STATE OF NEW JERSEY v. LOCKSTON MINOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1277-05T41277-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOCKSTON MINOTT,

Defendant-Appellant.

_____________________________________________________

 

Submitted September 10, 2007 - Decided

Before Judges Stern and C. S. Fisher.

On appeal from the Superior Court of New

Jersey, Law Division, Passaic County, 04-03-0338.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated Counsel,

of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jason F. Statuto,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant was convicted of carjacking in violation of N.J.S.A. 2C:15-2a and 2C:2-6 (count one), but found not guilty of two counts of robbery and various weapons offenses (counts two through seven), and was sentenced to the custody of the Commissioner of the Department of Corrections for thirteen years with 85% to be served before parole eligibility under the No Early Release Act (NERA).

On this appeal defendant argues:

POINT I THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS

OF PROPRIETY BY INFERENTIALLY COMMENTING UPON

THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE.

(NOT RAISED BELOW)

POINT II THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY

OF CARJACKING WAS AGAINST THE WEIGHT OF THE

EVIDENCE. (NOT RAISED BELOW)

POINT III THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY

OF CARJACKING WAS ILLOGICAL, INCONSISTENT AND

THE RESULT OF COMPROMISE. (NOT RAISED BELOW)

POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Except to the extent developed herein, we find no merit to these contentions nor need for extended discussion. See R. 2:11-3(e)(2).

I.

On August 9, 2003 at approximately 1:00 a.m., Estela Castillo was driving her parents' four-door Toyota Camry in which her friend Susanna Chavez was a passenger. Estela "parallel parked" the car and moved to the back seat after her boyfriend, Rolando Gonzalez, entered the vehicle and sat behind the driver's seat. Estela, Susanna and Rolando spent about twenty minutes "just . . . talking" and "listening to music," while Rolando was "counting his money" from a paycheck that he had just cashed. Susanna then saw two people approach the car from behind. One man approached Rolando with a gun "wrapped around a towel," "put [the] gun to [Rolando's] face" and told him to "give me the money, give me the money." Estela testified that she "thought it was just a joke, 'cause [the man who approached Rolando] didn't look so serious," but Rolando gave him the money "right away" as soon as he saw the gun. The man with the gun also "patted down" both Rolando and Estela while they were in the car. Rolando put his cell phone between Estela's legs and tapped her leg to indicate that "it was serious." Rolando and Estela then exited the car. Estela added that, at that point, "the guy had the gun right there in my face."

According to Estella the second man "was on his cell phone" and had "a black shirt or something wrapped around his arm" along with "something shiny" in the hand that was not holding the phone. He opened the driver's side door. Susanna, who had moved to the driver's seat, got out of the car while the man got into the driver's seat.

On cross-examination, Estela stated that the man talking on the cell phone, later identified as defendant, never threatened anyone, nor did he have a gun. Susanna also testified that one of the perpetrators "was talking to the cell phone" but she could not hear what he was saying and he said nothing to Estela, Susanna, or Rolando. Estela further testified that the man "on the [cell] phone got into the driver['s] side," and "[t]he one with the gun got into the back" on the driver's side. Rolando also testified in a deposition that the assailant without a gun was holding a cell phone.

Damion Hansby, a co-defendant, testified for the State pursuant to a guilty plea to second degree robbery resulting from the incident. He testified that he got into the car with defendant and Cheyenne Barrett. Hansby asserted that he never saw defendant talking on a cell phone during the course of the incident and only saw Barrett on the telephone. Cell phone records obtained by the police for the telephone recovered with the car showed that a call was received from "name unknown" at 1:11 a.m. which lasted for fifty-eight seconds. No calls were dialed within the time frame of 1:00 a.m. to 1:30 a.m.

Hansby also took a seat "in the back of the car." Estela testified that as defendant drove the car away, she

was screaming at [the perpetrators], "where are you going with my car, where are you going with my car." And the driver[, who was no longer on his cell phone,] was just telling me "shut the fuck up, bitch." I kept on telling where are you going with my car. [Rolando] was trying to hold me back. And [Susanna] was telling me to calm down, shut up and be qui[et].

After some difficulty, the driver got out of the parking space and left the scene. According to Estela, the entire incident took approximately two to three minutes. Estela and Susanna both testified that they did not know either of the two men who initially approached the car.

A uniformed Paterson police officer came to the scene of the crime where Estela and Susanna waited; Rolando had "[gone] after the guys - after the car." The police officer told her that they found the car "crashed somewhere" and Estela went to the crash scene with her father, who was waiting with her.

At 1:25 a.m. on the morning of August 9, 2003, Officer Garcia of the Paterson Police Department saw a double parked vehicle and blew his air horn. He then approached the vehicle. He noted that no one was in the vehicle, but that the motor was running. While looking into the backseat with a flashlight, the officer saw "what appeared to be a handgun with some type of sheet, like a T-shirt sitting on top of it." He then called police headquarters with information about the vehicle, and was told that it had been involved in a carjacking. Officer Garcia remained at the scene and was later joined by Officer Figueroa, Estela, Susanna, and Estela's mother, who identified the car. Officer Garcia testified that a bandana was also found in the car, and a "folding-type" pocket knife and a CD were found outside the car, in a nearby driveway. The gun had a loaded magazine containing six copper-jacketed "normal" bullets and eleven "hollow point bullets," along with one empty shell casing from a hollow point bullet.

At trial, Estela testified that the three men were "African-American," and the man with the gun wore "a Jamaican beaded necklace." In her testimony before the grand jury, which was referred to at trial, Susanna described the man with the cell phone as "tall, dark skinned, Jamaican" wearing a black T-shirt and a bandana; she explained that she knew the man was Jamaican because of his accent as he spoke on the cell phone. Estela was unable to identify the men in court. Susanna also testified that she "got a look, but can't really identify" the perpetrator with the gun, nor did she believe she could identify the man with the cell phone. She did, however, identify "Damion" to the police.

During the trial, Hansby testified that, after leaving work on the night of the incident, he met Barrett and defendant. Hansby also identified both Barrett and defendant as being of "Jamaican descent." The three men went for a walk, and Barrett brought "a gun[,]" holding it inside his baggy pants with none of the gun showing outside of the pants. Defendant was not armed. Hansby explained that it was fairly obvious that Barrett had a gun due to the way he was walking "with his hand in his pants," although the three men did not discuss the subject. Hansby identified the gun found at the crime scene as the gun that Barrett carried with him that night. Hansby also explained that Barrett stated his intention to "rob someone" to defendant, and defendant responded by saying something along the lines of "whatever, if he up to it." Hansby said that he told the two men that he did not want to rob anyone, and after Barrett tried to get him to join them in a robbery, Hansby "cut across the street."

Hansby explained that he saw Barrett and defendant approach the car and remove the three occupants. He then testified that, after the two men got into the car, they called for him to join them, and he did, sitting in the back seat. Defendant drove away quickly and was chased by police due to his speed. Hansby said that they hit parked cars and as they ran from the car, Barrett tried to "pass" him the gun, which he refused to take, and "put it on the [car's] back seat." The three men then ran in separate directions.

Hansby also identified the cell phone as belonging to Barrett's brother and explained that Barrett was using it that night. He also testified that Barrett had the phone but no one was talking on it while the incident was taking place. Hansby also testified that he recognized the knife in evidence and saw defendant with it on the night of the incident. When questioned by police nine days after the incident, Hansby immediately implicated Barrett and defendant.

In his written statement to police, as recounted at trial by Detective Robert Pleasant of the Paterson Police Department, defendant did not deny participating in the carjacking, but claimed that he was drunk, having consumed approximately three pint-sized bottles of "Guinness Stout." However, in his initial oral statement to police, defendant denied any knowledge of plans to commit a robbery prior to the incident occurring.

No fingerprints were recovered from the gun, the magazine, the cell phone, or the shells, but "two latent fingerprints [were] recovered on the driver's side door of the vehicle," and tests on those prints "came back inconclusive." Defendant's fingerprints were not found on the knife, either. No DNA or other type of testing was done on the bandana or the shirt recovered at the scene. The police never determined who owned the cell phone recovered at the scene.

II.

Defendant argues that "[d]uring his summation, the prosecutor made various remarks which were improper [and] these remarks, in conjunction with various questions posed to the jury, inferentially commented upon the defendant's Fifth Amendment privilege, warranting a reversal." In support of this contention, defendant cites three specific remarks by the prosecutor in which the prosecutor "utilize[d] numerous questions, which necessarily focused the jury's attention upon the fact that the defendant had not provided any responses to these questions because she [sic] had not, in fact, actually testified."

The first statement addressed the prosecutor's comments that defense counsel presented two theories, intoxication and duress, as to why defendant was not "responsible" for the crime. The prosecutor asked whether evidence existed of defendant's intoxication during the incident, first noting that no containers of beer were found in the car and then stating,

[f]rom witnesses, the victims, the eyewitnesses who were there, any testimony in any way, shape or form indicating that anybody appeared to be intoxicated? Nothing. What's the only evidence in this case of intoxication? His statement.

The second comment addressed defendant's duress defense as "Mr. Snowden's [(the defense attorney)] defense." The prosecutor stated "[n]ow we have what I, most respectfully, submit is Mr. Snowden's defense, duress." Defendant faults the prosecutor for "maintain[ing] there was no evidence to support [the duress] contention," stating:

Is there any evidence in this case whatsoever that you heard - remember what Judge Marmo said evidence is; testimony of witnesses plus the physical exhibits plus the fair and reasonable inferences to be drawn from the testimony and the physical exhibits - that says the defendant was actually threatened with imminent bodily injury, with unlawful force unless he committed this crime? There is nothing.

I believe - I know I asked Estela, I think Susanna as well, but your recollection will control, did you see anything that led you to believe that the man with the cell phone was forced to do this, any fear, any hesitation? I think I asked, I think, Estela or Susanna. It might have been both. When you were gotten out of the car, did the man say I'm sorry, I have to do this? Is there anything like that? The answer, of course, was no. There was nothing, absolutely nothing to show that there was any threat made or any force used.

In the third contested statement highlighted by defendant, defendant states that "the prosecutor posed various questions to the jury impeaching the duress defense in the process." The prosecutor's statement referred to what defendant told Detective Pleasant:

Then Pleasant asks the smart question that all police officers should, the in case I forgot something question. And that's when Detective Pleasant read, "Is there anything that you would like to add to this statement?"

Now you think at this point if there was any merit to this at all, you think you'd say officer, look, man, I didn't want to do this, he had a gun. What's the answer? "Yeah, I think [Barrett] got the gun from his friend because he never got no gun when we be together." How is that possible that you couldn't have thought about saying that to the police officer?

Couple of other interesting points. When the defendant thought that a police officer was trying to pull them over or was interested in them, [defendant] runs away with [Barrett] - not away from [Barrett]. The gun is now in the car, no longer a threat. He runs with him. They all ran down that driveway into that backyard, hopped the fence and then split up.

If his life was really in danger, why do you run with him. And whose house was he at about a week later when the police were there? Barrett's house. I realize he was living there. I realize he was staying there. I realize nobody likes to get up and leave where they're living, I understand that. But your life was threatened by the guy with this, and you don't get the heck out of there?

Ladies and gentlemen, there is no evidence that any force was used. All of the evidence in this case shows that there was no force used on [defendant]. This was a position eloquently articulated by an excellent lawyer. But there are no facts, no evidence.

Defendant also cites the prosecutor's comments on the lack of evidence presented at trial to support defendant's "two alternative defenses," claiming that these comments were impermissible "if [they] could only be construed as referring to the absence of testimony by the defendant." He argues that the cumulative effect of these comments denied him a fair trial and infringed on his Fifth Amendment right to remain silent.

A prosecutor's inappropriate statements will warrant a new trial if they are "'clearly and unmistakably improper,' and . . . substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)); see also State v. Wakefield, 190 N.J. 397, 437 (2007). In determining whether to reverse a conviction, we analyze "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Smith, supra, 167 N.J. at 182 (citing Timmendequas, 161 N.J. at 575; State v. Marshall, 123 N.J. 1, 153 (1991); State v. Ramseur, 106 N.J. 123, 322-23 (1987)).

Where, as here, no objection is made to allegedly "improper remarks, the remarks will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83 (1999) (quoting Ramseur, supra, 106 N.J. at 323). This is so, because "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." Id. at 84. Absent a demonstration that plain error should be noticed because the comments were so "clearly and unmistakably improper," and that they "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense," Smith, supra, 167 N.J. at 181-82, reversal is not warranted. Frost, supra, 158 N.J. at 83.

Here, defendant has failed to demonstrate that the prosecutor's comments were "clearly capable of producing an unjust result." R. 2:10-2. The prosecutor did not suggest that the defendant's failure to testify indicated guilt. Instead, the prosecutor argued that the defense failed to present sufficient evidence to raise the defenses of duress and intoxication. Moreover, the victims and a co-defendant testified and suggested no such circumstances. The portions of the record cited by defendant do not include "inaccurate legal or factual assertions[,]" nor do they stretch beyond "reasonable inferences to be drawn from that evidence." See Wakefield, supra, 190 N.J. at 437; Smith, supra, 167 N.J. at 178.

We similarly reject defendant's arguments directed to the weight of the evidence. Defendant admits that "a motion for a new trial raising this issue was not made in the trial court." When a party fails to raise the claim at trial that a jury verdict is against the weight of the evidence, the claim is generally barred on appeal. See R. 2:10-1.

In any event, "the trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). Thus:

an appellate court may not overturn the verdict "merely because it might have found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div. 1985), certif. denied, 102 N.J. 312 (1985). Appellate intervention is warranted only to correct an "injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Johnson, supra, 203 N.J. Super. at 134. Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced. State v. Haines, 20 N.J. 438, 446-47 (1956).

[State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).]

Defendant was found guilty of carjacking. The proofs reflect that he was present at the scene of the crime, and that he drove the carjacked vehicle away from the incident. There was evidence that he and Barrett "threaten[ed] an occupant or person in control with, or purposely or knowingly put an occupant or person in control of the motor vehicle in fear of, immediate bodily injury," because Barrett brandished a gun and the occupants exited the car which defendant drove away. N.J.S.A. 2C:15-2(a). Defendant was indicted and charged as an accomplice. Therefore, there was no "injustice resulting from a plain and obvious failure of the jury to perform its function" warranting our intervention, Smith, supra, 262 N.J. Super. at 512 (citing Haines, supra, 20 N.J. at 446-47), and defendant has failed to demonstrate that the jury's verdict resulted in a "'miscarriage of justice under the law." Herrera, supra, 385 N.J. Super. at 492 (quoting R. 2:10-1).

Defendant argues a reversal is also warranted, because "[t]he jury's verdict finding the defendant guilty of carjacking was illogical, inconsistent[,] and the result of compromise." Defendant asserts that "by exonerating the defendant on Counts II through VII of the indictment, the jury concluded the defendant had not been part of any plan to commit a robbery even under accomplice liability principles." According to defendant, "since any plan conceived by Barrett necessarily encompassed a carjacking as well as a robbery, it was impossible for the jury to rationally conclude the defendant had been a willing participant in the carjacking and was criminally culpable as an accomplice."

At trial, defendant was found guilty of count one, first degree carjacking, but was found not guilty of armed robbery of Estela and Rolando and the lesser included offenses of robbery and theft from the person; possession of a weapon (a handgun) for an unlawful purpose; unlawful possession of a handgun; unlawful possession of prohibited device (hollow point bullets); and possession of a large capacity ammunition magazine.

As long as sufficient evidence exists in the record "to establish guilt on the substantive offense beyond a reasonable doubt," State v. Lopez, 187 N.J. 91, 102 (2006) (quoting State v. Banko, 182 N.J. 44, 54-55 (2004)), "[i]nconsistent verdicts are accepted in our criminal justice system[,]" ibid. (quoting Banko, supra, 182 N.J. at 53). As the Supreme Court has explained:

[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Our jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room. In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty. Instead, we determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty.

[Lopez, supra, 187 N.J. at 102 (quoting State v. Muhammad, 182 N.J. 551, 578 (2005) (citations omitted)).]

As already noted, the jury's verdict on the carjacking count was not against the weight of the evidence. Therefore, there is no basis for disturbing it. See Lopez, supra, 187 N.J. at 102 (quoting Muhammad, supra, 182 N.J. at 578). We add, however, that the jury charge demonstrates that count one, the carjacking charge, differed from other counts in the indictment in that it was the only count that alleged use of force or fear of bodily injury incident to the taking of an automobile. The judge stated that the count charging carjacking "essentially amounts to committing a robbery and taking the car in the proc[ess] of the robbery." He then specified that "[c]ount two charges robbery of Estela and that refers not to robbery by taking the car, but . . . to the robbery by attempting to take some personal property of hers." In reference to count three, which alleged robbery of Rolando, the judge stated that the allegation required a finding "that some property was taken, money." The judge thereafter addressed the weapons offenses. Thus, each count of the indictment referred to different behavior, and the jury could have found only an intent to steal the car by entering and driving it away.

Defendant argues that "in light of the applicability of the No Early Release Act to the present case, and since the carjacking in the present case was among the least serious of all carjacking situations, the trial court should have imposed a term commensurate with a second degree offense," or at least a term of less than the thirteen years imposed. He also contends that the judge failed to acknowledge certain mitigating factors requiring a lesser sentence. However, we cannot agree. See State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v. Pierce, 188 N.J. 155, 166 (2006) (explaining that "an abuse of discretion standard [is used] in the appellate review of sentences"). The judge imposed a sentence at the low end of the range for carjacking, see N.J.S.A. 2C:15-2(b); State v. Zadoyan, 290 N.J. Super. 280, 290-91 (App. Div. 1996), and we cannot conclude that he abused his considerable discretion by not finding both "that mitigating factors outweigh the aggravating factors and the interest of justice demands" a downgrade of the sentencing range. State v. Megargel, 143 N.J. 484, 488 (1996).

The judgment of conviction is affirmed.

 

Gonzalez did not testify at trial, but his videotaped deposition, which was subject to confrontation, was played to the jury as he was out of the country for the duration of the trial.

Susanna recognized Hansby from high school. She saw him called to the scene from across the street by the other two, and get into the rear passenger seat.

Unlike Hansby and Susanna, Estela testified that Hansby took the front passenger's seat.

The judge charged that duress was an "affirmative defense," but that the State had to disprove it beyond a reasonable doubt. The judge also charged that defendant must produce "some evidence of his intoxication," but that "the State must prove beyond a reasonable doubt that such intoxication did not render the defendant incapable of acting purposely or knowingly." There is no issue raised with respect to the charge.

As already noted, the judge charged accomplice liability, and there was no objection to the charge.

(continued)

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A-1277-05T4

October 9, 2007