Opinion
DOCKET NO. A-6238-09T1
03-27-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AHMAD J. JOHNSON, Defendant-Appellant.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief). Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, 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NOT FOR PUBLICATION WITHOUT THE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 Sapp-Peterson, Haas and Happas.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-10-1770.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Tried before a jury on a twelve-count indictment, defendant Ahmad Johnson was convicted of first-degree carjacking, N.J.S.A. 2C:15-2 (count one); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts two, six and ten); and three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts three, seven and eleven). Defendant was also convicted of the first-degree attempted murder of Lawrence Herring, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); the first-degree murder of Piotr Raczek, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:3a(2) (count nine); and second-degree witness tampering regarding Raczek, N.J.S.A. 2C:28-5a (count twelve). The jury did not reach count five, which charged defendant with the second-degree aggravated assault, serious bodily injury of Herring, N.J.S.A. 2C:12-1b(1), because this was a lesser-included offense of the attempted murder charge under count four. Count eight of the indictment, which charged defendant with witness tampering concerning Herring, was dismissed by the State prior to trial.
At sentencing, the trial judge merged count two into count one and sentenced defendant on count one to thirty years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and to a concurrent five-year term, subject to a three-year period of parole ineligibility on count three. The judge merged counts five and six into count four and sentenced defendant on count four to a consecutive twenty-year term, subject to NERA, with a five-year period of parole supervision upon his release, and to a concurrent five-year term, subject to three years of parole ineligibility on count seven. The judge merged counts ten and twelve into count nine, and sentenced defendant to life in prison, without eligibility for parole, on count nine, and to a concurrent five-year term, with a three-year period of parole ineligibility on count eleven. The sentence on count nine was to run consecutive to the sentences imposed on counts one, three, four and seven. The judge also ordered defendant to pay mandatory fines and penalties.
As already noted, the jury did not reach count five of the indictment. Therefore, as discussed at the conclusion of this opinion, the judgment of conviction entered in this case will need to be corrected to reflect the jury's disposition of this charge.
On appeal, defendant has raised the following contentions:
POINT I
ADMISSION OF HEARSAY VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESS AGAINST HIM (U.S. Const. Amends. VI, XIV; N.J. CONST., (1947), Art. I, ¶¶ 1, 9, 10) (PLAIN ERROR).
POINT II
ADMISSION OF MR. RACZEK'S OUT-OF-COURT IDENTIFICATION VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN AN UNRELIABLE IDENTIFICATION (U.S. CONST. AMENDS. V, VI, XIV; N.J. Const. ART. 1 ¶¶ 1, 9, 10) (PLAIN ERROR).
POINT III
THE JUDGE'S INSTRUCTIONS REGARDING THE OUT-OF-COURT IDENTIFICATION PROCEDURE WERE INSUFFICIENT BECAUSE THEY FOCUSED ON IRRELEVANT FACTORS AND FAILED TO FOCUS THE JURY ON FACTORS CRITICAL TO THE RELIABILITY OF THE IDENTIFICATION EVIDENCE (PLAIN ERROR).
POINT IV
DEFENDANT'S RIGHT TO CONFRONT THE PRIMARY STATE WITNESS AND THE STATE'S VERSION OF EVENTS WAS INFRINGED AT TRIAL BELOW, AND THE JURY INSTRUCTIONS DID NOT ADVISE THE JURY HOW TO PROPERLY EVALUATE THE STATE'S WITNESS'S TESTIMONY, DEPRIVING DEFENDANT OF A FAIR TRIAL.
POINT V
THE TRIAL COURT'S RESPONSE TO THE JURY DURING DELIBERATIONS, ABOUT THE NATURE OF A GRAND JURY INDICTMENT AND RESULTING PRE-ARRAIGNMENT CONFERENCE, DILUTED THE STATE'S BURDEN OF PROOF AT TRIAL AND DEPRIVED DEFENDANT OF A FAIR DELIBERATION PROCESS BY THE JURY (PLAIN ERROR).
POINT VI
THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING THREE MAXIMUM PRISON TERMS.
Defendant filed a supplemental brief on his own behalf and has raised the following contentions:
Point I
The Trial Court's Response to the Jury's Question about the Pre-Arraignment Conference, Given the Unique Circumstances of this Case, Deprived Defendant of Due Process and a Fair Trial. (Not Raised Below).
Point II
The Trial Court's Failure to Provide the jury with a Limiting Instruction on the Use of Evidence of Defendant's Request to "Push up on" a State's Witness Deprived Defendant of Due Process and a Fair Trial. (Not Raised Below).
Point III
Juror #10's Failure to Disclose During Jury Selection that He knew a Fact Witness Deprived Defendant of a Fair Trial. (Not Raised Below).
Point IV
Trial counsel was Ineffective with Respect to his Handling of Juror #10's Failure to Disclose Material Information During Jury Selection. (Not Raised Below).
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence, and remand only for the correction of the judgment of conviction.
I.
The State developed the following proofs at trial. On March 3, 2005, at approximately 8:00 p.m., Officer Eric Infantes of the Jersey City Police Department saw Piotr Raczek waving him down as he drove down the street. Officer Infantes testified Raczek was hysterical and "moving around constantly just trying to tell us what happened." Raczek told Infantes he had just parked his car, a blue Subaru WRX STI model, when he was approached by two men. One of the men pointed a pistol at Raczek and ordered him to turn over his car keys and walk away. One of the men told Raczek that, if he turned around, he would be shot. The men then drove away in Raczek's car.
Raczek's friend, Erik Wildermann described the vehicle as a "rally car," meaning it was "a very fast car, it has a lot of horsepower."
Raczek described the man with the gun as "a Black male, dark skinned, approximately five-ten, 16, 17 years of age," with "a very narrow face" and "big cheek bones." The man was dressed in a black jacket and black pants and wore a black knit cap with red stripes on it. Raczek gave a similar description for the second assailant. Detective Keith Armstrong took Raczek to the police station and showed him some photos from the department's juvenile files. However, Raczek was unable to identify either suspect from the photos he was shown.
On March 5, 2005, two days after the carjacking, Lawrence Herring and his wife, Karen Walker-Herring, arrived at their home in Newark and noticed a blue car parked across the street from their house. Herring testified he recognized the car as one that he believed had been following him over the past "couple of days." As the couple brought their groceries into their house, the car drove away.
Later that evening, Herring picked up his friend, John Umstead, in his Ford Explorer and, as he drove around Newark, Herring noticed the same car. Herring pulled over and the car pulled next to him. Herring rolled down his window and he was shot multiple times in the face, back and shoulder. Umstead moved into the driver's seat and drove Herring to the hospital. At trial, both Herring and Walker-Herring identified Raczek's vehicle as the car they each observed that day.
Walker-Herring was notified of the shooting and she and the couple's daughter, who was home from college, went to the hospital. Defendant had formerly dated the Herrings' daughter. Herring objected to this relationship and testified he had an argument with defendant on the telephone in which he told defendant he could no longer see his daughter. As Walker-Herring was driving to the hospital, her daughter received a telephone call from defendant and, about an hour later, defendant arrived at the hospital. Walker-Herring testified that when a doctor came to speak to the family, defendant asked him whether Herring would be able to remember the shooting.
About two or three days after the shooting, Walker-Herring noticed the same blue car following her. She drove to the Irvington Police Department and gave police the license plate number of the car. The plate came back as belonging to Raczek's stolen vehicle. Detective John La Bella of the Newark Police Department obtained a photo of Raczek's car and showed it to Herring at the hospital. Herring identified it as the one involved in the shooting.
On March 9, 2005, the Newark police advised Detective Armstrong of this. Detective La Bella assembled a photo array of six suspects, including a photo of defendant, and gave it to Detective Armstrong. On March 10, Detective Armstrong picked up Raczek and brought him to the station to review the photos. He testified he gave Raczek written instructions "on how the array is conducted, what it consist[s] of" and had Raczek sign the form to indicate he had read and understood it.
Detective Armstrong showed the photos to Raczek one at a time. The detective testified that Raczek looked at the first four photos and said "no" to each one. When Raczek got to the fifth photo, however, the detective testified Raczek "actually became teary eyed. He actually paused. He stopped for a minute." The detective then showed him the sixth photo and Raczek said "no" to that one. After he regained his composure, Raczek asked to see the photos again. When he reviewed the fifth photo, Raczek said "that's him. Again, he became teary eyed, nervous, a little shaky." Detective Armstrong testified Raczek said he was "sure" of his identification. Raczek signed and dated the photo he had selected. Defendant was the individual in the fifth photo.
Detective La Bella testified that Raczek's car was thereafter recovered in Irvington, about two or three blocks from defendant's residence. The car was placed in the Irvington impound lot. Herring and Walker-Herring were taken to the lot to see the vehicle. Herring testified it was the car that was involved in the shooting and Walker-Herring again confirmed it was the car that had been following her.
Defendant was arrested on the carjacking charge, but was released on bail. On July 27, 2005, he was indicted on the carjacking charge. A pre-arraignment conference was held on August 30, 2005. One day later, on August 31, Raczek was murdered.
Henry Rivera testified he had been "hanging out" with defendant during the Summer of 2005 and saw him "basically" every day. Defendant told Rivera he had committed the carjacking with another individual known as "L." Defendant also admitted he had used Raczek's car when he shot Herring. "L" was with defendant at the time of the shooting. According to Rivera, defendant was "stressing" about the pending carjacking case and was worried it would lead to him being charged for the Herring shooting.
On August 31, defendant picked up Rivera in defendant's dark green Lumina, which had tinted windows. Defendant told Rivera that he "was going to try to persuade [Raczek] not to come to [c]ourt, rob him." Defendant further explained "[h]e was going to try to bribe him, holla at him, see if he could take some money, try to intimidate him[.]"
Around 10 p.m. that night, Allison DeRobertis, who lived on Raczek's street, testified she saw a green car with tinted windows circling the block. Wildermann, who lived on the same street, saw the vehicle stop on the street. Two men got out and asked him if they could park by a fire hydrant. Wildermann told the men they would probably get a ticket if they parked there. Wildermann went back into his house and saw the men walking back to the car.
Rivera testified that defendant drove around looking for parking and then stopped again on Raczek's street. Defendant got out of the car and Rivera saw he was carrying a gun. While Rivera was sitting in the car, defendant called him twice on his cell phone. The second time, defendant told Rivera he had seen Raczek.
Defendant's phone records were admitted in evidence and showed that he had made two calls, one at 10:49 p.m. and the other at 10:52 p.m. to a cell phone subscribed to by Rivera's wife. Detective Kevin Wilder of the Hudson County Prosecutor's Office testified both phone calls were made within one mile of a cell tower located 500 feet from where Raczek was found shot.
Two cell phones were covered by this subscription plan. Rivera testified he and his wife each used one of the phones and that the calls were made by defendant to the phone he used.
After the second call, Rivera testified that he heard gun shots. Defendant then jumped into the car and drove off. DeRobertis testified that after hearing gunshots, she again saw the green car driving down the street.
Defendant drove Rivera back to Newark so defendant could "[s]witch cars" at "his mom's house." Defendant wanted to "double back" to Jersey City "[t]o make sure Piotr was down." Defendant's cell phone records revealed that his cell phone moved from Jersey City to Newark between 10:52 p.m. and 11:08 p.m. After switching cars, Rivera testified defendant drove to a female friend's house and "[d]umped the gun on her[.] Defendant and Rivera then drove back to Jersey City. Defendant's cell phone records revealed a call was placed at 11:59 p.m. using a cell tower near Journal Square in Jersey City. When defendant and Rivera got near Raczek's house, they saw the police activity there and defendant drove Rivera to Rivera's home in Bloomfield.
At approximately 10:54 p.m., Officer Maria Ruocco of the Jersey City Police Department responded to a call "for shots fired[.]" She testified she found Raczek "lying on his side in a fetal position" in front of his house. She could not detect a pulse. Dr. Lyla Perez subsequently performed an autopsy and testified Raczek had been shot six times in the chest and torso.
Detective Wilder also responded to the scene immediately following Raczek's shooting. However, when he learned defendant had been indicted, the preceding day, for hijacking Raczek's car, he along with other officers proceeded to defendant's home in Irvington. The officers found a dark green Lumina with tinted windows parked in the driveway. Defendant was at the home and told Detective Wilder he had been home since 10:00 p.m. the previous evening. Defendant voluntarily gave the detective his cell phone number and consented to a vehicle search. No evidence was found during the search. Defendant was not arrested at that time.
According to Detective Wilder, defendant later gave two statements to the police. On September 19, 2005, he again told the detective he had been had been home on the night of the shooting. On September 29, he told the detective he had loaned his cell phone "out to somebody whom he doesn't remember and got it back" about 10:00 p.m. on the evening of the shooting.
Defendant was subsequently arrested. On February 13, 2007, he sent a letter from jail to a friend, Rasheen Smalls. The letter was recovered by the Internal Revenue Service as part of an unrelated investigation and then turned over to the Hudson County Prosecutor's Office. By this time, Rivera had already agreed to testify against defendant at trial.
In the letter, which Rivera read at trial, defendant told Smalls that Rivera "threw him under the bus for no reason." Defendant asked Smalls to tell a mutual friend, Abdul Meyers, "to holla at this man [indicating Rivera] and tell him to fix what he fucked up." Smalls was also instructed to "[t]ell him under no circumstances can he get on the stand." Defendant also asked Smalls and others "to push up on him and don't let him finish me please."
Defendant testified at trial. He denied carjacking Raczek's car or shooting Herring. He claimed he had a good relationship with Herring. Defendant also denied murdering Raczek. Instead, he implicated Rivera in that crime. Defendant testified he loaned his car and cell phone to Rivera around 8:00 p.m. the night of Raczek's death. At approximately 11:00 p.m., Rivera returned the car, but not the cell phone. Defendant testified Rivera returned with his cell phone at 3:00 a.m. and told defendant he "hollered at the old boy for [him]." When defendant asked Rivera what he was talking about, Rivera said Raczek "wasn't coming to Court. You don't got nothing to worry about." Defendant stated he never provided this information to the police in any of his statements because he was "being a good friend" to Rivera.
II.
Because Raczek had been murdered prior to trial, he was obviously not available to testify. The State called Officer Infantes to testify about the statements made by Raczek immediately after the carjacking and Detective Armstrong to testify about Raczek's subsequent identification of defendant as the perpetrator. Defendant did not object to this testimony. For the first time on appeal, defendant contends the trial judge's admission of Raczek's statements was an abuse of discretion resulting in plain error which not only violated the hearsay rules, but also defendant's constitutional right to confront witnesses against him. We disagree.
Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); see also State v Savage, 172 N.J. 374, 402 (2002). Hearsay is generally inadmissible because it is "untrustworthy and unreliable[.]" State v. White, 158 N.J. 230, 238 (1999). Some hearsay, however, is admissible, because "exceptions are created out of necessity and are justified on the ground that 'the circumstances under which the statements were made provide strong indicia of reliability.'" Id. at 238 (quoting State v. Phelps, 96 N.J. 500, 508 (1984)).
The Confrontation Clause contained in the Sixth Amendment, which applies to the states by way of the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" The Supreme Court of the United States has held that the Confrontation Clause bars the admission of "[t]estimonial statements of witnesses absent from trial" except "where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004).
We review the admission of evidence employing an abuse of discretion standard. Here, Raczek was unavailable to testify at trial, but defendant had not had a prior opportunity to cross-examine him. Therefore, the testimony of the officers concerning what Raczek had told them was hearsay and subject to timely objection.
However, defendant raised no objection to this testimony at trial. We review arguments raised for the first time on appeal under a "plain error standard." Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Errors in admitting evidence, including those brought to the trial judge's attention, are not grounds for reversal if deemed harmless. Macon, supra, 57 N.J. at 337-38. This is true even if the errors are of a constitutional dimension. Id. at 338. Trial errors may be found harmless when evidence of guilt is overwhelming. State v. Gillispie, 208 N.J. 59, 93 (2011).
That is clearly the case here. The State presented overwhelming evidence that defendant murdered Raczek to make him unavailable as a witness on the carjacking charge. Rivera testified that defendant confided in him that he had carjacked Raczek's vehicle and that he needed to take steps to ensure Raczek would not testify against him on that charge. The day after defendant's pre-arraignment, Rivera accompanied defendant as he drove to Raczek's home. Rivera saw Raczek get out of the car carrying a gun. He then received two telephone calls from defendant indicating he saw Raczek. Rivera heard the shots and was with defendant as he drove away from the scene. Raczek's neighbors saw defendant's car on the street and defendant's own phone records confirmed that the calls were made. Defendant later sent a letter to a friend from jail stating that Rivera needed to be silenced before he could testify.
Under these circumstances, where there was overwhelming evidence demonstrating defendant's guilt, independent of Raczek's identification of him, we perceive no plain error in the admission of the officers' testimony. Given the strength of the other evidence presented, this testimony was not "clearly capable of producing an unjust result." Macon, supra, 57 N.J. at 337. Therefore, we reject defendant's contention.
Moreover, effective July 1, 2011, N.J.R.E. 804(b)(9) now clearly permits the admission of an out-of-court statement by a witness who is unavailable if the defendant engaged in wrongdoing to prevent that witness from testifying. The Supreme Court found that this new rule of evidence should be adopted in State v. Byrd, 198 N.J. 319, 349-350 (2009). The Court noted that a forfeiture-by-wrongdoing exception to the hearsay rule reflects long-standing legal and equitable principles that were well recognized at the time of the offenses involved in the present case. Id. at 334-49. In her concurrence in Byrd, Justice LaVecchia, citing extensively to the common law's long-standing recognition of the forfeiture-by-wrongdoing doctrine, believed that enactment of the hearsay exception need not precede a court's exercise of its inherent equitable powers to address "a defendant's wrongdoing that undermines the judicial system." Id. at 358, 369-70 (LaVecchia, J., concurring).
While we agree with Justice LaVecchia's analysis, we do not here rule that N.J.R.E. 804(b)(9), which was not effective at the time of trial, can be applied in this case. However, in the event of a retrial, it is clear that the Rule would apply. State v. Rose, 425 N.J. Super. 463, 473 (App. Div. 2012) (holding that N.J.R.E. 804(b)(9) can be applied by a trial court even though the charges involved in the trial arose prior to the Rule's effective date).
Given the overwhelming nature of the State's proofs that defendant murdered Raczek for the specific purpose of preventing him from testifying, it cannot seriously be questioned that, if there were a retrial, the State would be able to demonstrate, by a preponderance of the evidence at a Rule 104 hearing, that defendant engaged in "wrongful conduct directly or indirectly," which caused Raczek's unavailability and that the officers' testimony concerning Raczek's statements was reliable. Byrd, supra, 198 N.J. at 351-52. In these circumstances, where a retrial would obviously lead to the admission of this same evidence, we cannot say it was plain error to allow the officers' testimony concerning Raczek's statements in this case. See State v. Torres, 313 N.J. Super. 129, 155-59 (App. Div.), certif. denied, 156 N.J. 425 (1998) (holding that a court may consider whether the decision on admissibility of evidence on a retrial would be any different in determining whether it was plain error to admit the evidence in the first trial).
Defendant also argues that Detective Wilder should not have been permitted to testify about a conversation he had with a woman who defendant identified as his girlfriend. The following colloquy occurred at trial:
[Prosecutor]: Did you take time to review [defendant's] statement after you returned to the Homicide Squad?
[Wilder]: Yes, I did.
[Prosecutor]: What action, if any, did you take to confirm or refute his version of events?
[Wilder]: He mentioned a girlfriend he met with on the evening of August 31st.
[Prosecutor]: Did you locate her?
[Wilder]: Yes. He identified her during the statement as Sabrina [Bailey] from East
Orange. We located Sabrina Bailey in Newark.
[Prosecutor]: Without saying specifically what she said, did she confirm his version of events that he was with her?
[Defense counsel]: Objection, your Honor.
THE COURT: Overruled.
[Wilder]: No, she did not.
Defendant now contends, relying upon State v. Bankston, 63 N.J. 263 (1973), he was denied a fair trial as a result of Detective Wilder's testimony because this testimony "suggested that the investigating detective possessed information from defendant's girlfriend that implicated defendant in the crimes." We disagree.
In Bankston, our Supreme Court confirmed that the hearsay rule is not violated when a police officer explains that he approached a suspect or went to a crime scene based "upon information received," because such testimony explains his subsequent conduct and shows that the officer was not acting in an arbitrary manner. Id. at 268; accord State v. Luna, 193 N.J. 202, 217 (2007). However, the Bankston Court cautioned that both the hearsay rule and a defendant's Sixth Amendment right to be confronted by the witnesses against him or her are violated if the officer becomes more specific and repeats what another person told the officer linking the defendant to a crime. Bankston, supra, 63 N.J. at 268-69.
According to the Court, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. See also State v. Branch, 182 N.J. 338, 352 (2005) (holding the phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and where use of that phrase does not create an inference that the defendant was implicated in a crime by some unknown person). Nonetheless, erroneous admission of such testimony is not automatic grounds for reversal, but may be assessed under the harmless error standard. Bankston, supra, 63 N.J. at 272-73.
Contrary to defendant's contention, Detective Wilder's testimony did not lead to the inescapable conclusion that Bailey had specifically advised that defendant was involved in criminal activity. Rather, the detective's brief testimony merely indicated the police had followed up on defendant's statement as part of their investigation.
More importantly, even if the judge erred in overruling defendant's objection, defense counsel went on to ask the detective a number of questions about Bailey on cross-examination, including specific questions about whether Bailey was able to corroborate defendant's account that he was with her on the night of the murder. The following colloquy occurred during cross-examination:
[Defense Counsel]: Now, regarding Sabrina Bailey, you did go to her residence, correct?
[Wilder]: No. I did not.
[Defense Counsel]: Mr. Hart went to her residence, Calvin Hart?
[Detective]: I believe he spoke with her, yes.
[Defense Counsel]: And in fact, Ms. Bailey neither confirmed nor denied whether or not [defendant] was there on August 31, correct?
[Wilder]: She recalled a different date.
[Defense Counsel]: But she said she wasn't sure, isn't that correct?
[Wilder]: Correct.
[Defense Counsel]: She said, in fact, she works long hours and her days run together, isn't that so?
[Wilder]: Yes.
[Defense Counsel]: So, when - - as a result of speaking with her, it is pretty much inconclusive, correct?
[Wilder]: Yes.
[Defense Counsel]: Because she really didn't remember, correct?
[Wilder]: Correct.
Thus, whatever prejudice was caused to defendant by the State's very limited questioning of Wilder on this topic was more than ameliorated by defense counsel's pointed cross-examination, which elicited that Bailey was not sure whether defendant was with her that evening. Therefore, any error in admitting Wilder's testimony was harmless.
III.
Defendant next argues, again for the first time on appeal, that the identification procedure used by Detective Armstrong during Raczek's examination of the photo array was "impermissibly suggestive." He also asserts the judge's instructions to the jury "regarding the out-of-court identification procedure were insufficient" because they did not comply with the requirements recently established by our Supreme Court in State v. Henderson, 208 N.J. 208 (2011). We reject both contentions.
The two-step analysis for determining the admissibility of eyewitness identification set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), was adopted in New Jersey in State v. Madison, 109 N.J. 223 (1988).
[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.As the Court noted, "reliability is the linchpin in determining the admissibility of identification testimony[.]" Ibid. (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
[Id. at 232 (citations omitted).]
Defendant did not challenge the identification procedure used by Detective Armstrong before or during the trial. Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, Macon, supra, 57 N.J. at 337-39, we generally decline to consider issues that were not presented at trial. Neider v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). "Because the issue [of the alleged suggestibility of the identification procedure] never was raised before the trial court, because its factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." State v. Robinson, 200 N.J. 1, 18-19 (2009).
