STATE OF NEW JERSEY v. LUIS SANTANA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2440-04T42440-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS SANTANA,

Defendant-Appellant.

__________________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Conley, Winkelstein and Sabatino.

On appeal from New Jersey Superior Court, Law Division, Criminal Part, Morris County, Indictment no. 02-07-0961.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, designated counsel and on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second-degree robbery, simple assault and two counts of terroristic threats. He was acquitted of weapons-related charges. The State's motion for an extended sentence was granted and a twenty-year NERA term was imposed on the second-degree conviction. A consecutive five-year term was imposed on one of the terroristic threat convictions, along with the necessary fines and penalties. The remaining convictions were merged.

The convictions arose from the robbery of Michael Stein, a boarding house resident. The incident occurred on July 2, 2002, when Stein returned to the boarding house at 9:45 p.m. He entered through the rear entrance and walked past the room of another resident whom he knew. The door was open and there were people in the room drinking. According to Stein, defendant came out of the room with a twelve-inch butcher knife, demanding money. Stein took out $150 from his pocket, but defendant put the knife to his throat and said "I'm going to kill you. You must have more money on you." Defendant then hit him in the right eye approximately three to five times. Stein claimed his thumb was cut during the encounter.

Stein escaped to his room, with defendant following and threatening him. The next morning, Stein woke up at approximately 5 a.m. and heard defendant saying "the next time I'll kill you." Stein went to work that morning. His employer testified that he had bruises or cuts on his face when he arrived at work. "[H]is face was just a mess . . . ."

Two days later, Stein reported the incident to the police. Photos were taken of him, showing cuts on his hands and injuries to his right eye. He identified defendant as the perpetrator. The officer who took photographs of Stein's injuries told the jury that based on his experience they appeared "relatively recent" and "fit with what Mr. Stein advised us . . . ."

During the course of the ordeal, Stein had recounted to the police that defendant had cut the laces of his shoes. In this respect, another officer testified that in the course of his investigation he located Stein's shoes and found the "laces had been cut up as he described."

Defendant gave a Mirandized statement. He admitted that he and Stein had an "altercation." He claimed that he only hit Stein because he was mouthing off to him when the two were drinking together in a room at the boarding house. He denied Stein's other allegations.

Defendant presented the testimony of the resident from whose room defendant had emerged. He described Stein as "one of the resident drunks in the building." He did not recall any confrontation between Stein and defendant on July 2, 2002.

On appeal, defendant contends:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR IN INSTRUCTING THE JURY ON THE LESSER INCLUDED OFFENSE OF SECOND DEGREE ROBBERY ON COUNT ONE.

POINT II: THE TRIAL TESTIMONY OF SERGEANT BERNOTAS AND SERGEANT ROON IMPROPERLY ENDORSED THE CREDIBILITY OF MR. STEIN AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT COULD HAVE "TIPPED THE CREDIBILITY SCALE."

POINT III: COMMENTS MADE BY THE PROSECUTOR IN THE STATE'S OPENING AND CLOSING STATEMENTS CONSTITUTE PLAIN ERROR (Not Raised Below).

POINT IV: IMPOSITION OF THE AGGREGATED BASE CRIMINAL SENTENCE OF TWENTY-FIVE (25) YEARS WITH A NERA PERIOD OF PAROLE INELIGIBILITY ON TWENTY (20) YEARS WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.

B. IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER.

C. ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ROBBERY ON COUNT ONE THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM.

D. THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR TERRORISTIC THREATS ON COUNT SIX CONSECUTIVE TO THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR ROBBERY ON COUNT ONE.

E. IMPOSING A NERA PERIOD OF PAROLE INELIGIBILITY ON THE TWENTY (20) YEAR BASE EXTENDED TERM WAS ILLEGAL.

We have considered these contentions in light of the record and applicable law. As to point IV, parole disqualifiers and extended terms are not violative of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Abdullah, 184 N.J. 497, 512 (2005). However, because a sentence above the presumptive was imposed, a State v. Natale, 184 N.J. 458 (2005) (Natale), resentencing is required. In all other respects, we reject the sentencing contentions in point IV without further comment. R. 2:11-3(e)(2). We also reject points I, II and III. We do not further elaborate on point III, R. 2:11-3(e)(2), but address points I and II as follows.

Defendant argues in point I that the trial judge erred in instructing the jury on second-degree robbery as an included offense of the first-degree robbery charge. Within the context of the facts here, robbery occurs where, in the commission of a theft, force or bodily injury is inflicted or threatened. N.J.S.A. 2C:15-1a(1),(2). N.J.S.A. 2C:15-1b provides:

Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.

Thus, robbery is a second-degree offense, except where aggravating factors elevate the offense to first-degree. Those factors are the use or threatened use of a deadly weapon, an attempt to kill or purposeful infliction of serious bodily injury or attempt to so inflict. The aggravating factor here was the alleged use of the butcher knife.

It is gainsaid that a trial court must give a lesser-included charge, even if not requested by counsel, when the trial evidence "clearly indicate[s] that a jury could convict on the lesser [offense] while acquitting on the greater offense. State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Garron, 177 N.J. 147, 180-81 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. Choice, 98 N.J. 295, 299 (1985); State v. Powell, 84 N.J. 305, 318-19 (1980). Here, the evidence so clearly indicated. Although Stein testified that defendant had attacked him with a butcher knife asserted to be twelve inches long, he was confused about which hand defendant held the knife in and, even, how many knives were involved. And although there were minor cuts to his hand, they would not be consistent with the wielding of a twelve-inch butcher knife. On the other hand, the photographs of Stein's face did corroborate his additional claim that defendant hit him in the face while demanding money, evidence that would support second-degree robbery.

In point II, defendant argues that the testimony of the investigating officers that the observations they made supported Stein's assertions was impermissible. It is within the jury's "exclusive domain" to determine whether a witness is credible. State v. R.B., 183 N.J. 308, 337 (2005) (Albin, J., dissenting). Therefore, "the mere assessment of another witness's credibility is prohibited." State v. Frisby, 174 N.J. 583, 594 (2002). We have stated:

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness. The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury.

[State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991) (quoting Commonwealth v. Seese, 517 A.2d 920, 922 (1986)), aff'd, 130 N.J. 554 (1993).]

As we have recounted, one of the investigating officers told the jury that the wounds on Stein's thumb and hand "appeared relatively recent," and, in describing "recent," stated that "[the wounds] appeared that they would have fit with what Mr. Stein advised us that evening . . . ." A second investigating officer testified that the laces on the shoes he discovered in Stein's room "had been cut up as he described." When defendant objected to the first officer's "opinion," the judge struck it and told the jury to disregard it. Although he denied defendant's motion for a mistrial, he further instructed the jury:

Ladies and gentlemen, with respect to this it is clear from what I told you in my earlier instructions that you are the finders of fact. You are the ultimate persons who determine credibility, worth of testimony, whether a witness is being truthful or not truthful. Not the testimony or opinion of any other witness.

In regard to the matter of the comment that you just heard that was stricken by this Court as to whether or not whatever was told to this officer was in any way consistent with the age of a - of a wound or wounds, that's to be disregarded, the consistency comment.

It is for you to make the determination having heard the alleged victim's testimony as to the circumstances and as to whether or not you believe or don't believe the alleged victim.

The same is true of this officer and any of the witnesses within their areas that they come to tell you about. You assess their credibility.

You are free to accept all of their testimony, part of their testimony or none of their testimony using all the factors that I told you about on how you assess the credibility of a witness.

It is for you to make a determination, for example, whether anything that was told to the officer or the wounds were consistent or not consistent with what Mr. Stein may have told the police or may have told anyone.

That's your role as to whether someone is believable or not believable as to whether what he told somebody was consistent or inconsistent with the physical evidence.

When the second officer offered his "opinion," the judge again denied defendant's motion for a new trial but instructed the jurors:

Ladies and gentlemen, with respect to this matter as I told you a few moments prior, you are the ultimate determiners of the facts in this case. You will make assessments of credibility. You will determine what weight you will give to what testimony.

You are to disregard that last part of the officer's testimony wherein he made an observation or offered a conclusion as to the cut of the laces and anything being consistent with what he was told.

You are the ones that make the determination as to whether something he was told is consistent, not the officer. The officer, as testimony, is limited to fact and in no way is his testimony to be taken as his passing an opinion about the worth of another witness' testimony and whether it is believable or not, consistent or inconsistent. That's for you to decide.

Thus, in both instances, the jury was forcefully told to disregard the "opinion" of the officers.

In reliance upon State v. Frisby, supra, 174 N.J. 583, defendant contends the curative instructions were insufficient. We disagree. In Frisby, the defendant was convicted of endangering the welfare of her child after the child died without adult supervision. Defendant had pointed the finger at the father who, contrawise, claimed to have been out when the child died. The Court reversed defendant's conviction and remanded for a new trial for a number of reason. One of those reasons was the testimony of two officers, which conveyed to the jury hearsay statements that substantiated the father's story. The Court found the testimony "problematic" because "it recounted out-of-court statements of non-testifying witnesses to prove the truth of the matter asserted (that they were with [the father] at various locations . . . on the night of [the baby's] death). That testimony contravened N.J.R.E. 802 . . . ." Id. at 592. The prejudice to defendant was compounded by the officers improperly vouching for the credibility of the father. Id. at 593-95.

Here, neither officer conveyed hearsay statements tending to support Stein's credibility. And, although both officers did, briefly, opine that Stein's injuries and cut laces were consistent with his claims, their "opinions" did not necessarily imply that defendant was not credible, or that Stein was. Further, the trial court here gave clear curative instructions to the jury. In State v. Bunch, 180 N.J. 534, 549 (2004), despite the prosecutor's questioning of the defendant, which, inferentially vouched for the credibility of the police officers, the Court found no reversible error. The Court stated that "in view of the substantial amount of evidence of defendant's guilt and the trial court's instruction to the jury that it must determine the witnesses' credibility, we conclude that the improper statement was not 'so egregious that it deprived defendant of a fair trial.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993)). That is the case here.

The convictions are affirmed. The sentence is remanded for a Natale resentencing. We do not retain jurisdiction.

 

Serious bodily injury is defined as bodily injury ("pain, illness or any impairment of physical condition . . . ." N.J.S.A. 2C:11-1a) "which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. . . . " N.J.S.A. 2C:11-1b. Such injury was not alleged to have been inflicted upon Stein.

(continued)

(continued)

12

A-2440-04T4

December 22, 2005