STATE OF NEW JERSEY v. DAVID M. GREY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0443-03T40443-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID M. GREY,

Defendant-Appellant.

_______________________________________

 

Argued September 12, 2005 - Decided

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-04-00362-I.

Sharon Bittner Kean, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney for appellant; Ms. Kean, on the brief).

Mary E. McAnnally, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney; Ms. McAnnally, on the brief).

PER CURIAM

After a trial before a jury, defendant David M. Grey was found guilty of conspiring with co-defendant Charles M. Hussey, Jr. to commit robbery, second degree, in violation of N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; unlawful possession of a weapon, fourth degree, contrary to N.J.S.A. 2C:39-5(d); possession of a weapon for an unlawful purpose, third degree, in violation of N.J.S.A. 2C:39-4(d); and robbery, first degree, contrary to N.J.S.A. 2C:15-1. The judge merged the conspiracy and the weapons charges with the robbery charge and sentenced defendant to twelve years in prison, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.

I.

We begin with a summary of the evidence presented at trial. On the evening of January 24, 2001, at about 6:00 p.m., Louise Ouelette was working as a clerk at My Place Deli in Laurence Harbor, New Jersey. Hussey, a regular customer of the store, entered the deli to purchase cigarettes. Shortly after Hussey left, another man entered. Ouelette testified that he was wearing a dark ski mask, dark clothing, a hat and gloves. The man told Ouelette to open the cash register. When Ouelette called out to her co-worker Angel Izquierdo, who was in the back room with a friend, the man grabbed her by the hair and forced her to walk towards the register. He took out a knife and held it against Ouelette's throat. She said it was a huge knife, with a dark handle and serrated edges. Ouelette screamed for help. Izquierdo came into the room and opened the register. The man took the money and fled. Ouelette immediately reported the robbery to the police and Detective John Reinhardt of the Old Bridge Police Department responded to the scene.

Officer Addie Spinola testified that around 6:30 p.m. she was traveling north on Route 35. Spinola was dispatched by radio to the area where the crime had reportedly occurred. Spinola said that she observed a man walking southbound in the northbound lane, on the shoulder of the road. Spinola believed that the individual noticed her vehicle. He entered a yard. Spinola pulled over, got out of the vehicle, radioed headquarters and began checking the yard. In the front yard, she observed the individual in a fetal position, next to the garbage cans. Spinola ordered him to stay down but he got up and ran. Spinola chased him. He went around the house and jumped over a fence. Spinola testified that she was on Cleveland Avenue, where it meets Harding Road. She looked up Cleveland and did not see anyone in that area. At trial, she described the individual as a white male, approximately in his mid-thirties, with short blond hair and a medium build. She said he was wearing blue jeans and a blue or black hooded sweatshirt.

Sergeant Carl Policari and Sergeant Schlueter also responded to the deli. Schlueter went into the deli and Policari testified that he proceeded on foot down Bayview Drive towards Cleveland Avenue to assist Spinola. When Policari arrived on Cleveland Avenue, he observed Hussey walking down the middle of the road. Policari said that Hussey was out of breath and he was "a little confused on where he was going to." Policari detained Hussey and held him against a fence. Spinola responded and told Policari that Hussey was not the man she had been pursuing.

At around 7:30 p.m., Robin Eckel of the Monmouth County Sheriff's Office arrived at the deli with a police dog named Chino. Eckel testified that he has been assigned to the canine unit about twelve years. Chino is a tracking dog trained to follow scents, including the scent of human beings. Chino was removed from the canine vehicle and brought to the spot where Spinola last saw the man she was pursuing. Eckel said the dog picked up the scent and they started tracking. Eckel approached the fence that the man had jumped over. He observed a pair of blue gloves, one on the fence and one on the ground. Eckel and the dog went over the fence and tracked to the corner of McKinley and Harding Roads. According to Eckel, when he approached the front yard of a house at 500 Harding Road, Chino was wagging his tail and had his nose to the ground. To Eckel, this indicated that Chino was tracking the suspect. Eckel said that the dog appeared to lose the scent at that point and stopped tracking. Defendant, his wife and Hussey lived in the house at 500 Harding Road.

Reinhardt testified that he knocked on the door of the house at about 9:00 p.m. but no one answered the door. Reinhart remained with other officers in the vicinity of the house for about an hour and then he returned to headquarters. Reinhardt continued his investigation in the days that followed. Reinhardt learned that Hussey would be in the Old Bridge Municipal Court on the evening of January 31, 2001 and he approached him there. He asked Hussey to accompany him to his office. There, Hussey provided a statement in which he implicated defendant in the robbery.

Immediately thereafter, Reinhardt and other officers proceeded to the house at 500 Harding Road. At around 2:30 a.m. on February 1, 2001, Reinhardt arrested defendant and transported him to police headquarters. Defendant was questioned and, at 5:30 a.m., defendant gave an audio taped statement in which he admitted that he and Hussey had robbed the deli. Defendant said that he committed the robbery so that he could obtain drugs for himself and his wife.

Defendant testified at trial. He asserted that when he was arrested he was not warned of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant said that he repeatedly told Reinhardt he wanted to see an attorney but his requests were denied. Defendant also said that he was questioned continually for five hours before he signed the form waiving his Miranda rights and, during the interrogation, Reinhardt threatened to arrest defendant's wife and mother if he did not confess to the crime. Defendant additionally asserted that he was under the influence of narcotics when he made the statement. He denied that he robbed the deli.

On this appeal, defendant raises the following points for our consideration:

POINT ONE: THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION TO SUPPRESS HIS AUDIO TAPED STATEMENT WHICH WAS TAKEN IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

POINT TWO: THE TRIAL JUDGE DENIED DEFENDANT HIS RIGHTS TO CONFRONTATION, DUE PROCESS AND TO A FAIR TRIAL WHEN SHE DECIDED TO TAKE TESTIMONY ON DAY ONE OF THE TRIAL UNTIL 5:30 P.M.

POINT THREE: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL AFTER OFFICER SPINOLA TESTIFIED THAT SHE MIGHT BE ABLE TO IDENTIFY THE PERSON SHE HAD BEEN PURSUING.

POINT FOUR: THE TRIAL JUDGE ERRED IN FAILING TO STRIKE THE TESTIMONY OF SERGEANT POLICARI BECAUSE HIS TESTIMONY WAS TAINTED BY THE PROSECUTOR'S IMPROPER COACHING, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT FIVE: A MISTRIAL SHOULD HAVE BEEN DECLARED BECAUSE DETECTIVE REINHARDT AND OFFICER SPINOLA VIOLATED THE COURT'S SEQUESTRATION ORDER.

POINT SIX: DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE TESTIMONY OF DETECTIVE REINHARDT THAT, AT THE TIME OF DEFENDANT'S ARREST, THERE WERE OUTSTANDING WARRANTS FOR DEFENDANT'S ARREST ON UNRELATED MATTERS.

POINT SEVEN: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OR, ALTERNATIVELY, FOR A NEW TRIAL BASED ON TRIAL ERRORS THAT DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS, CONFRONTATION AND A FAIR TRIAL.

POINT EIGHT: THE SENTENCE IS EXCESSIVE.

II.

We turn first to defendant's contention that the judge erred in denying his motion to suppress the audio-taped statement given to the police on February 1, 2001. He contends that he did not knowingly and voluntarily waive his right to remain silent. We disagree.

The Fifth Amendment to the Constitution of the United States provides individuals in custodial interrogation with the right against self incrimination. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Persons who are taken into custody must be informed of their right to remain silent before law enforcement officers may initiate questioning. State v. Brown, 352 N.J. Super. 338, 351 (App. Div.), certif. denied, 174 N.J. 544 (2002). "A custodial confession is admissible only if there has been a knowing, intelligent, and voluntary waiver of Miranda rights." State v. Cooper, 151 N.J. 326, 354-55 (1997)(citing Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). The State must establish beyond a reasonable doubt that defendant waived his Miranda rights. State v. Cook, 179 N.J. 533, 552 (2004). In determining whether defendant's waiver was voluntary, the court must consider "the totality of the circumstances, including the characteristics of the defendant and the nature of the interrogation." State v. DiFrisco, 174 N.J. 195, 235 (2002), cert. denied, 537 U.S. 1220, 123 S. Ct. 1323, 154 L. Ed. 2d 1076 (2003).

Here, following the suppression hearing, the trial judge determined that defendant was informed of his Miranda rights and made a knowing, intelligent and voluntary waiver of his right to remain silent before giving his statement to the police. The judge found that Reinhardt's testimony was more credible than that of defendant. Based on this finding, the judge determined that defendant had been informed three times of his Miranda rights. The judge rejected defendant's assertion that he requested an attorney. She also found that defendant's contention that he was under the influence of cocaine and heroin when he made his statement to the police was inconsistent with his assertion that he recalled distinct facts concerning the interrogation. Reinhardt also testified that defendant was calm, coherent and cooperative and Reinhardt's assertion was borne out by defendant's audio taped statement. Moreover, when he made his statement to the police, defendant asserted that he was not under the influence of narcotics or alcohol.

The judge additionally rejected defendant's claim that he made the statement because Reinhardt threatened to arrest defendant's wife and mother. The judge noted that, in his statement, defendant asserted that he did not feel threatened and he was happy to be sitting with the detective. The judge also discounted the detective's purported "promise" that, if defendant confessed, he would only serve a three year term. These findings amply support the judge's conclusion that defendant's waiver of his right to remain silent was knowing, intelligent and voluntary. We must defer to the findings of the trial judge where, as here, the findings are "substantially influenced" by the judge's opportunity to observe the witnesses and to have the "feel" of the case. State v. Locurto, 157 N.J. 463, 470-71 (1999)(quoting State v. Johnson, 42 N.J. 146, 199 (1964)).

III.

We next consider defendant's assertion that the judge erred in failing to declare a mistrial because on the first day of the trial, the judge determined to continue testimony beyond 4:00 p.m. Defendant argues that defense counsel was forced to cut short his cross-examination of Officer Spinola in violation of his right to confrontation and due process of law. Defendant also contends that his cross-examination of the witness was "compromised" because the jurors were "forced" to stay into the evening on a Friday when certain jurors had other commitments. These contentions are without merit.

The record shows that the judge advised the jurors that court proceedings would ordinarily conclude each day at 4:00 p.m. On Friday, September 20, 2002, it became apparent that Officer Spinola's testimony would not be completed by 4:00 p.m. The officer was not available the following week and the judge gave the jury the option of continuing beyond 4:00 p.m. or adjourning the case for a week. The jury was asked to return to the jury room and consider the matter. The foreperson advised the court that the consensus of the jury was to continue, although one juror had a problem with child care and continuing the matter past 4:00 p.m. would result in an additional expense of about $40. The judge decided to continue the trial.

Defense counsel cross-examined Spinola. He completed his questioning before 5:00 p.m. and he stated, "Believe it or not, I think I'm done, Judge." Despite this statement, defense counsel later argued to the judge that he had been forced to curtail his cross-examination. Defense counsel asserted that there were "probably" other areas that he could have gone into but he did not inform the judge of the specific questions that he was unable to ask the witness because of time constraints.

A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) (citing State v. Lozada, 257 N.J. Super. 260, 277 (App. Div. 1992)). A mistrial is warranted only when an error cannot be remedied by a instruction to the jury or some other curative action. State v. Winter, 96 N.J. 640, 646 (1984). The motion for a mistrial is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Id. at 647.

Because Spinola was not available the following week to continue her testimony, the only alternative was to delay the trial for a week. The consensus of the members of the jury was to continue the trial past 4:00 p.m. As we stated previously, one juror had a financial hardship and the judge correctly did not believe it was significant enough to adjourn the trial. Moreover, there is no evidence whatsoever that defendant was prejudiced by continuing the trial after 4:00 p.m. There is nothing in the record to suggest that defense counsel was forced to curtail his questioning of Spinola. Indeed, he stated on the record that he had completed his cross-examination of the witness. We are convinced that defendant was not prejudiced by the continuation of the trial beyond 4:00 p.m. on September 20, 2002 and a mistrial was not warranted.

IV.

We turn to defendant's contention that the judge erred in failing to grant a mistrial because Officer Spinola stated that she "may" be able to identify the man she was chasing on the evening of January 24, 2001. Defense counsel objected to further testimony by Spinola on that point because he had not been advised that Spinola was going to make an in-court identification of defendant. Outside the presence of the jury, Spinola was asked, "Do you see the person that you were chasing in this courtroom today?" She replied, "I believe I do." She identified defendant. At this point, defendant moved for a mistrial.

The judge conducted a N.J.R.E. 104 hearing concerning Spinola's identification. Spinola testified that she had seen a photo of defendant a few days after his arrest and she had identified defendant from the photograph. Spinola stated that she did not tell anyone in the prosecutor's office that she had identified defendant. She could not recall whether she discussed her identification with any other officer. Spinola further testified that she made her in-court identification of defendant based on his appearance in court. She said that she remembered the person who she chased on the evening of January 24, 2001.

The judge denied defendant's motion for a mistrial. The judge ruled that Spinola would not be permitted to identify defendant. The judge determined that Spinola had identified defendant in 2001 and defense counsel should have been advised of the identification before the trial. The judge asked defendant's attorney whether he wanted a curative instruction, or whether he preferred that the judge say nothing further on the subject. Defendant did not ask for an instruction.

Defendant argues that he was prejudiced by Spinola's testimony and the prejudice warranted a mistrial. We disagree. Defendant asserts that the jury was left with the clear inference that Spinola could identify the person who she chased on the night of the robbery and that person was defendant. But in her testimony before the jury, Spinola never definitively stated that she could identify the person she chased. Because her testimony was equivocal on that point, the jury could just as well have inferred that Spinola could not identify defendant. We are satisfied that the trial judge did not abuse her discretion in denying defendant's motion for a mistrial.

V.

Defendant additionally argues that a mistrial should have been declared because the prosecutor engaged in what defendant contends was improper coaching of a witness, Sergeant Policari. In his direct testimony, Policari stated that he had in his possession certain questions provided to him by the assistant prosecutor. On cross-examination, Policari stated that the assistant prosecutor also had given him answers to the questions. On re-direct, Policari was asked by the assistant prosecutor whether the answers provided to him were consistent with his incident report. Policari replied:

I'll be quite honest with you. I really didn't go over your stuff. I just know what I have to say. In regards to the report, mine is cut and dry on what I was dealing with. I really never looked at them.

Defendant did not seek to strike Policari's testimony but this was one of the grounds upon which defendants sought a mistrial after the State had completed presentation of its case in chief. The trial judge denied the motion.

We do not think it is appropriate for the prosecutor to provide a witness with written answers to questions that are expected to be asked at trial. We recognize that witnesses must be prepared for their testimony but the answers to questions should be provided by the witnesses, not the prosecutor.

Nevertheless, in the particular circumstances of this case, we are not convinced that the judge erred in denying a mistrial. Here, Policari made clear that he had not consulted the answers provided by the prosecutor when he was preparing for his testimony. Simply put, Policari's answers to the questions posed at trial were his own, not those of the prosecutor. While it may have been improper for the prosecutor to provide Policari with written answers to anticipated questions, the impropriety did not affect the outcome of the case, or result in any manifest injustice to defendant.

VI.

Defendant next argues that the judge erred in denying his motion for a mistrial because Detective Reinhardt and Officer Spinola violated the court's sequestration order by discussing Spinola's testimony concerning the discovery of the knife used in the robbery. We disagree.

In State v. Tillman, 122 N.J. Super. 137, 143 (App. Div.), certif. denied, 62 N.J. 428 (1973), we set forth the general procedure for handling violations of sequestration orders in criminal trials. We stated that the trial judge should conduct a voir dire out of the presence of the jury to determine the nature and extent of any such violation. Ibid. The judge must then determine what remedial action is required to mitigate the prejudicial effect of a violation of the order. Ibid. Where it does not "clearly appear" that the violation possesses a potential for prejudice, the judge may "call the disobedience of the order to the attention of the jury as bearing on the credibility of the witnesses involved." Id. at 144. In such matters, the judge may permit the parties to "interrogate the witnesses as to what occurred and may comment thereon in their summations." Ibid. In an "extraordinary case" where the prejudice cannot be addressed by other remedial action, the court may grant a mistrial. Id. at 143.

Here, Spinola testified at trial that defendant was not on the scene when she located the knife. However, Reinhardt had testified before the grand jury that defendant accompanied the officers to find the knife. After she testified, Spinola called Reinhardt to discuss this discrepancy. Reinhardt testified on direct that, after defendant provided his audio taped statement, he focused on locating the knife. Reinhardt testified that it was his intention that defendant would assist the officers in locating the knife. On cross-examination, Reinhardt admitted that he spoke about the discovery of the knife with Spinola. He also stated that he had informed the assistant prosecutor about the discussion. Defendant then moved for a mistrial.

The judge denied the motion and allowed defense counsel the opportunity to question Reinhardt about his conversation with Spinola. The judge then issued curative instructions, informing the jury of the violation of the sequestration order and instructing the jury that it could consider the violation when weighing the credibility of the witnesses. Reinhardt then testified that he was mistaken when he testified before the grand jury that defendant accompanied the police on the search for the knife.

We are satisfied that the judge did not err in denying a mistrial. In our view, this was not the "extraordinary case" where the violation of the sequestration order was so prejudicial as to foreclose resort to any remedial action. Tillman, supra, 122 N.J. Super. at 143. We are not convinced that the discrepancy between the testimony of Reinhardt and Spinola on the issue of whether defendant accompanied the officers on the search for the knife was critical to the credibility of either witness. In any event, if there was a potential for prejudice from the violation of the sequestration order, it was sufficiently addressed by the judge's curative instructions.

VII.

We next consider defendant's contention that a mistrial was required because Detective Reinhardt stated in his testimony that defendant was arrested because there were warrants for his arrest on certain unrelated matters. The court instructed the jury to disregard the testimony. Defendant moved for a mistrial.

The judge explored the matter outside the presence of the jury and Reinhardt explained that he was referring to a traffic violation. The judge denied defendant's application for a mistrial, directed Reinhardt not to mention other charges against defendant, and issued a curative instruction to the jury. The judge stated that the warrant referred to was for a traffic violation and the jury was told to disregard the testimony. The judge added:

You may not use this information to decide . . . that defendant had a tendency to commit crimes, or that he is a bad person. That is, you may not decide that just because the defendant had a traffic violation, that he must be guilty of the present charge.

In our view, the judge's curative instructions addressed any potential for prejudice arising from Reinhardt's testimony about warrants on "unrelated matters." We are not convinced that the detective's passing reference to defendant's outstanding warrants for certain unrelated traffic violations was likely to affect the jury's determination as to whether defendant committed the serious offenses of armed robbery and conspiracy to commit armed robbery. See State v. Loftin, 146 N.J. 295, 394 (1996)(noting that it was unlikely that a juror would have been moved to convict defendant of murder because of evidence that he engaged in credit card fraud); and State v. DiFrisco, 137 N.J. 434, 497 (1994) (finding that defendant who confessed to an execution style murder was not prejudiced by evidence that he stole a car, violated traffic laws and yelled at his mother). Moreover, the jury is presumed to have followed the judge's instructions and disregarded this evidence. State v. Bauman, 298 N.J. Super. 176, 207-08 (App. Div.), certif. denied, 150 N.J. 25 (1997).

VIII.

Defendant additionally contends that his sentence is excessive. As stated previously, the judge sentenced defendant to a term of twelve years with a period of parole ineligibility prescribed by NERA. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3)(risk of re-offense); (6)(extent of defendant's prior criminal record and the seriousness of the offenses); and (9) (need to deter defendant and others from violation the law). The judge also found mitigating factors under N.J.S.A. 2C:44-1b(2)(defendant did not contemplate that his conduct would cause or threaten serious harm) and (3) (defendant acted under a strong provocation). The record supports the judge's findings.

The judge found that the mitigating factors predominated and she imposed a sentence that is shorter than the presumptive term for first degree crimes of fifteen years. N.J.S.A. 2C:44-1f(1)(b). We are convinced that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
We have considered the other issues raised by defendant and find the contentions not to be of sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

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September 28, 2005