However, even if we consider that issue here, we perceive nothing in the record to suggest the identification procedure used by Detective Armstrong was in any way suggestive. The detective did not select the six photos that were included in the photo array. The array consisted of the "faces of black males with similar features" and each man had dreadlocks. Prior to showing the photos to Raczek one at a time, Detective Armstrong provided him with written instructions on how the array would be conducted. Raczek was informed that the person who committed the crime may or may not be in the group of photos; certain aspects of appearances, such as hairstyles and facial hair, are easily changed; and the detective would not provide any feedback on Raczek's selection because he did not know the identity of the suspect.
After examining each photo, Raczek made a positive, indeed visceral, identification of defendant as the person who had carjacked his vehicle. There is simply nothing in the procedure that was used to support defendant's contention that it was suggestive or unreliable.
Defendant nevertheless argues the procedure must have been suggestive because Raczek did not identify defendant as the result of examining photos immediately after the carjacking. However, defendant's photo was not shown to Raczek on the day of the carjacking. The fact he did not select a suspect from one of the photos shown to him on that date, therefore, bolsters his subsequent identification of defendant.
Raczek told Detective Armstrong the person who took his car was wearing all black, including a black jacket. Defendant complains that he was the only person in the photo array who was depicted wearing a black "hoodie." However, he did not demonstrate at trial that there was anything suggestive about the clothing he wore in the photograph that would have made Raczek's identification unreliable.
Finally, there is no basis for defendant's contention that Detective Armstrong did not properly document the results of the identification procedure. The detective had Raczek sign and date the photo he selected as the suspect. He followed up by completing a Supplementary Investigation Report, which detailed the identification procedure.
Defendant's related contention, that the judge erred by not instructing the jury in accordance with the new identification procedures recently developed by our Supreme Court in Henderson also lacks merit. On August 24, 2011, the Supreme Court revised the rules governing out-of-court identification in Henderson, supra, 208 N.J. at 218-20. However, the Court specifically held that these "revised principles . . . will apply purely prospectively." Id. at 302. Thus, the Henderson procedures do not apply here because defendant was tried over a year before Henderson was decided and the decision is not retroactive.
Here, the trial judge followed the Model Jury Charge for "Identification: In-Court and Out-of-Court Identifications" (2007), which were the model instructions in effect at the time of defendant's trial. Defendant raised no objection to the judge's instructions at trial and, therefore, the plain error standard again applies. R. 2:10-2. Because the judge's instructions on identification were in strict accord with the Model Jury Charge, we perceive no error, much less plain error, in the "[a]ppropriate and proper charge[]" provided to the jury on this issue. State v. Green, 86 N.J. 281, 287 (1981).
IV.
Defendant asserts the trial judge erred by denying his request to cross-examine Rivera about his prior and unrelated arrests or to introduce information concerning these arrests through other State witnesses. We disagree.
During defense counsel's cross-examination of Rivera, the following exchange occurred:
[Defense Counsel]: So your decision at a later date to call [the police] and give them information was to make sure that you weren't going to get charged, correct?At that point, the prosecutor's objection was sustained by the judge. Defense counsel conceded Rivera had not been convicted of any prior homicide. Indeed, one of the arrests to which defense counsel wanted to refer concerned a matter where Rivera had been acquitted of the charge after a trial. After sustaining the prosecutor's objection, the judge gave the jury a curative instruction to disregard defense counsel's question.
[Rivera]: Yes.
[Defense Counsel]: And in fact, when you did speak to [the police] on March 3rd, you said you wanted immunity from prosecution?
[Rivera]: Yes.
[Defense Counsel]: Because you didn't want to get charged with a homicide?
[Rivera]: Because just being with somebody you can get charged.
[Defense Counsel]: And you know what it is like to be charged with a homicide don't you?
Later, defense counsel attempted to ask Detective Stambuli whether he was aware from his meetings with Rivera that he had been recently arrested. The judge conducted a Rule 104 hearing which established that Rivera had been cooperating with the Drug Enforcement Agency (DEA) in an ongoing investigation that was not related to the present matter. The judge ruled defense counsel could ask the detective whether he was aware of Rivera's cooperation with the DEA, but prohibited him from asking whether Rivera had been arrested.
Contrary to defendant's contentions, the judge's rulings were entirely proper. N.J.R.E. 609 permits impeachment of a witness' credibility with evidence of "the witness' conviction of a crime[.]" (Emphasis added). Thus, the witness's prior arrests may not be used for this purpose. State v. Jenkins, 299 N.J. Super. 61, 72 (App. Div. 1997) (noting N.J.R.E. 609 "applies only to criminal convictions."). In addition, defendant provided no evidence that any of Rivera's arrests were in any way related to the events involved in this case. Thus, the judge did not abuse his discretion in prohibiting defense counsel from pursuing this line of questioning.
In addition, defendant was permitted to introduce evidence of Rivera's prior convictions in an attempt to impeach him. Defendant complains the judge "only" instructed the jury that "[t]his evidence may only be used in determining the credibility or believability of" this witness. For the first time on appeal, defendant argues the judge should have also given the jury the Model Jury Charge for "Testimony of a Cooperating Co-Defendant or Witness" (2006), based upon his allegation Rivera was only testifying against him in the hope of getting favorable treatment for himself. We disagree.
Generally, a defendant has a right, upon request, to a specific cautionary instruction that a witness' testimony must "'be carefully scrutinized and assessed in the context of this specific interest in the proceeding.'" State v. Begyn, 34 N.J. 35, 54 (1961) (citation omitted). However, the charge carries "risks for the defendant because phrasing is difficult to avoid conveying to the jury an impression that the court is suggesting his guilt solely because the witnesses have admitted theirs and implicated him." Id. at 55. Thus, the Supreme Court has held that it is "[c]ertainly . . . not error, let alone plain error, for a trial judge to fail to give this cautionary comment where it has not been requested." State v. Artis, 57 N.J. 24, 33 (1970).
Here, defense counsel did not request a cooperating witness instruction and, therefore, the judge did not err in failing to provide such an instruction to the jury. In addition, the judge instructed the jury it could consider, in determining a witness' credibility, whether the witness had an "interest in the outcome of the trial," as well as any "possible bias" in favor of the side for whom the witness testified[.]" Therefore, we reject defendant's argument on this point.
V.
Defendant next argues that the trial judge improperly responded to one of the questions the jury posed during its deliberations. The jury asked, "what's a pre-[a]rraignment?" The judge then explained the pre-arraignment process to the jury and placed it in context by also explaining the process leading up to the pre-arraignment conference. The judge instructed the jury as follows:
[L]et me give you a little context.
When the police arrest and charge an individual with an offense, they fill out a complaint, they sign that complaint. That complaint in and of itself under our Constitution is insufficient to institute a prosecution for any crime that carries a term of imprisonment more [than] one year.
If the crime that they're charging you with carries a potential sentence of more than one year, you have a [c]onstitutional [r]ight as a citizen of this State to have the matter presented to the Grand Jury before you can be prosecuted for that offense.
The Grand Jury serves as a buffer between the citizens of this State and the law enforcement mechanism of the State. The law enforcement officers are required to present evidence to the Grand Jury to establish two things, by a standard of probable cause which is far different than proof beyond a reasonable doubt as I have explained to you.
They must establish two things in the Grand Jury.
First, that the crime was committed.
Second, that there is probable cause to believe that the [d]efendant is the one who committed it, the person they charged.
If they can't do that, if the Grand Jurors are not satisfied that there's probable cause to believe one of both of those things exist, then they refuse to return an indictment. If they refuse to return an indictment, the case is over. It's done. There is no charge any longer against that citizen.
On the other hand, if they are satisfied the State [has] presented evidence that convinced them it [has] probable cause to believe a crime was committed and the Defendant is the one who committed it, they return an indictment. That's a formal charging document.
The first time in our system as it is structured today, the first time a defendant is actually given a copy of that indictment, which he has a constitutional right to, is at what we call a [p[re-[a]rraignment Conference.
Prior to his appearing before a judge, there is a required court proceeding that he must attend. If he fails to attend, a warrant is issued for his arrest. He gets put in jail. It is mandatory. You have to be there.
You're given a copy of the [i]ndictment, along with what we call [d]iscovery . . . It's basically this is the evidence we have. Here's the formal charging document. We also find out some ministerial things, are you represented by a lawyer.
If so, what's his or her name, okay. You now have to formally acknowledge receipt of the complaint, of the [d]iscovery, things like that. We try to get all the preliminaries out of the way because the actual first step before a judge is called the [a]rraignment.
So, the pre-Arraignment comes first. You get all your materials. We get things out of the way. We explain certain programs the [c]ourt runs and things like that to a defendant that would otherwise take up a lot of time before the Judge. So, he gets all of that in advance of the [a]rraignment, okay.
Then, at the [a]rraignment, that is the first formal proceeding before a court, but right from the return of the [i]ndictment, the case is scheduled for disposition. There are a lot of preliminary matters that take place before we actually get together in a sitting like this, pick a jury and have a trial. It is all part of that same process.
Does that explain it to you, ma'am? Everybody understand what it means.
Jurors: Yes.
The Court: It is just a preliminary proceeding. It is required. It is mandatory, okay.
[(Emphasis added).]
Even though defendant did not object to the judge's instruction at trial, defendant argues "the judge's response to the jury unfairly prejudiced defendant because it elevated the grand jury's return of the indictment in a manner that tended to lessen the State's burden of proof at trial." We disagree.
We perceive no error, much less plain error, in the judge's response to the jury. The information he provided, that an indictment is issued on probable cause, rather than proof beyond a reasonable doubt, was correct and in no way "lessen[ed] the State's burden of proof at trial." In his main charge, which was given to the jury earlier in the day, the judge also specifically told the jury that
[t]he [i]ndictment is not evidence of the [d]efendant's guilt on the charges. An indictment is a step in the procedure to bring the matter before the [c]ourt and jury for the jury's ultimate determination as to whether the [d]efendant is guilty or not guilty of the charges stated in it.
. . . .
The [d]efendant on trial is presumed to be innocent and unless each and every essential element of an offense charged is proved beyond a reasonable doubt, the [d]efendant must be found not guilty of that charge.
The burden of proving each element of the charges beyond a reasonable doubt rests upon the State and that burden never shifts to the [d]efendant. The [d]efendant in a criminal case has no obligation or duty to provide or to prove . . . his innocence or to offer any proof relating to his innocence.
We will presume the jury adhered to the judge's clear, accurate response to the jury's question and all of his other instructions throughout the trial. State v. Muhammad, 145 N.J. 23, 52 (1996). We therefore reject defendant's contention on this point.
VI.
Defendant also contends he was denied the effective assistance of counsel and points to six instances of alleged deficient attorney performance that supposedly prejudiced the outcome of his trial. Because such claims involve allegations and evidence that lie outside the trial record, they are better suited for post-conviction review, to which we defer, and therefore decline to entertain them on this direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).
VII.
The arguments raised in defendant's supplemental brief largely parrot the points raised by his appellate counsel. Defendant's supplemental contentions are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).
VIII.
Defendant argues the judge erred in denying his request for an adjournment of his sentencing. Defense counsel advised the judge he had been "able to communicate with the [d]efendant" prior to the sentencing. However, defense counsel told the judge his client was "in a virtually catatonic state" and counsel had not been able to talk to him that day. This argument lacks merit.
"[A] motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury." State v. Hayes, 2 05 N.J. 522, 537 (2011) (citation omitted). Here, the sentencing had been adjourned once before because defendant claimed he was ill. To ensure defendant was able to attend and participate in the sentencing proceeding on the next scheduled date, the judge arranged for defendant to be examined by medical staff that morning at the jail and he was "medically cleared for sentencing." The judge therefore concluded defendant's "behavior here is feigned" and there was "no reason whatsoever to delay his sentence[.]" Under these circumstances, we perceive no abuse of discretion in the judge's reasoned decision to deny defendant's second adjournment request.
Defendant next argues his sentence was excessive. In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 234, 365 (1984). We are satisfied the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law, including the judge's fully-supported decision to impose consecutive sentences, do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.
Finally, defendant argues he was not convicted of either count five (aggravated assault, serious bodily injury) or count six (possession of a weapon for an unlawful purpose) and the judgment of conviction should be corrected to reflect this. Defendant improperly raises this contention in a footnote and, therefore, we are not required to consider it. See Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998) (in which the court refused to consider issues so raised).
However, we do believe the judgment of conviction should be corrected to clearly indicate that defendant was not convicted of aggravated assault, serious bodily injury, of Lawrence Herring, as charged in count five of the indictment. This offense, although charged in the indictment, was essentially a lesser-included offense of count four, the attempted murder of Herring. Thus, question four of the verdict sheet, which asked the jury to determine whether defendant was guilty or not guilty of attempted murder, instructed the jury not to answer question five, dealing with the aggravated assault charge set forth in count five, if it found defendant guilty of attempted murder. Thus, the jury made no determination as to count five of the indictment.
The State agrees "[t]he jury did not reach count five, charging aggravated assault of Lawrence Herring, because it found defendant guilty of the attempted murder of Herring."
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Nevertheless, the judgment of conviction incorrectly lists count five as one of the "final charges" and states it merged into defendant's conviction for attempted murder under count four. A remand is therefore necessary to accurately reflect the jury's disposition of this charge.
We reject defendant's contention that he was not convicted of count six, which charged him with possessing a weapon for an unlawful purpose in connection with the attempted murder of Herring. Defendant apparently fails to recognize that the numbers of the questions on the verdict sheet do not correspond to the numbers for the charges listed in the indictment. Question six on the verdict sheet concerned a lesser-included aggravated assault, bodily injury with a deadly weapon, charge that was not included in the indictment. Thus, when the jury found defendant guilty of Herring's attempted murder, it properly skipped this question.
Contrary to defendant's contention, the verdict sheet clearly indicates the jury found him guilty of possessing a weapon for an unlawful purpose as charged in count six and the judgment of conviction accurately reflects that this count merged into the attempted murder conviction. Therefore, no correction is necessary concerning count six.
Affirmed in part and remanded only to correct the judgment of conviction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION