Opinion
DOCKET NO. A-3338-13T3
02-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ISAIAH GREENE, a/k/a ISAIAH LAMONT GREENE, TAZ GREEEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-05-1314. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Isaiah Greene appeals his sentence and convictions of first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree criminal restraint, N.J.S.A. 2C:13-2; and two counts of third-degree criminal sexual contact, N.J.S.A. 2C:14-3(a). Having reviewed the record and applicable law, we affirm the convictions, but remand for resentencing.
I.
The testimony at trial established that as Cathy parked her car and got out to go to a diner, defendant approached her and threatened her as if he had a gun. Defendant took Cathy's iPhone and cash from her wallet. He then pulled Cathy's car keys from her hand and directed her to get into her car. Defendant had difficulty operating the car, so Cathy drove the car. As Cathy was driving, defendant unbuttoned her blouse and reached his hand into her bra, touching her breast. Defendant instructed Cathy to take her pants off and, when she refused, he unzipped her pants and put his hand under her panties in her vaginal area. Cathy testified that she felt violated and disgusted by defendant's conduct.
Pursuant to Rule 1:38-3(c)(12), we use a fictitious name to protect the privacy of the victim.
As they continued to drive, Cathy saw an officer in a sheriff's vehicle. Seeing this as an opportunity to get the attention of the officer, Cathy drove her car in front of the vehicle, hitting the sheriff's vehicle. Immediately upon impact, Cathy jumped out of her car, pointed to defendant, and asked the officer for help. Defendant also jumped out of the car and fled the scene on foot. Although the officer did not see defendant's face, he was able to provide dispatch with a description of defendant's clothing, height, and weight.
Using an application on her cellphone that emits an electronic signal allowing her to trace the phone if lost or stolen, Cathy authorized the police to "ping" her phone. The ping indicated the phone was in the area of an address in Newark. When the police responded to that location, they observed two African-American men standing outside. One of the men was subsequently identified as defendant; he matched the description of the suspect. The officers observed that defendant had an iPhone, which was playing music. Thus, one of the officers called the police department and asked the officer who responded to call Cathy's iPhone number. The iPhone in defendant's possession rang and the officer observed the caller's phone number displayed on the screen was the phone number of the police department. The officers took possession of the iPhone and arrested defendant.
Cathy testified that she made several observations of defendant during the approximate fifteen minutes they were together in the car, and consequently had a clear recollection of what he looked like. She identified defendant's picture in a photo array. That photo array procedure was video recorded and played at trial. Cathy also identified defendant in court during trial.
After hearing all of the evidence, the jury found defendant guilty of first-degree carjacking, first-degree robbery, third-degree criminal restraint, as a lesser included offense of first-degree kidnapping under N.J.S.A. 2C:13-1, and two counts of third-degree criminal sexual contact. Defendant was sentenced to thirty years in prison with eighty-five percent parole ineligibility and five years parole supervision for carjacking; twenty years in prison with eighty-five percent parole ineligibility and five years parole supervision for robbery; five years in prison with two-and-a-half years parole ineligibility for criminal restraint; and five years in prison with two-and-a-half years parole ineligibility for each count of criminal sexual contact. The sentences for carjacking, robbery and criminal restraint were to run concurrently, the sentences for criminal sexual contact were to run concurrent to each other, but consecutive to the other sentences. Consequently, defendant's aggregate sentence was thirty-five years in prison with twenty-eight years of parole ineligibility.
The eighty-five percent parole ineligibility and the five-year parole supervision were imposed in accordance with the No Early Release Act, N.J.S.A. 2C:43-7.2. --------
II.
Defendant now appeals his convictions and sentence contending:
POINT I THE PROSECUTOR'S ARGUMENT IN SUMMATION THAT "IN ORDER TO NOT FIND THE DEFENDANT GUILTY, YOU HAVE TO FIND THAT [CATHY] IS LYING" CONSTITUTED PROSECUTORIAL MISCONDUCT NECESSITATING REVERSAL
POINT II DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE
A.
An issue at trial was Cathy's in-court and photographic identification of defendant. In closing, defense counsel argued that Cathy did not lie, but she mistakenly identified defendant. The assistant prosecutor, in his closing, argued that Cathy was sure of her identification of defendant. The assistant prosecutor stated:
Members of the jury, I respectfully suggest that in order to not find the defendant guilty, you have to find that [Cathy] is lying and the testimony in this case doesn't allow for that. It's clear that she was telling the detective the truth, she was telling you the truth and that truth is that this man, on December 10, 2011, carjacked her, he took her car by the use of force.
After the assistant prosecutor finished his closing, defense counsel objected to the comment. The trial judge did not give an immediate curative instruction, but did so after the closing. That instruction was approved by defense counsel at a side bar conference. Specifically, as part of the charge, the judge instructed the jury:
It is your function to determine whether the witness's identification of the defendant is reliable and believable or whether it is based on a mistake or for any reason is not worthy of belief. Which is to say, you would not have to - - you would not have to find that [Cathy] was lying in order to discredit the identification and acquit the defendant. It would be your prerogative to find for some reason she was mistaken. That's all within the function - - your function.
Before us, defendant argues that the prosecutor's comment was an improper appeal to the jury to sympathize with the victim and, thus, denied defendant a fair trial. The State counters that the prosecutor's remark was a fair comment and any problem was cured by the trial judge's instruction to the jury.
A prosecutor's obligation is to ensure that justice is done. State v. Smith, 167 N.J. 158, 177 (2004); State v. Land, 435 N.J. Super. 249, 272 (App. Div. 2014). "[A] prosecutor must refrain from improper methods that result in wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Jenewicz, 193 N.J. 440, 471 (2008)).
In considering an alleged misconduct by a prosecutor, a reviewing court must first determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999). "[P]rosecutors are permitted considerable leeway to make forceful, vigorous arguments in summation." State v. Nelson, 173 N.J. 417, 472 (2002) (citing State v. Chew, 150 N.J. 30, 84 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999)). When reviewing a prosecutor's comments, those comments must be assessed "in the context of the entire trial record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)). Even if the prosecutor's comments amount to misconduct, that misconduct will not be grounds for reversal unless it was "so egregious that it deprived the defendant of a fair trial." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting Frost, supra, 158 N.J. at 83).
Here, when considered in full context, the assistant prosecutor's remark did not constitute misconduct. The trial judge had the opportunity to view the entire trial and did not believe the assistant prosecutor did anything improper in his closing. In our independent review of the record, we discern no basis for us to disagree with the trial judge's assessment. Moreover, while the comment by the assistant prosecutor may have been ill-advised, it does not warrant reversal. The trial judge gave a clear and correct instruction to the jury concerning how to assess Cathy's identification of defendant. See Model Jury Charge (Criminal), "Identification: In-Court and Out-Of-Court Identifications" (2012). Defense counsel approved that instruction. Thus, the jury had the proper instructions and defendant was not deprived of a fair trial.
B.
Defendant also argues his sentence was excessive. Defendant was sentenced to the maximum term permitted for each of his convictions.
Appellate review of a criminal sentence is generally guided by an abuse of discretion standard. State v. Case, 220 N.J. 49, 65 (2014). Under this standard, we will affirm a criminal sentence unless: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock the judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Moreover, we will not "substitute [our] judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).
At sentencing, the trial court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense), two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted on the victim), three, N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense), six, N.J.S.A. 2C:44-1(a)(6) (extent and seriousness of prior criminal record) and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The court also found defendant's youth as a mitigating factor. See State v. Rice, 425 N.J. Super. 375, 381 (App. Div.) (allowing the use of non-statutory mitigating factors), certif. denied, 212 N.J. 431 (2012).
We are compelled to remand the matter for resentencing because there is an inconsistency between what the judge found on the record during the sentencing hearing and the judgment of conviction. As noted during the sentencing hearing, the judge found aggravating factors one, two, three, six and nine. The judgment of conviction, however, does not identify aggravating factors one, three, or six. On remand, the judge must reevaluate the record developed at the sentencing hearing to ensure the judgment of conviction accurately reflects the relevant aggravating and mitigating factors in the case.
Independent of these issues, there is a substantive error that the court must address at resentencing. Specifically, the findings related to the aggravating factors one and two are not supported by competent evidence in the record. See Roth, supra, 95 N.J. at 363 (explaining that findings of aggravating and mitigating factors must be supported by "competent, reasonably credible evidence").
Aggravating factor one looks to "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). The term "cruel" as used in the statute requires that the defendant must have inflicted pain or suffering gratuitously, as an end in itself. See State v. O'Donnell, 117 N.J. 210, 217-18 (1989). When pain or injury occurs merely as a means of committing a crime, aggravating factor one is not established. When evaluating this factor, a court "must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Fuentes, supra, 217 N.J. at 74-75.
Aggravating factor two requires courts to consider:
The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.Aggravating factor two "focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime." State v. Lawless, 214 N.J. 594, 611 (2013) (citing N.J.S.A. 2C:44-1(a)(2)). Although "sentencing courts frequently apply both aggravating factors one and two, each requires a distinct analysis of the offense for which the court sentences the defendant." Id. at 600.
[N. J.S.A. 2C:44-1(a)(2).]
Here, the sentencing judge did not identify competent credible evidence to support aggravating factor two; the judge also did not make sufficient findings to support applying aggravating factor one to each of the crimes. With regard to aggravating factor two, the judge initially stated that there was no evidence to support that factor. In response, the assistant prosecutor stated: "This woman was unable to speak when she got out of the car that day. I think that's a pretty good sign that there was emotional trauma associated with this incident." Based on that argument by the State, the judge changed his mind and found aggravating factor two. A statement by counsel at sentencing, however, is not evidence. See State v. Loftin, 146 N.J. 295, 353 (1996). Thus, there was no competent, credible evidence to support the finding of aggravating factor two.
With regard to aggravating factor one, the sentencing judge applied that aggravating factor to each of the crimes for which defendant was convicted. The judge correctly noted that "where the court is sentencing for a group of charges, inherent elements of one charge can be used as aggravating factors for another." See State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988). Nevertheless, in applying that principle, the judge did not make specific findings of fact supporting the application of aggravating factor one to each of the crimes. Thus, it is unclear whether the court scrupulously avoided double-counting an element of the charged crime in its application of aggravating factor one. See Fuentes, supra, 217 N.J. at 73.
On remand, the sentencing judge must also clarify how the sentences are to run concurrently and consecutively. N.J.S.A. 2C:44-5(a) requires that when multiple sentences of imprisonment are imposed for more than one offense, "such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." Our Supreme Court has provided guidance in determining whether to impose concurrent or consecutive sentences. See 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). The judgment of conviction here is confusing because it suggests groups of sentences will run consecutively to each other. Thus, on remand the judge will need to clarify exactly which sentences are running concurrently and which are running consecutively.
Finally, the State argues the sentencing judge intended to impose an aggregate term of forty years in prison and, thus, the sentence should be modified accordingly. The State's position in this regard is incorrect. The Double Jeopardy Clause "protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). This protection is extended to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, S. Ct. 20256, 2062, 23 L. Ed. 2d 707, 716 (1969); Widmaier, supra, 157 N.J. at 490. Here, because defendant has begun to serve his sentence double jeopardy has attached.
Defendant "cannot be resentenced to an increased or enhanced [aggregate] term." State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005), certif. granted and remanded, 188 N.J. 349 (2006); see also State v. Rodriguez, 97 N.J. 263, 277 (1984) (explaining that a defendant can be resentenced without violating the Double Jeopardy Clause, provided the new sentence in the aggregate is not in excess of the originally imposed sentence). On remand, defendant cannot be sentenced to a more restrictive sentence than he received during his first sentencing. Accordingly, we vacate defendant's sentence and remand for resentencing. In view of this disposition, we do not address whether the sentences were excessive.
Affirmed as to the convictions. The sentences are vacated and remanded for resentencing. 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