Opinion
DOCKET NO. A-1169-13T2
02-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM PITTMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-09-1271. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his conviction for fourth-degree peering, N.J.S.A. 2C:18-3c. We affirm.
I.
We discern the following facts from the evidence adduced at the jury trial. On April 7, 2010, at approximately 11:00 p.m., E.G. and his girlfriend, E.M., were sitting outside on the back porch of E.G.'s home. They observed a man in an abutting yard looking into the neighbor's window. They watched the man for a few minutes as he repeatedly paced about the backyard and looked into the neighbor's window. E.G. phoned the police and reported what he saw. An officer arrived and spoke briefly to E.G. and E.M. The officer entered the yard where the man had been reported to be, and turned on his flashlight. After hearing a noise on the right side of the house, the officer ran around the left side of the house where he encountered defendant in the front lawn.
We use initials to protect the privacy of the witnesses.
The officer directed defendant to place his hands on the front of a vehicle. A police sergeant came to E.G.'s house to ask whether either E.G. or E.M. could identify the man they saw looking into the neighbor's window. Both said they could and described the actor as tall, wearing mostly black, with a silver stripe on his shirt. The witnesses said that they watched the man for ten to fifteen minutes as he repeatedly looked into the neighbor's lit window. The sergeant directed E.G. and E.M. into his patrol car, and drove them around the corner for a show-up identification. Upon seeing defendant, E.G. asked to see if the man had a silver stripe on the side of his shirt, which he did. Both E.G and E.M identified defendant.
A grand jury indicted defendant for fourth-degree peering, in violation of N.J.S.A. 2C:18-3c. Defendant filed a motion to exclude the out-of-court and in-court identifications by the witnesses. The motion judge denied the application after conducting a hearing, finding that was nothing impermissibly suggestive about the show-up procedure the police employed.
Defendant was tried before a jury in May 2012. At trial, E.G. and E.M. identified defendant as the man they saw looking into the neighbor's window. Defendant's prior convictions were admitted into evidence for purposes of impeaching defendant's credibility, over defendant's objection. The jury found defendant guilty, and on August 30, 2012, defendant was sentenced to eighteen months of incarceration.
On appeal, defendant argues the following:
POINT I
THE OUT-OF-COURT SHOW-UP IDENTIFICATIONS OF DEFENDANT AND THE SUBSEQUENT IN-COURT IDENTIFICATIONS OF DEFENDANT SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ADMITTING PROOF OF DEFENDANT'S 2004 AND 2005 CRIMINAL CONVICTIONS TO IMPEACH HIS CREDIBILITY BECAUSE THE EVIDENCE PREJUDICED THE JURY AGAINST DEFENDANT AND UNDERMINED DEFENDANT'S RIGHT TO A FAIR TRIAL, AND BECAUSE THE PROBATIVE VALUE OF THE EVIDENCE WAS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICE.
POINT III
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON "MERE PRESENCE" WAS PLAIN ERROR (NOT RAISED BELOW).
POINT IV
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL IMPROPRIETY IN SUMMATION (NOT RAISED BELOW).
POINT V
THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).
POINT VI
THE EIGHTEEN[-]MONTH CUSTODIAL TERM IMPOSED ON DEFENDANT'S CONVICTION FOR PEERING WAS MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant argues:
POINT I
THE MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED DUE TO THE MISCARRIAGE OF JUSTICE OF THE PRESENTATION TO THE GRAND JURORS WITHOLDING THE 911 TAPE.
POINT II
DEFENDANT'S CONVICTION SHOULD BE REVERSED [BECAUSE] THE TESTIMONY OF THE WITNESSES CONTRADICT[S] THE FACTS OF THE OFFICER[']S REPORT [AND THE] [9]11 CALL.
POINT III
DEFENDANT ARGUES THAT DURING HIS [TESTIMONY] AT TRIAL THE PROSECUTION WOULD PRESENT FALSE FACTS AS FAR AS, A FENCE BEING THERE ON THE NIGHT OF DEFENDANTS ARREST [NOT RAISED BELOW].
II.
We begin by addressing defendant's contention that the judge erred by denying his motion to suppress the witnesses' out-of-court identifications. When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "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). The trial court's legal conclusions 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).
The admissibility of an out-of-court show-up identification hinges on a two-step analysis which determines whether 1) "the identification procedure was impermissibly suggestive," and 2) "if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). "The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Id. at 504.
While a show-up with only one suspect in police custody is inherently suggestive, a show-up, standing alone, is not so impermissibly suggestive as to require examination of the second step of the admissibility analysis. Ibid.. On and near-the-scene identifications are often admissible because they are likely to be accurate, take place before memory fades, enable quick police action, and minimize or avoid entirely embarrassment and inconvenience to the innocent. Ibid.
Even when a show-up procedure is impermissibly suggestive, the identification may be sufficiently reliable to merit admissibility. Id. at 506. Courts consider "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. at 507 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). The risk of misidentification in a show-up is not heightened if "conducted immediately after the witnessed event, ideally within two hours because the benefits of a fresh memory seem to balance the risks of undue suggestion." State v. Henderson, 208 N.J. 208, 259 (2011) (internal quotations omitted). "[S]howup administrators should instruct witnesses that the person they are about to view may or may not be the culprit and that they should not feel compelled to make an identification." Id. at 261.
The State contends that Henderson, decided in summer 2012, does not apply in this case, which had an evidentiary hearing and trial earlier the same year. We need not address this argument, as we conclude the show-up identification here was neither impermissibly suggestive nor unreliable, despite the absence of such an instruction.
Applying these standards we see no error and disagree with defendant's assertions that the show-up was impermissibly suggestive. We conclude that there was sufficient credible evidence in the record to support the judge's finding that the identification was reliable, and that defendant failed to meet his burden of demonstrating a substantial likelihood of irreparable misidentification. The motion judge conducted a hearing and determined that the show-up was not impermissibly suggestive. The witnesses had a clear view of defendant for ten to fifteen minutes and were able to identify the clothing he was wearing. They gave a description to the police shortly before seeing defendant and identified him immediately, checking to be sure that the clothing matched what they had previously observed. Moreover, because we do not consider the out-of-court identification to have been error, we perceive no collateral error in the identifications made by the witnesses at trial.
III.
We reject defendant's contention that the trial court improperly admitted evidence of defendant's prior convictions for impeachment purposes. A previous criminal conviction is admissible to impeach the credibility of a witness in a criminal case. N.J.R.E. 609. Trial judges have broad discretion to admit evidence of prior criminal convictions. State v. Sands, 76 N.J. 127, 144 (1978), overruled on other grounds by State v. Brunson, 132 N.J. 377 (1993). Additionally, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice . . . ." N.J.R.E. 403.
N.J.R.E. 609 was amended after defendant's trial, effective July 1, 2014, to limit impeachment by evidence of past crimes. We apply the rule in effect at the time of trial.
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We reject defendant's argument that the trial court abused its discretion in ruling that his convictions for escape and impersonating a law enforcement officer were admissible to impeach his credibility. Defendant cites no specific facts to show that the judge mistakenly exercised his discretion by admitting his prior criminal convictions for impeachment purposes. The trial court conducted a Sands hearing and determined that only certain convictions in defendant's record could be utilized for impeachment purposes. The trial judge provided an adequate limiting instruction which specifically advised the jury that "the evidence may only be used in determining the credibility or believability of defendant's testimony." The jury is presumed to have followed this instruction. Smith, supra, 212 N.J. at 409. Moreover, defendant does not demonstrate any undue prejudice that outweighs the probative value of the evidence.
IV.
We also reject defendant's argument that the court committed plain error by failing to instruct the jury on "mere presence." An error complained of for the first time on appeal is reversible only when "clearly capable of producing an unjust result." R. 2:10-2. A reviewing court "may infer from the lack of an objection that counsel recognized that the alleged error was of no moment or was a tactical decision to let the error go uncorrected at the trial." State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Defendant erroneously relies on State v. Shipp, 216 N.J. Super. 662 (App. Div. 1987), for the proposition that the trial court had a responsibility to instruct the jury that it was not to infer that defendant was guilty based only on his "mere presence" in the area. Shipp explained how "criminal possession may not be inferred from defendant's mere presence at the location where the contraband was found." Id. at 665. Shipp does not stand for the proposition that a court must instruct a jury that a defendant's presence at the scene of a crime, such as peering, is not sufficient evidence to convict. Additionally, the jury in this case was presented with more evidence of the defendant's guilt than his "mere presence" at the scene of the crime and was properly instructed as to the elements of peering.
V.
We reject defendant's contention that the prosecutor deprived him of a fair trial by purportedly vouching for the truthfulness of the State's witnesses during summation. To determine whether a prosecutor's comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).
"A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (citations omitted), certif. denied, 182 N.J. 148 (2004). A prosecutor's remarks must be viewed in the context of trial, and examined to determine whether they are an "invited response" to defense counsel's arguments. United States v. Young, 470 U.S. 1, 12-13, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 10-11 (1985); see also State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (indicating that "the issue is not the State's license to make improper arguments, but whether the prosecutor's invited response, taken in context, unfairly prejudiced defendants"), certif. denied, 130 N.J. 393 (1991).
Under this standard we conclude that the prosecutor's comments were not so improper or egregious as to deprive defendant of a fair trial. The prosecutor's comments that the sergeant and the victim were truthful was an invited response to defendant's arguments that the police and witnesses conspired against him. Moreover, defendant did not object to these comments at trial, and, applying these principles, we do not perceive these unchallenged errors to be clearly capable of producing an unjust result. R. 2:10-2.
VI.
We conclude reversal is unwarranted on the ground of cumulative effect. The cumulative effect of trial errors which individually do not require reversal may, when considered together, cast a significant doubt upon a verdict and necessitate its reversal. See State v. Jenewicz, 193 N.J. 440, 473 (2008), certif. denied, 217 N.J. 304 (2014). Here, there were no errors made in admitting the pre-trial identifications and the prior convictions for impeachment purposes, failing to instruct on "mere presence," or in the prosecutor's comments.
VII.
We reject defendant's argument that the eighteen-month sentence was manifestly excessive because the sentencing court did not properly recognize mitigating factor one, N.J.S.A. 2C:44-1b(1) ("defendant's conduct neither caused nor threatened serious harm"), and because the court showed biased against defendant by relying on an improper report.
Defendant finished serving his sentence in August 2013. Therefore, his argument is moot. "Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010); see also State v. Hughes, 230 N.J. Super. 223, 226 (App. Div. 1989) (dismissing appeal as moot because defendant had already served his prison term). Defendant raises no challenge beyond the length of his completed sentence and demonstrates no collateral consequences subject to redress.
Last, we conclude that defendant's arguments raised in his supplemental brief are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION