVIN DAMON, a/k/a MARVIN T. DAMON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-01-0160. Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by HOFFMAN, J.A.D.
Following a jury trial, defendant Marvin Damon appeals from his convictions for first-degree armed robbery, N.J.S.A. 2C:15-1(a), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). Defendant was sentenced to twenty-five years in State prison, subject to the eighty-five percent period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues various evidentiary errors and flawed jury instructions require we vacate his conviction and order a new trial. Alternatively, he maintains the sentence imposed was improper and excessive. More specifically, he asserts:
Point 1 The trial court erred in denying defendant's motion to exclude from evidence a gun found by police.We have considered these arguments in light of the trial record and the applicable law. We affirm.
Point 2 The trial court erred in denying defendant's motions for acquittal and judgment notwithstanding verdict.
Point 3 The trial court's jury charges were improper and prejudicial to defendant, depriving him of a fair trial below (partially raised below).
Point 4 Remand should be ordered so defendant can have an opportunity to present a claim of ineffective assistance of trial counsel (plain error).
Point 5 Defendant's sentence is improper and excessive; remand for resentencing before a different trial judge is warranted.
I.
We derive the following facts from the record. On July 31, 2010, at approximately 10:00 a.m., G.H. left his residence in Camden to meet his business partner. While travelling on his bicycle, G.H. encountered a friend to whom he owed money. The friend was seated in a black truck with several other people, including defendant. G.H. removed approximately $1200 from his pocket, and gave a few dollars to his friend. G.H. then left to meet with his partner.
Following the meeting, G.H. began returning home. While biking down the street, the same black truck passed by G.H. and turned around at the next corner. Soon after, defendant walked from around the corner. As G.H. rode past, defendant struck him with a gun, knocking him off of the bicycle and onto the ground. According to G.H., "He had this . . . big gun in his hand and he swung at me and I fell and then he jumped over top of me and told me to give him everything that I had and I looked at him and told him he was crazy . . . ." G.H. pushed himself away, stood up, and began backing into the street, hoping to attract the attention of passing motorists, while defendant pointed his gun directly at him.
At this time, Patrolman Gerald Henkel, a fourteen-year veteran of the Pennsauken Township Police Department, approached the intersection in a police car. Defendant attempted to get on G.H.'s bicycle and hide the gun in his pants. Patrolman Henkel yelled, "Man with a gun[!]" Defendant dropped the bike and ran behind the police car, entering a nearby alley.
Patrolman Henkel lost sight of defendant between houses, but spotted him a block away as he ran across the street and hid between some parked cars. The patrolman observed defendant crawl across the sidewalk and onto a porch, where he was apprehended. Defendant was unarmed at that time. G.H. positively identified defendant as his attacker at the scene.
The next day, a police investigator retrieved a handgun that had been found by a resident in a nearby yard. Forensic analysis of the gun revealed no fingerprints or blood on the weapon. The gun was a replica of an antique "cap and ball revolver," which utilized black powder and metal balls rather than modern bullets. The revolver had a distinctive appearance, with a long barrel and a brown stock. Defendant did not have a permit to own or carry a handgun. Due to a clerical error, the State did not inform defendant of its possession of the gun, until October of 2011.
A Camden County grand jury charged defendant with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b) (count two); second—degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three);) fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); and third—degree aggravated assault, N.J.S.A. 2C:12-1(b)(2)(count five).
Prior to trial, defendant moved to exclude the gun under N.J.R.E. 403. Defendant argued that, due to the lack of forensic evidence, the risk of undue prejudice substantially outweighed the probative value of the weapon. The trial court denied defendant's motion, finding that "the probative value is not substantially outweighed by the risk of undue prejudice, confusion of issues, or would tend to mislead the jury."
Trial began on April 24, 2012. At trial, G.H. and Patrolman Henkel positively identified both defendant and the gun. G.H. admitted to having several prior convictions, including theft and drug charges. Corrections Officer Noel Roman, a bystander, generally corroborated the State's account of the incident, and positively identified the gun, but was unable to identify defendant as the perpetrator.
Defendant elicited testimony that the gun had been returned to police storage on November 1, 2011, and again on November 18, 2011, suggesting that it had been removed from storage without any record. Investigator Laura Marrone, who was assigned to the case at the time, testified that the inconsistency was a clerical error, and that the gun never left storage during that period. Defendant also presented an alibi witness, who said that defendant had spent the entire day hanging out on the porch where he was arrested.
The jury found defendant guilty on count one, first-degree armed robbery, and count four, fourth-degree aggravated assault, but found defendant not guilty on the remaining charges, including unlawful possession of weapon and possession of a weapon for an unlawful purpose. Prior to sentencing, defendant moved for acquittal, pursuant to Rule 3:18-2, or, in the alternative, for a new trial pursuant to Rule 3:20-1.
Defendant argued that his exoneration on the weapon's possession charges contradicted the armed robbery and aggravated assault charges, as the latter also required possession of a weapon. The court denied defendant's motions, finding that the weight of the evidence supported the convictions, and that the verdict was consistent.
At sentencing, the court found aggravating factors three, six, and nine, weighed in favor of a sentence above the mid-term of the applicable range and less than the mid-term of the applicable range, and that no mitigating factors weighed in favor of a reduced sentence. N.J.S.A. 2C:44-1(a)(3), (6), (9). In particular, the court rejected defendant's request for application of mitigating factors two - defendant did not contemplate his conduct would cause or threaten harm, and eleven - imprisonment would entail excessive hardship to defendant or his dependents. N.J.S.A. 2C:44-1(b)(2), (11). Regarding mitigating factor two, the judge found that "defendant armed himself with a handgun, with which he struck [G.H.]. Therefore, it is clear that the defendant did intend to harm [G.H.]." Regarding mitigating factor eleven, the judge found that defendant failed to demonstrate how the harm to himself or his family "will be any different from any other inmate's family." Accordingly, the court determined the aggravating factors clearly outweighed the mitigating factors.
The trial court also granted the State's motion to find defendant eligible for an extended term, pursuant to N.J.S.A. 2C:44-3. Defendant was approximately twenty-seven years old at the time of this offense. By that age, he had already compiled an extensive criminal history, including ten juvenile adjudications, five superior court convictions, and three municipal court convictions. Defendant's prior convictions include possession of a rifle or shotgun, possession of controlled dangerous substances, eluding arrest, and violent threats.
The court sentenced defendant to twenty-five years of incarceration on count one, with eighty-five percent parole ineligibility under NERA and five years of parole supervision on release, as well as a concurrent eighteen months of incarceration on count four, with eighteen months of parole ineligibility. This appeal followed.
II.
Defendant first argues that the trial court erred by denying his motion to exclude the gun. When reviewing a motion to exclude or suppress evidence, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). Legal conclusions by the trial court are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). However, the weighing of relevance against undue prejudice, under N.J.R.E. 403, is left to the discretion of the trial court, and will only be reversed for a palpable abuse of discretion. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).
N.J.R.E. 403 provides "relevant evidence may be excluded if its probative value which substantially outweighed by the risk of . . . undue prejudice . . . ." Relevant evidence, in turn, "means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The burden of proof rests on defendant to show actual undue prejudice, rather than the mere possibility of prejudice, substantially outweighs the probative value. State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Defendant argues that the gun was not relevant here, as the State allegedly produced insufficient proof to link the weapon to the robbery. Defendant argues, "[i]ntroducing the gun permitted the jury to speculate whether defendant hid or disposed of the gun in the area found or used it in the robbery in question."
The authority relied upon by defendant is inapposite. See State v. Tamburello, 69 N.J. Super. 166, 172 (App. Div. 1961) (undue prejudicial value of weapons, lawfully possessed, outweighed relevance to crime of bookmaking); State v. Anderson, 76 S.W.3d 275, 277 (Mo. 2002) (undue prejudicial value of a gun brochure outweighs insubstantial relevance to crime of armed robbery). Unlike the facts in those cases, the evidence here is directly related to the crimes alleged. Any attempt to prove that defendant possessed a weapon at the time of the robbery necessarily begs an explanation of why defendant did not possess a weapon at the time of his arrest. While recovery of a similar gun from a nearby yard, one day later, is only circumstantial evidence that defendant dropped it there, the evidence is still compelling. The inference that defendant used the gun in the robbery and then discarded it in the yard is reasonably drawn from the circumstantial evidence. The absence of direct forensic evidence does not undermine the State's position, as "'a conviction may be had on circumstantial evidence alone . . . .'" State v. Rogers, 19 N.J. 218, 233 (1955) (quoting Goodwillie v. Bayonne, 2 N.J. 88, 89-90 (1949)).
The only prejudice plaintiff claims here arises from the very reason that the gun is relevant. "Damaging evidence usually is very prejudicial but the question here is whether the risk of undue prejudice was too high." State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987) (emphasis in original). As the gun was clearly relevant to the crimes alleged, and as defendant fails to point to any undue prejudice, the trial court was within its discretion to deny plaintiff's motion to suppress.
Defendant also argues that the gun should have been excluded because, under N.J.R.E. 901, there was a break in the chain of custody, and also because the state failed to produce the evidence until October of 2011. We are not persuaded.
Investigator Marrone explained the alleged break in the chain of custody to satisfy N.J.R.E. 901. The trial court was satisfied with her explanation, and the determination rested in the court's discretion. State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). As to the delay in production, defendant fails to explain how the "late" production of the evidence, approximately seven months before trial, prejudiced his case or deprived him of reasonable opportunity to prepare his defense. See State v. Bellamy, 329 N.J. Super. 371, 376 (App. Div. 2000) ("A defendant is entitled to know the State's case against him within reasonable time to permit the preparation of a defense"). Accordingly, we find these arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Defendant next argues that the trial court erred by denying his post-judgment motion for acquittal or new trial.
In reviewing whether the trial court properly denied the motion for a judgment of acquittal, we must view the State's evidence 'in its entirety and giv[e] the State the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute.
[State v. Spivey, 179 N.J. 229, 236 (2004) (alterations in original) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)).]
Defendant argues, first, that the State's proofs were insufficient to demonstrate that he was the robber, and, second, that the jury's verdict was inconsistent. As to defendant's identity, both G.H. and Patrolman Henkel positively identified defendant as the robber. Giving the state the benefit of this testimony, it is clear a jury could find guilt beyond a reasonable doubt.
As to the consistency of the jury's verdict, when, as here, the reason for the alleged inconsistency cannot be determined, we uphold the verdict if there is sufficient evidence to uphold the verdict beyond a reasonable doubt. State v. Grey, 147 N.J. 4, 11 (1996). "[W]e should not speculate as to whether the verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant." Ibid. As previously discussed, there was sufficient evidence here to uphold the verdict beyond a reasonable doubt.
Moreover, exoneration on the weapons possession charges does not necessarily negate conviction on the armed robbery or aggravated assault charges. Armed robbery, as charged, requires a threat to use a deadly weapon. N.J.S.A. 2C:15-1. Similarly, fourth-degree aggravated assault, as charged, requires possession of a firearm. N.J.S.A. 2C:44-1(b)(4). As the trial court noted, however, the jury verdict sheet specified that the weapons charges were specific to the gun introduced at trial, while the armed robbery and aggravated assault charges were not specific to that weapon. Therefore, the jury's verdict is consistent with the finding that, beyond a reasonable doubt, defendant used a gun in his attempt to rob G.H., but that the State failed to establish, beyond a reasonable doubt, that the gun introduced at trial was the gun used in the robbery based on the identifications by G.H. and Patrolman Henkel. Accordingly, a reasonable jury could conclude that defendant robbed G.H. at gunpoint, and as the jury's verdict was not inconsistent, the trial court did not err by denying defendant's post-judgment motion for acquittal or new trial.
Defendant next contends that the trial court should have provided the jury with a false-in-one, false-in-all charge, and with a cooperating witness charge. The false-in-one, false-in-all charge is left to the trial court's discretion. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L. Ed. 2d 374 (1961). Generally, it applies when it is shown that a witness consciously lied as to a material fact. Ibid.; State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960). Although defendant alleges that G.H. gave false testimony, he fails to identify any specific testimony as consciously false and material. Therefore, the court did not err by refusing to give the false-in-one, false-in-all charge.
As to cooperating witness instructions, defendant admits that he did not raise the issue below. Accordingly, defendant's argument is subject to the plain error rule. R. 2:10-2.
As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."We read the charge as a whole, and evaluate the alleged error against the strength of the State's case. Ibid.
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538, (1969), cert. denied 399 U.S. 930, 90 S.Ct. 2254, 26 L. Ed. 2d 797 (1970)).]
Cooperating witness instructions inform the jury that a witness who has been implicated in a criminal matter may have exchanged testimony favorable to the state for more favorable treatment towards their own conduct. Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006). Here, G.H. admitted to having a criminal record. Although there was some discussion as to whether G.H. had any open charges at the time of trial, defendant ultimately conceded that those charges were being dismissed for unrelated reasons. Therefore, G.H.'s criminal charges were all settled before trial, and independent of his favorable testimony. Moreover, the State's case was strong, as G.H.'s account was corroborated by both police officer testimony and testimony from an unrelated bystander. Accordingly, it was not plain error to omit cooperating witness instructions.
Defendant next argues he is entitled to an evidentiary hearing to determine whether his trial counsel provided ineffective assistance. "[W]e routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). Such claims should, instead, "be determined in a post-conviction relief proceeding." State v. McDonald, 211 N.J. 4, 30 (2012). We will only resolve a claim of ineffective assistance of counsel on direct appeal if the trial record provides the facts required to resolve the claim. State v. Allah, 170 N.J. 269, 285 (2002).
Here, defendant argues that his counsel should have: (1) requested cooperating witness instructions, (2) further cross- examined G.H. about a letter not introduced into the record, and (3) further cross-examined G.H. about the possibility he had exchanged his favorable testimony for lenient treatment on his own cases. At a minimum, defendant's second argument relies directly on evidence outside of the trial record, which is, therefore, not presently before us. Consideration of defendant's claim here would deprive him of the ability to submit the letter, or any other new evidence, in support of his argument. Accordingly, this is not the appropriate forum for the claim, and we decline to entertain it at this time. McDonald, supra, 211 N.J. at 30. We note that this ruling shall not have prejudicial effect should defendant choose to raise his ineffective assistance of counsel claim in a petition for postconviction relief.
Lastly, defendant challenges the sentence imposed by the trial court. We review sentencing decisions for the clear abuse of discretion. State v. Roth, 95 N.J. 334, 363 (1984). In particular, we determine: (1) whether the findings of fact are grounded in competent, reasonably credible evidence, (2) whether the factfinder applied the correct legal principles and guidelines, and (3) whether application of the facts to the law is such a clear error of judgment that it shocks the conscience. Id. at 363-64.
Defendant first argues that the trial court was biased because, after sentencing, the court stated that defendant "should have taken the plea offer." We see no evidence of bias or abuse of discretion in this comment. Plea offers provide defendants with favorable sentences in exchange for forgoing the cost and risk of trial, and are, by their nature, less punitive than sentences imposed on jury convictions. Defendant chose to risk a trial, and received an unfavorable verdict. There is nothing in the court's statement to suggest that it enhanced defendant's sentence because defendant refused a more favorable plea bargain. As defendant's argument lacks support in the record, it is unpersuasive.
Defendant next argues that he should not have been found eligible for an extended term under N.J.S.A. 2C:44-3. Defendant does not dispute that he meets the minimal statutory conditions for an extended sentence, but rather that State v. Dunbar, 108 N.J. 80 (1987), places additional requirements on the finding. However, defendant fails to recognize that Dunbar was overruled by State v. Pierce, 188 N.J. 155, 166 (2006), which held that "the statutory criteria for eligibility . . . determines whether a discretionary extended-term sentence is illegal as a matter of law." The trial court's discretion in actually awarding an enhanced sentence, instead, "is a function of the court's assessment of the aggravating and mitigating factors[.]" Id. at 168. As defendant does not dispute that he meets the statutory criteria for extended-sentence-eligibility, and as our precedent does not impose any additional requirements on the finding of eligibility, defendant's argument is without merit.
Finally, defendant argues that the trial court erred in its evaluation of the aggravating and mitigating factors. As previously discussed, the trial court's findings on individual aggravating factors must be "based upon competent credible evidence in the record." State v. Bieniek, 200 N.J. 601, 608 (2010). A generalized explanation of the sentence is sufficient to satisfy Rule 3:21-4(g), although the trial court is encouraged to explicitly address each individual aggravating and mitigating factor. Id. at 609.
Without elaboration, defendant argues that the court "gave insufficient explanation of the facts on which it relied in" applying aggravating factors three, six, and nine. Similarly, defendant concludes that the court "should have applied [mitigating factor eleven] in light of defendant's mental health history."
The record, as well as the trial court's explanation, adequately support the court's application of aggravating factors three, six, and nine. In particular, defendant was convicted of a serious offense involving physical violence, robbery at gunpoint, and flight from the police. Defendant also has an extensive criminal record, despite his young age.
Mitigating factor eleven provides for mitigation if "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[.]" The trial court concluded defendant failed to demonstrate any excessive harm to his young daughter, and "the fact that the defendant tried to commit suicide in the past does not indicate that he would suffer any greater hardship than any other person." We can find no other evidence of defendant's alleged mental health history in the record as submitted to us by defendant. Absent such supporting evidence, the court did not err by rejecting mitigating factor eleven. See State v. Dalziel, 182 N.J. 494, 504 (2005) ("[W]here mitigating factors are amply based in the record . . . they must be found." (emphasis added)).
The trial court's findings are supported by competent, reasonably credible evidence, its application of legal principles and guidelines was correct, and the resulting sentence does not shock the conscience. Roth, supra, 95 N.J. at 363. Accordingly, defendant's sentence was not an abuse of the court's discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION