Opinion
DOCKET NO. A-0575-11T4 DOCKET NO. A-3645-11T4
05-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSHUA ROBINSON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARQUIS BAKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Joshua Robinson (Michael C. Kazer, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Marquis Baker (Frank M. Gennaro, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in A-0575-11 (John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in A-3645-11 (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-03-00697.
Joseph E. Krakora, Public Defender, attorney for appellant Joshua Robinson (Michael C. Kazer, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Marquis Baker (Frank M. Gennaro, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in A-0575-11 (John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in A-3645-11 (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendants Joshua Robinson and Marquis Baker appeal their convictions for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1). The jury acquitted defendants of first-degree robbery, N.J.S.A. 2C:15-1.
We address both defendants' appeals in one opinion for convenience.
At Robinson's subsequent sentencing, the court granted his motion for a judgment of acquittal n.o.v. as to a charge of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, citing to our holding in State v. Turner, 310 N.J. Super. 423, 432-34 (App. Div. 1998). At Baker's later sentencing, the State consented to the dismissal of that charge.
The charges stemmed from an armed robbery on the evening of September 1, 2009, on North Thirteenth Avenue in Newark. The victim was confronted by (at least) four men in a white Jeep. One of its passengers, concealed under a hoodie and bandana, robbed the victim at gunpoint, taking her cell phone and purse.
The victim later reported the incident to the police, and used a tracking program on her cell phone to determine its location. Based on the information provided, the police were led to the Pennington Court housing units in Newark. There, they found a white Jeep matching the victim's description, and arrested its five occupants, including defendants. The police also recovered the victim's purse and cell phone, a shotgun, and a bandana, among other items. Less than an hour elapsed between robbery and arrest.
On March 16, 2010, a grand jury returned an indictment charging defendants with the above-noted offenses. Following their trial and convictions, the court sentenced Robinson to an aggregate term of seven years imprisonment, subject to a parole ineligibility period of eighty-five percent of his term under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court later sentenced Baker to an aggregate term of eight years imprisonment, also subject to NERA.
Also charged and tried on all counts was co-defendant Brandon Black. He is not a subject of this appeal.
Robinson now appeals his conviction, arguing that:
POINT I
THE DEFENDANT'S CONVICTION FOR CONSPIRACY TO COMMIT ROBBERY ON COUNT ONE SHOULD BE REVERSED BECAUSE THE JURY WAS ABLE TO CONVICT HIM ON THAT COUNT BASED ON ERRONEOUS INSTRUCTIONS ON ACCOMPLICE LIABILITY (NOT RAISED BELOW).
POINT II
DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNT ONE CHARGING CONSPIRACY TO COMMIT ROBBERY SHOULD HAVE BEEN GRANTED.
POINT III
THE DEFENDANT'S RIGHT TO HAVE THE JURY FAIRLY ASSESS THE EVIDENCE WAS PREJUDICED BY THE "BLUEBERRY PIE" TYPE OF CIRCUMSTANCIAL EVIDENCE JURY INSTRUCTION (NOT RAISED BELOW).
POINT IV
THE 7 YEAR BASE TERM IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
Baker appeals his conviction, arguing that:
POINT ONE
THE TRIAL JUDGE MADE IMPROPER COMMENTS DURING JURY SELECTION.
POINT TWO
THE PROSECUTOR'S IMPROPER CONDUCT DENIED DEFENDANT A FAIR TRIAL.
POINT THREE
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
POINT FOUR
THE SENTENCE OF EIGHT YEARS SUBJECT TO THE NO EARLY RELEASE ACT WAS EXCESSIVE AND THE APPLICATION OF THE NO EARLY RELEASE ACT TO THE WEAPONS CHARGE WAS AN ILLEGAL SENTENCE.
We have carefully considered all of these contentions in light of the record and the applicable law, and we now affirm.
I.
At about 8:20 p.m. on September 1, 2009, Maxine Ragland was returning home from a park, walking along North Thirteenth Avenue in Newark. A white Jeep Cherokee pulled up to the curb beside her. She turned to see a shotgun pointed at her, protruding from the rear passenger-side seat window. The man holding the gun then exited the car, still directing it toward her, and demanded her purse and cell phone. Ragland complied.
She testified that the gunman was wearing a burgundy or gray hoodie, and a bandana covering his face. She could not see his face or his eyes, and remarked that, "I didn't know how he could see me." The gunman left the door open when he emerged from the vehicle, so she could "make out" at least four figures inside:
The sole defense witness was Detective Luis Velez, who was a patrol officer on the day of the crime. Velez met with the victim when she revisited the scene, and authored the incident report. At trial, he read from the report to refresh his recollection of Ragland's description of the gunman: "His hands were observed and described as dark skinned hands." However, Ragland had previously testified that she had not provided details about the color of the gunman's hands to the officers.
I was on the side? So I know it was a driver, a passenger, the person with the gun and someone on the — directly on the side of 'em. I could only see their — their shadow. I couldn't see all of them.
After the men drove away, Ragland rushed to her home about six blocks away. She estimates that she reached her home within seven minutes. Once there, she recounted the incident to her then-boyfriend, Anwar Brown. They called the police, who arrived in about ten minutes. Ragland reported the incident to the police, and then returned with them to the scene of the crime. Once they arrived, Ragland remembered that she had a "locator" on her phone, She told the police about the locator, and called her boyfriend to tell him to activate the feature and track the phone. Brown did so, and reported the information to Ragland, who in turn told the police. The phone was tracked to a location which turned out to be the Pennington Court housing units in Newark.
Based on that information, at about 8:50 p.m., Officers Frank McCall and Pedro Oliveira, and Sergeant Vitiello, were advised of the robbery over police radio. They were given a description of the vehicle and the location of the phone. They were also told that the suspects were armed. The officers then proceeded to Pennington Court, a four building complex surrounding a courtyard, a basketball court, and a playground at the center. According to McCall,
At first, we didn't observe anything. We started canvassing the area, looking for this ah, vehicle in question. Umm, as we got to the far backhand corner on the right, we noticed the vehicle in question umm turning around, coming towards us; like, they were basically making a U-turn in the cove area of the unit.
The officers exited their patrol car, guns drawn, and under the cover of the car doors. They ordered the passengers to get out of the vehicle with their hands raised. Five occupants exited the vehicle and complied, and the officers patted them down and placed them under arrest. According to McCall, Baker exited the driver's seat, Robinson exited the front passenger-side seat, and Black exited the rear passenger-side seat.
The officers took cover because of the dispatch warning that the suspects were armed.
Once the individuals were in custody, McCall "walked around the vehicle" and "[t]hrough the back window, . . . noticed a shotgun in the back — on the back deck of the vehicle, which is the rear hatch area." He opened the hatch, and found a loaded shotgun. After a further search, the police recovered a black bandana from the rear seat, Robinson's wallet from the driver's seat, and Ragland's purse, which was missing some of its original contents. Following a "pat down," the police also recovered Ragland's phone from Black. The recovered evidence was "bagged and tagged" and the arrestees were then taken to the local precinct to be photographed and "processed."
Ragland was taken to the precinct following the arrest. She estimated that forty-five minutes had elapsed from the robbery to the time she was brought into the precinct. They had previously placed the recovered cell phone on a desk in another room. Officers told Ragland to call her cell phone number. The cell phone rang in the other room and was thereby confirmed as Ragland's.
Ragland was also shown photographs of the shotgun and the bandana, and identified both as the ones used in the robbery. As previously noted, she initially told police that there were four individuals in the car, from what she could see. However, after hearing about the arrest and being taken to the police department, she told the police that there were five people "because . . . that's what I heard." She then clarified that she initially told the police that there were four people, but that there could have been a fifth.
The defendants' trial took place from April 6 to May 2, 2011 before a jury.
II.
A.
During jury selection, defendants' counsel took issue with one of the judge's comments to a potential juror, made in the presence of the entire venire. While interviewing the juror, the judge attempted to clarify question twenty-seven on the juror questionnaire:
We assume that the question asked is the one the court originally read to the jury as question 28 on April 6, 2011:
Twenty-eight: How do you feel about testimony of law enforcement officers as opposed to testimony by other witnesses who are not law enforcement officers? For example, do you think a law enforcement officer is more likely, less likely, or as likely to tell the truth as a witness who is not in law enforcement? What makes you feel the way you do about this?
JUROR: Okay. Umm, I feel that the testimony of a law enforcement officer would be based more on facts.
THE COURT: Well, the question is more likely, less likely, or as likely to tell the truth. Let me see if I can explain that before you go on. Listen to the question — this is how that goes. Everybody who takes the witness stand, before they testify? Takes an oath to tell the truth. You with me so far?
JUROR: Yes.
THE COURT: It doesn't matter whether it's a police officer, a civilian; everybody takes the oath to tell the truth. Right?
JUROR: Yes.
THE COURT: Nobody would disagree with the proposition that everybody who takes an oath to tell the truth, whether they're a police officer or a civilian, should honor that oath and tell the truth. Wouldn't you agree?
JUROR: Yes.
THE COURT: The question is this: The way you look at the world, you think police officers are more likely to tell the truth, just because they're cops? Or maybe you think that because they're cops, they're less likely to tell the truth. Or maybe you think that everybody's a human being and everybody — nobody's got a lock
on telling the truth or not, it depends on their — on their profession. That's really what it comes down to.
Wouldn't you agree, [Baker's Counsel]?
[BAKER'S COUNSEL]: Your Honor, may I be heard at side bar please?
THE COURT: Sure.
Baker's counsel objected to being "put on the spot" by the judge, and moved for a mistrial. As he stated, "I understand the court's position, you just want us to answer whether a question's proper or not." However, he thought it would be inappropriate to respond to the question in front of the potential jurors. Furthermore, he argued,
I don't think there's a curative instruction that could be had to ease the situation. I just feel I'm in a difficult situation being the first one to ask for a situation and now I asked for side bar; the jury's gonna ask why would he have a problem with that question
According to Robinson's counsel, the judge had also indicated that "truthfulness" was based on one's profession, and Black's counsel said that he heard the same. The court responded:
I suggested that their willingness to tell the truth would not be dependent on their profession. Perhaps you heard that wrong or perhaps I misspoke it. Obviously, if that's what you heard, I misspoke it.
The court denied the mistrial, and provided a curative instruction:
Ladies and gentlemen, I may have misspoke. I don't think I did, but counsel always had a duty — if I misspeak, counsel should let me know so I can correct something I said. If I said this — what I was suggesting to the perspective juror, and everybody else, that perhaps it's not a person's profession that dictates whether or not they're likely to follow the oath; but it's a matter of their own personal integrity.
So, the question is if anybody puts police officers in a different way than everybody else in terms of their — their following through with the oath. So, that's the question. If I misstated it, I didn't mean to.
B.
Baker argues that the judge's "improper comments" during jury selection violated his Sixth Amendment right to a fair trial. We disagree.
"It is axiomatic that an impartial jury is a necessary condition to a fair trial." State v. Papasavvas, 163 N.J. 565, 584 (2000). We therefore rely on voir dire to expose any potential and latent bias amongst jurors. Ibid. "The obligation to impanel an impartial jury lies in the first instance with the trial judge," who is accorded broad discretion in asking questions. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S. Ct. 1629, 1634-35, 68 L. Ed. 2d 22, 29 (1981). To this end, the judge "shall interrogate prospective jurors," while "[t]he parties or their attorneys may supplement the court's interrogation in its discretion." R. 1:8-3. This "policing" of the voir dire process serves "to restore the fundamental basis for preliminary questioning, i.e., an expedient selection of a fair and impartial jury; but also to eliminate "the impression . . . that the aim of counsel is . . . the selection of a jury [that is] favorable to the party's point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish." State v. Manley, 54 N.J. 259, 280-81 (1969).
However, judges must avoid making improper comments:
[A]n unwarranted comment by the judge can be as prejudicial, or more harmful, than one by the prosecutor. After all, the judge is a "neutral magistrate," and not a mere adversary making a presentation to the jury. The jury looks to the judge for guidance and advice and for instructions as to the law.
[State v. Meneses, 219 N.J. Super. 483, 488 (App. Div. 1987), certif. denied, 110 N.J. 156 (1988).]
Nonetheless, a potentially harmful comment may be addressed by curative instructions, and "[t]here can be no assumption that the jury did not faithfully follow the admonition." Manley, supra, 54 N.J. at 271.
We review voir dire proceedings for abuse of discretion, the exercise of which "will ordinarily not be disturbed on appeal." Papasavvas, supra, 163 N.J. at 585 (quoting State v. Jackson, 43 N.J. 148, 160 (1964), cert. denied sub. nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)). In making our determination, we consider the trial record as a whole and ignore harmless errors — including constitutional violations. United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 1980, 76 L. Ed. 2d 96, 106 (1983); see R. 2:10-2.
We also defer to the trial court's actions in determining the effectiveness of curative instructions. State v. Winter, 96 N.J. 640, 647 (1984) (citing State v. Macon, 57 N.J. 325, 335 (1971)). Our inquiry "focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Ibid. "The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid.
In this case, Baker challenges the judge's comment about whether a juror would assume the credibility or "truthfulness" of police witnesses based on the witness' profession. He also challenges the judge's soliciting input from defendants' counsel, in the presence of all the potential jurors.
First, Baker's argument that the judge's request for confirmation from counsel that the court correctly explained "question 27" somehow prejudiced either defendant is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say that our rules encourage attorneys to participate in this fashion in the court's formulating of voir dire questions, R. 1:8-3(f), and, in any event, the judge properly explained to the jurors that, "counsel [have] a duty — if I misspeak . . . [to] let me know so I can correct something I said." Defendant has made no showing that this instruction failed to adequately remedy any perceived prejudice caused by the judge's inquiry.
Second, the judge's comment about believing people based on their profession was a clear misstatement. Nonetheless, the judge properly addressed his comments in his curative instructions, and Baker offers no proof that the jury did not follow these instructions or that he suffered any prejudice as a result of the judge's comments. Therefore, we find no reason to disturb Baker's conviction based on these grounds.
III.
A.
During the trial, defendants also objected to McCall's and Oliveira's testimony about defendants' locations in the Jeep at the time of their arrest. The issue was first raised during the prosecutor's opening statement, when he described defendants' arrest:
In that vehicle, [the officers] ordered them out. Mr. Baker came out of the driver's seat. Mr. Black came out of the back seat. And Mr. Robinson came out of the front seat —
Baker's counsel objected, arguing that discovery had not been provided, and that they had not been put on notice that the officers would be testifying about defendants' positions in the car. In addition, Robinson's counsel noted that Oliveira had testified to the Grand Jury that he could not recall the locations of the arrestees in the car. The prosecutor responded that, despite his Grand Jury testimony, Oliveira could now testify about defendants' positions after having prepared for the trial and spoken with McCall. He also said he had previously met with the officers to discuss the issue, in preparation for an earlier-scheduled trial date. He did not take any notes of that meeting.
The court asked defendants' counsel if they had attempted to interview the officers themselves. All replied, no. The court then overruled the objection, remarking that "defense has the opportunity to interview all the witnesses since Jump Street." Later, during a break in the trial (and out of the jury's presence), the prosecutor returned to the issue:
Your Honor, I would like to place something on the record. In terms of disclosing something, your Honor, that I believe wasn't disclosed earlier.
During the preparation of these witnesses, umm the police witnesses, ah, in — they — we were talking about who was there in the car, I had showed them arrest photos. Umm, I didn't believe anything was wrong with doing that, given that they were part of the arrest record
and part of the business records of the police officers?
So I'm just placing on the record ah, what happened during the preparation of those witnesses, your Honor. That wasn't disclosed earlier; not realizing it needed to be disclosed, so I wanted to disclose it and make sure the record was clear.
Based on that disclosure, Baker's attorney moved for a mistrial. He argued that the meeting between the prosecutor and the officers constituted an out-of-court identification, subject to State v. Henderson, 208 N.J. 208 (2011), and State v. Delgado, 188 N.J. 48 (2006). He contended that the prosecutor should have provided a record of the identification to defendants' counsel for review or investigation, and that his failure to do so was a "manifest injustice." Robinson's counsel requested a Wade hearing, and further noted that the prosecutor would have to be a witness if they were to investigate the identification. Black's attorney requested to see the photographs that were shown to the officers.
The out-of-court identification procedures required in those cases were later adopted on July 19, 2012 as Rule 3:11. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:11 (2014).
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (holding that a criminal defendant has a Sixth Amendment right to counsel at a lineup held after indictment).
In response, the prosecutor noted that the officers were present that day, and could be questioned off-the-record by defendants' counsel. He said he could also obtain and provide the arrest photographs for defendants' counsel on that day. He argued that the witnesses were identifying the arrestees, and not the perpetrators of the crime. Furthermore, he noted,
[T]hese defendants were arrested in a car 20 minutes after the robbery. The only reason they [the officers] were shown the photos is just a confirmatory, your Honor, so that they — going into the preparation for trial that they — they confirm what they had been telling me earlier. They had some independent recollections as to who was who; this was just a confirmatory process, to make sure that when they testified, they were fully prepped.
The court ruled that there was no discovery violation because the prosecutor confirmed that there were no reports or notes made about the police looking at the arrest photographs, and "[t]he prosecutor has got no obligation to give what he doesn't have." The judge again remarked that defendants' counsel "had all of the opportunity in the world to interview the police." Moreover, he said "it [wa]s unreasonable for the defendants' [sic] to be sitting there thinking that the police officers were not going to be asked: 'Well, where was each defendant sitting in the car when you got there, Officer?'" The court also told the prosecutor to show the arrest photographs he had used to defendants' counsel.
After a break, the judge confirmed that the prosecutor had provided the photographs to defendants' counsel. The judge had also reviewed the Grand Jury testimony during the break, and found it to be immaterial to his ruling. In addition, he confirmed that one of the police witnesses who would be testifying to defendants' locations in the car was not the same witness who testified to the contrary before the Grand Jury.
In the meantime, defendants' counsel had opted not to speak to the officers during the break. The judge noted that there was no rule of evidence to prevent them from speaking to the police witnesses. However, Baker's counsel argued that,
[I]t is neither suggestive nor prudent for us, or me, to have communication with a witness without having an investigator present, for lack of people to: A, report what that witness would say; B, having someone tentatively verify, other than myself, what was recalled or recanted, or suggested or mentioned in that interview; and that was the reason that that was done.
He further noted that he did not learn that the officers would be testifying about defendants' positions until that morning; and that while the officers could be cross-examined, the prosecutor — who was also present at the meeting — could not be. He argued that the circumstances constituted a denial of Baker's Sixth Amendment right to confront evidence, for which "[t]here is no limiting instruction . . . no curative instruction." Co-defendants' counsel joined in these arguments.
The court denied the application for a mistrial, finding that "what has happened here in no way compromises the defendants' right to a fair trial." He also followed up his ruling on the next day:
There's no issue as to who was in that car. The issue is simply where they were seated. There's nothing about that at — from any logical perspective whatsoever that has any connection to a Wade hearing. That is my ruling.
At trial, McCall testified that during the arrest, he approached the driver's side of the Jeep, while Oliveira approached the passenger's side. He identified Baker as exiting the driver's seat, and Robinson as exiting the front passenger seat. McCall also confirmed that he reviewed defendants' arrest photographs before the trial. The photographs were "taken as a matter of course," and had helped refresh his recollection. McCall also confirmed that he had met with the prosecutor "[w]ithin the last couple weeks," and that he did not recall viewing photographs at that time. However, he was able to identify Baker during that meeting.
McCall identified Black as exiting the rear passenger-side seat.
Oliveira also testified that Robinson emerged from the front passenger seat, and Baker from the driver's seat. He confirmed he was unable to recall defendants' placement when he first testified at the Grand Jury proceedings. He said that he reviewed the arrest photographs before his Grand Jury testimony, and that he had only looked at the photographs of the three defendants, as opposed to all five arrestees. Nonetheless, he could not recall their locations in the vehicle at that time. In addition, his arrest report did not contain information about defendants' positions in the vehicle.
He later met with McCall and Vitiello in preparation for the trial, and re-examined defendants' arrest photographs. He confirmed that the photographs were taken during processing, and that defendants' names were included. However, the photographs did not indicate defendants' positions in the vehicle. Oliveira said he could remember defendants' positions after "[d]iscussing it with Officer McCall and Sergeant Vitiello." He said that "i[t] wasn't an actual meeting . . . just a talk and discussion about it in the street." The discussion was not one that the officers would typically document, and it was not held at a set time.
On this point, he was further questioned by Black's counsel:
BLACK'S COUNSEL: So, when you come into this court now before this jury and say Mr. Black was in the rear passenger's seat, you[sic] guessing. Right?
OLIVEIRA: No.
COUNSEL: That comes from information provided to you by who, the prosecutor?
OLIVEIRA: Correct.
COUNSEL: When the prosecutor provide[sic] you with that information (sic)?
OLIVEIRA: About approximately two weeks ago, three weeks ago.
. . . .
COUNSEL: So, how could you rely on [the prosecutor's] information that Brandon Black was in the back?
OLIVEIRA: 'Cause we — I'm sure he discussed it with the other officers and the Sergeant, and we came to see and know where they were sitting at that time.
The court also pressed for clarification:
THE COURT: Are you telling this jury what Vitiello and McCall told you? Where the people were sitting in the car? Or are you telling the jury what you specifically remember as to where people were sitting in the car? Do you understand my question?
OLIVEIRA: Yes.
THE COURT: Okay. Can you answer that, my question, as clearly as I asked it? Tell the jury.
OLIVEIRA: Specifically, by what I recall and what we went over with both officers, to my recollection that I recalled where they were.
Baker's counsel then followed up:
BAKER'S COUNSEL: You just answered a question which seemed multi-faceted, the question. You answered from the Honorable Judge [], he asked you was it a singular form of you remembering? Or a combination of you remembering and a discussion with Vitiello. Correct?
OLIVEIRA: Correct.
COUNSEL: And your answer was a combination of those two things. Correct?
OLIVEIRA: Correct.
Baker's counsel also wanted to know why Oliveira was able to "place" defendants after the second meeting, but not the first:
COUNSEL: . . . . What I'm trying to get at is what was different two or three weeks ago about these photographs on the street corner with the police officers?
OLIVEIRA: We had discussed it, including with each other, where they were and everything came back to where they were seated.
COUNSEL: Well, you had the same information available to you the first time you met. Right?
OLIVEIRA: We didn't go into full discussion of it until like really fully detailed, it was Grand Jury. I didn't —
COUNSEL: But isn't it true the only difference was, is that this second meeting, the prosecutor was present. Correct?
OLIVEIRA: That is correct.
B.
Baker argues that the court should have granted his motion for a mistrial based on the prosecutor's "misconduct" in going over arrest photographs with police witnesses. He alleges that the prosecutor violated his "continuing duty to disclose" information obtained subsequent to the initial provision of discovery. R. 3:13-3(f). He says that the prosecutor should have disclosed that he met with the officers before trial, as the meeting constituted an out-of-court identification. Again, we disagree.
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court," which we will not disturb "absent an abuse of discretion that results in a manifest injustice." State v. Harvey, 151 N.J. 117, 205 (2000). We do not believe the court abused its discretion at all. Rather, it correctly applied the court's rules relating to discovery in criminal actions. Rule 3:13-3(f) provides that "[t]here shall be a continuing duty to provide discovery." Where a party has failed to comply with this rule, the court "may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." Ibid.
Other than the identities of the police officer and the photographs, there was no discovery that the prosecutor was required to produce regarding discussion with the officers. In this case, the prosecutor's meeting with the testifying officers did not constitute newly obtained information subject to discovery rules. He took no notes, and made no reports. The discussion did not result in additional evidence of the crime.
Even though there was no violation, the court sought to address any potential issues by requiring the prosecutor to produce the arrest photographs, and to make the police witnesses available to defendants' counsel. Defendants argue that it did not remedy their perceived violation of their rights. Baker refers to the meeting of the officers and the prosecutor as an out-of-court identification, which is defined as a "confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence[.]" Wade, supra, 388 U.S. at 228, 87 S. Ct. at 1933, 18 L. Ed. 2d at 1158.
If the meeting was an out-of-court identification, the defendants would have been entitled to disclosure of out-of-court identification procedures, as law enforcement is required to provide "a written record detailing . . . the dialogue between the witness and the interlocutor, and the results." Delgado, supra, 188 N.J. at 63-64; R. 3:11 (enacted in 2012 in response to Delgado, as well as Henderson, supra, 208 N.J. 208, and State v. Chen, 208 N.J. 307 (2011)). The purpose of these guidelines is to ensure the reliability of such identifications. Delgado, supra, 188 N.J. at 62.
In order to determine whether an out-of-court identification procedure was impermissibly suggested, a court must conduct a hearing pursuant to Wade, supra, 388 U.S. at 241, 87 S. Ct. at 1939-40, 18 L. Ed. 2d at 1164-65. See State v. Adams, 194 N.J. 186, 203-04 (2008). The court must first determine if the identification procedures were "impermissibly suggestive"; and, if so, whether the identification was thereby tainted. If after applying this test, "notwithstanding the suggestive nature of the procedure," the identification is found reliable, it may be admitted into evidence. Id. at 204.
However, the meeting in this case was not an out of court identification. The officers were not identifying the perpetrators of the crime, but were testifying about the arrestees' location in the vehicle they stopped. For the photographs to have had any utility at all, the officers would need to have some independent recollection of the individuals' appearance and the area from which each exited the vehicle. In looking at the photographs, they were simply putting names to faces; the photographs did not inform the officers where the arrestees sat in the vehicle.
Accordingly, the officers' testimony did not require a Wade hearing, but was appropriately tested on cross-examination. Both the court and defendants' counsel were thorough in their examination of the officers, and the jury determined their credibility and the weight of their testimony. The testimony about defendants' location was evidently not critical to the verdict, given that defendants were convicted of conspiracy, and acquitted of robbery. We therefore discern no prejudice to defendants or an abuse of discretion by the court in its denial of the motion for a mistrial or a Wade hearing.
IV.
A.
Defendants moved for judgment of acquittal at the close of the State's case. R. 3:18-1. Baker's counsel argued that the evidence presented had failed to establish the charges as to his client. In support, he noted that none of the witnesses could place Baker at the scene of the crime, and that Ragland could not identify him. He further noted that they did not know when he had become a passenger in the white Jeep. Robinson's counsel joined in these arguments and added that the victim had alleged that four people committed the crime, while five people were arrested. He also urged the court not to credit the officers' testimony about defendants' placement in the vehicle.
In opposition, the prosecutor argued that defendants were arrested thirty to forty minutes after the crime, in a vehicle matching the description provided by Ragland. He said that its location in the courtyard when the officers first encountered it indicated that it was "hidden away." The officers' testimony about defendants' placement was corroborated by their finding Robinson's wallet in the front seat. In addition, he noted that a Mossberg shotgun, bandana, and cell phone were also recovered from the vehicle.
Construing all facts in a light most favorable to the State, the court denied the motion. The court ruled that the jury could find that defendants were in the white Jeep used in the robbery, and particularly that Baker was in the driver's seat. The jury could also find that defendants unlawfully possessed the shotgun under the theories of constructive and joint possession; that they were found with the other recovered items; and that, given the short timeframe, the vehicle had not stopped moving from the time of the robbery to their arrest. As to the robbery charge, the court found that "the evidence against Baker [was] at least as persuasive as the evidence against Robinson; and aided by principles of . . . co-conspirator liability and accomplice liability, the jury could convict him beyond a reasonable doubt" of robbery. In addition, as to the conspiracy charge, "the jury could find beyond a reasonable doubt that defendants agreed to commit this armed robbery and it was the collective purpose to do so."
The court made a similar ruling as to Black.
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B.
Baker argues that the trial judge erred in denying his motion for judgment of acquittal on all counts, at the end of the State's case. Robinson argues the same, though only with respect to the conspiracy charge.
In ruling on a motion for judgment of acquittal, the judge must determine "whether, . . . giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). In reviewing a trial court's decision, we abide by the same standard, giving "no consideration to evidence or inferences from defendant's case," and refrain from "reweigh[ing] the evidence considered by the jury." State v. Reddish, 181 N.J. 553, 620 (2004) (citing Reyes, supra, 50 N.J. at 459; State v. Josephs, 174 N.J. 44, 81-82 (2002)).
In this case, after according the State the benefit of all favorable inferences, we agree with the court that there was sufficient evidence to support the denial of defendants' motion for the same reasons provided by the judge.
V.
A.
Robinson challenges his conspiracy conviction, arguing that the jury was able to convict him of that charge based on the judge's erroneous instructions on accomplice liability. He also takes issue with the judge's use of a "blueberry pie" analogy to explain the difference between direct and circumstantial evidence. He raised neither of these objections at trial.
In the jury charge, the court explained the difference between "direct" and "circumstantial" evidence:
Evidence may be either direct or circumstantial. Direct evidence means evidence that directly proves a fact without an inference and which, in itself if true, conclusively establishes that fact. On the other hand, circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn. A simple illustration may be helpful.
The problem is proving that little Johnny ate the blueberry pie. Direct evidence would be testimony indicating that little Johnny's mother saw him eat the blueberry pie.
Circumstantial evidence would be testimony indicating that little Johnny's mother was in the kitchen and little Johnny was seated at the kitchen table with the blueberry pie in front of him. Mom leaves the kitchen to check on little Johnny's sister, little Jane. When mom comes back to the kitchen, little Johnny is still seated at the kitchen table. The blueberry pie is gone, but little Johnny has crumbs all over his lips.
The former directly goes to prove the fact that little Johnny ate the blueberry pie, while the latter establishes facts from which the inference that little Johnny ate the blueberry pie can be drawn.
An inference is a deduction of fact that may logically and reasonably be drawn from another fact, or group of facts, established by the evidence. Whether or not inferences should be drawn is for you to decide using your own common sense, knowledge and every day experience. Ask yourselves is it probably, logical, and reasonable.
The court also set forth the individual elements of each crime charged. As to conspiracy, it instructed:
Count 1 of the indictment charges each defendant with the crime of conspiracy to commit robbery under a provision of our law that provides that quote, "A person is guilty of conspiracy with another person or persons to commit a crime if, with the purpose of promoting or facilitating its commission, he agrees with such other person or persons that they, or one or more of them, will engage in conduct which constitutes a crime".
. . . .
In order for you to find a defendant guilty of the crime of conspiracy, the statement prove beyond a reasonable doubt the following elements: One, that a defendant agreed with another person or persons that they, or one or more of them, would engage in conduct which constitutes a crime. Two, that a defendant's purpose was to promote or facilitate the commission of the crime of robbery.
. . . .
Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendant's guilt of conspiracy. Nor is mere awareness of the conspiracy. Nor would it be sufficient for the state to prove only that a defendant met with others, or that they discussed names and interests in common. However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations.
. . . . For a defendant to be found guilty of conspiracy, the state has to prove beyond a reasonable doubt that when he agreed, it was his conscious object or purpose to promote or make it easier to commit the crime of robbery. . . .
In addition, the court explained how defendants might be found guilty of the charges under a theory of accomplice liability:
The state alleges that each defendant is legally accountable for the criminal conduct of his two co-defendants in violation of a law which reads in pertinent part as follows: "A person is guilty of an offense if it is committed by his own conduct, or the conduct of another person for which he is legally accountable, or both".
A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of an offense. A person is an accomplice of another person in the commission of the offense if, with the purpose of promoting or facilitating the commission of the offense he aids, or agrees, or attempts to aid such other person in planning or committing it.
. . . .
. . . . In order to find a defendant guilty of the specific crimes charged as an accomplice, the State must prove beyond a reasonable doubt each of the following elements: One, that one or more of the defendants on trial committed the crimes charged. . . . Two, that a defendant did aid or agree, or attempt to aid one or more of his co-defendants in planning or committing them. Three, that a defendant's purpose was to promote or facilitate the commission of the offenses. Four, that a defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.
. . . .
. . . A defendant's accomplice status should be considered separately as to each charge.
B.
As previously noted, Robinson raised objections to the jury charge for the first time on appeal. Rule 1:7-2 provides that "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict[.]" We consider the challenge only if the alleged error was "clearly capable of producing an unjust result." R. 2:10-2.
"Appropriate and proper charges to a jury are essential for a fair trial." Reddish, supra, 181 N.J. at 553 (quoting State v. Green, 86 N.J. 281, 287 (1981)). The court must provide "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find" and "a plain and clear exposition of the issues." Id. at 287-88.
In our review, we must "examine the charge in its entirety, to ascertain whether it is either ambiguous and misleading or fairly sets forth the controlling legal principles relevant to the facts of the case." State v. LaBrutto, 114 N.J. 187, 204 (1989). In addition, "[t]here can be no assumption that the jury did not faithfully follow the [instructions]." Manley, supra, 54 N.J. at 271.
Robinson specifically alleges that the judge did not limit the charge of accomplice liability to the charge of robbery, but advised the jury that defendant could be found guilty as an accomplice to "all crimes charged." He argues that this blurred the distinction between "conspiracy" and "accomplice liability," as only conspiracy requires the element of "agreement." We disagree, as we are satisfied from our review that the judge made appropriate distinctions between "conspiracy" and "accomplice liability," separately explaining the elements of both. There is no evidence that the jury failed to understand or follow his instructions, and we believe the verdict demonstrated their understanding.
Robinson also took issue with the judge's "blueberry pie" analogy for "direct" versus "circumstantial evidence." Such "[i]llustrative examples have been used by judges from time immemorial to illustrate abstract legal concepts such as proximate cause and circumstantial evidence." United States v. Armedo-Sariento, 545 F.2d 785, 794 (2d Cir. 1977). We have previously approved of such illustrations, State v. Kelly, 406 N.J. Super. 332, 352-53 (2009), aff'd, 201 N.J. 471 (2010), and defendants have not persuaded us that we should now rescind that approval.
VI.
A.
The court sentenced Robinson on July 17, 2011 to seven years imprisonment, subject to NERA, for conspiracy; and concurrently to five years imprisonment with three years parole ineligibility, for unlawful possession of a weapon. In its determination, the court noted that Robinson had previously been arrested seven times, and considered the severity of his prior convictions. In addition, the court found that defendant had not been deterred by probation. Accordingly, the court found aggravating factors N.J.S.A. 2C:44-1(a)(3), risk of re-offense; (6), extent of criminal record and seriousness of the offenses; and (9), need for deterrence. The court also found "mitigating factor number 14," a non-statutory factor, which the court explained was based on Robinson having written a letter, expressing his willingness to reform, and the fact that he "has a loving family that support him," some of whom testified on his behalf prior to sentencing.
The court sentenced Baker on July 18, 2011 to eight years imprisonment, subject to NERA, for conspiracy; and concurrently to four years imprisonment for unlawful possession of a weapon also subject to NERA. The court found aggravating factors N.J.S.A. 2C:44-1(a)(3), risk of re-offense, and (9), need for deterrence. Baker's family also testified on his behalf, and asked the court for leniency. As with Robinson, the court found the non-statutory mitigating factor, based on Baker's willingness to reform, and his having a supportive family. However, the court also found that the aggravating factors outweighed the mitigating factors.
In addition, the court took issue with Baker's apparent lack of remorse. The judge noted that during an interview between Baker and a probation officer, defendant attempted to justify his involvement with the crime. Counsel insisted that the interview was indicative of Baker's lack of understanding as to his conspiracy charge, rather than a lack of remorse. Despite the court's attempts to clarify Baker's level of remorse, he only was willing to accept responsibility for his vehicle being used in the crime:
DEFENDANT: Your Honor, I'm not saying I was guilty of that robbery. I'm saying my truck was used. I'm not saying I was in that truck at the time, but my truck was used.
The judge asked if Baker knew that his truck would be used in the commission of a robbery, to which he replied, "No, sir."
THE COURT: So then, what is it that you accept responsibility for?
DEFENDANT: It was my truck.
THE COURT: Okay; thank you.
B.
Both defendants claim that their sentences are excessive. We disagree.
We review sentencing determinations for abuse of discretion. State v. Bolvito, 217 N.J. 221, 228 (2014). We must uphold a sentence, unless we find that "(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[s] the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Absent these circumstances, we may not substitute our judgment for that of the trial court. State v. Cassady, 198 N.J. 165, 180 (2009).
Our review of the record satisfies us, as to both defendants, that the judge carefully reviewed each of the mitigating and aggravating factors, determined those applicable to defendants and then sentenced defendants to terms of imprisonment that do not shock our judicial conscience. Robinson's prior criminal record and corresponding sentences and Baker's resistance to express remorse for his participation in the crime for which he was convicted were legitimate considerations reviewed by the court before it imposed its sentences. There is no reason to modify or otherwise disturb those sentences now.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION