STATE OF NEW JERSEY v. KIERON JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4684-03T44684-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KIERON JACKSON,

Defendant-Appellant.

__________________________________

 

Submitted: October 31, 2005 - Decided:

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0079.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of six counts of first degree robbery contrary to N.J.S.A. 2C:15-1 (Counts Four, Seven, Sixteen, Twenty, Twenty-three, and Twenty-seven); one count of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7) (Count Nineteen); and one count of second degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Twenty-eight). The jury acquitted defendant of one count of armed robbery. At sentencing, the trial judge merged the conspiracy conviction (Count Twenty-eight) with one of the first degree robbery convictions (Count Twenty-seven) and imposed a term of twenty years in prison subject to an 85% NERA parole disqualifier on each robbery conviction. The sentences on Counts Seven, Sixteen, Twenty, Twenty-three and Twenty-seven are concurrent to each other but consecutive to the term imposed on Count Four. On Count Nineteen, the judge imposed a five-year term of imprisonment concurrent to Counts Four, Seven, Sixteen, Twenty, Twenty-three, and Twenty-seven. Defendant is serving an aggregate term of forty years, all of which is subject to NERA. The appropriate fines, penalties and assessments were also imposed.

The convictions stem from a string of armed robberies of Chinese restaurants in Jersey City and Bayonne in November and December 2001. One restaurant was victimized four times.

The first armed robbery occurred on November 28, 2001, at the Yoan Fong restaurant in Jersey City. Tony Zhu was working at the restaurant when defendant entered with a gun and demanded money. Zhu testified that defendant pointed the gun at the employees and said "take the money out, take the money out." Zhu gave defendant money from the register, and defendant left. Zhu did not see defendant's face on that occasion.

Defendant returned to Yoan Fong two days later. Zhu was again working at the restaurant. He testified that defendant came in, pointed a gun at him, and demanded money. Zhu gave defendant the money from the register and defendant left. Defendant returned to Yoan Fong again on December 6, 2001. On this occasion, defendant climbed over the counter near the front of the restaurant and came to the back where the employees were eating. Defendant pointed a gun at the employees and demanded money, and again Zhu provided money from the register and defendant left.

Zhu testified that during the November 30 and December 6, 2001 incidents, he was able to see defendant's face in the course of the robberies. Zhu also recognized defendant as a customer in the restaurant "once or twice." He was able also to identify defendant in a photo array and at trial.

On the evening of December 22, 2001, defendant returned to Yoan Fong. On this occasion, Yun Yang, a deliveryperson for the restaurant, was on his bicycle returning to the restaurant after making a delivery. Defendant stopped Yang on the sidewalk in front of the restaurant, demanded money, and struck Yang on the forehead and the back of the head with a gun. Yang fell to the ground, and defendant then pointed the gun at Yang's right temple and neck. Yang then provided defendant with the twenty dollars he had in his possession. Defendant searched Yang for more, and upon finding nothing, left. Yang testified that he had seen defendant in the restaurant "many times," and identified defendant from a photo array and at trial.

Also on December 22, 2001, defendant robbed the Cheun Xing restaurant in Jersey City. At the time of the robbery, Li Li Xu, the owner of the restaurant, was in her second-floor apartment directly above the restaurant. Xu observed the robbery occurring via a monitor in her apartment that displayed the video of a security camera in the restaurant. Upon seeing the robbery in progress, Xu ran downstairs with a phone, saw defendant leaving, and called the police. Xu authenticated the video recording at trial before it was played for the jury.

On December 28, 2001, defendant committed robberies number six and seven. First, at approximately 10 p.m., defendant entered the Neptune Caf in Jersey City, also owned by Li Li Xu. Xu was working that evening, and observed defendant enter, armed with a gun. Although defendant covered his face with a mask, Xu saw defendant's clothing, including a black jacket with a pattern on the back. Xu watched as defendant struck two of her employees, took money, and left the restaurant. Xu also authenticated a video of this robbery, taken by a security camera in the restaurant, which was likewise played for the jury.

Defendant's second robbery of the evening took place at the Kung Hing restaurant in Bayonne. At approximately 11 p.m., Xiaomin Chen and his sister were working in the Kung Hing restaurant when defendant entered, wearing a ski mask and holding a gun. According to Chen, defendant ran into the restaurant, ordered Chen to open the cash register, hit Chen on the head with the gun's handle, and again ordered Chen to open the register. When Chen complied, defendant grabbed the cash and ran. Chen testified at trial that defendant was wearing blue jeans during the robbery and that he was sure that defendant was the man that robbed the restaurant.

On December 29, 2001, the day after the last two robberies, Officer Al Roesinger of the Bayonne police and his partner were on patrol when they observed a black Honda Accord double-parked on the street with no occupants. A mobile computer check revealed that the plate was assigned to a white Oldsmobile rather than a black Honda, so the officers checked the vehicle identification number, called for back-up units and waited for the driver to return to the vehicle. About five minutes later, four people entered the vehicle. Before the car drove off, the officers approached and conducted a motor vehicle "stop." The officers observed a male and a female juvenile in the rear of the vehicle, defendant in the driver's seat, and co-defendant Lance Rose in the passenger seat. The officers placed the individuals under arrest and searched the vehicle. Rose and the male juvenile were in possession of handguns, one of which was a fake. The search also revealed a ski mask and a black BB gun. The BB gun was discovered between the driver's seat and the console of the vehicle.

At the time of defendant's arrest, he was wearing a black jacket. Li Li Xu identified the jacket as the same one worn by the man who robbed the Neptune Caf . After defendant's arrest, he was taken to the Bayonne Police Department Detective Bureau and interviewed by Detective William Nide. Defendant was informed of his rights, and signed a waiver statement. Defendant then provided Detective Nide with a formal statement. Defendant's statement described the robbery of the Kung Hing restaurant. After defendant gave his statement to Detective Nide, he was again advised of his rights, waived them, and provided another formal statement to Detective George Moore of the Jersey City Police. In this second statement, defendant confessed to the robbery of the Neptune Caf . Defendant admitted to wearing a black jacket with a sword on the left arm and the word "Avirex" on the back, and hitting someone "near the head area" during the robbery. Defendant also admitted to committing other robberies of Chinese restaurants using a black BB gun. Defendant stated that he was the get-away driver for the robbery of the restaurant on Kennedy Boulevard and Winfield Avenue, and the black BB gun was used in that robbery as well.

On appeal, defendant raises the following points:

POINT I

THE JUDGE SHOULD HAVE GIVEN A PROPER RULE 404(b) TYPE OF JURY INSTRUCTIONS TO PROSCRIBE THE JURY'S CONSIDERATION OF EACH OF THE INDIVIDUAL ROBBERIES AS PROOF OF THE OTHERS OR AS PROOF OF DEFENDANT'S PROPENSITY FOR CRIME. (Not Raised Below)

POINT II

THE SENTENCE IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.

A. Absence of Findings On Aggravating Factor One.

B. The Overall Balance of Factors And the Imposition of Consecutive Sentences.

C. The Apprendi/Blakely Error.

All of the robberies were charged in a single indictment and tried together before the same jury. Defendant argues that the trial of all of the charges together required the trial judge to fashion a N.J.R.E. 404(b)-style charge. In other words, the trial judge was required to instruct the jury that it must consider each charge individually based solely on the evidence that applied to each charge, not to consider the cumulative effect of the evidence of all charges in their consideration of his guilt or innocence, and not to infer he was a bad person because of the multiple events. The State responds that the trial judge's charge recognized the prejudice that can flow from the aggregation of a series of similar events and carefully instructed the jury on how it must consider the evidence to assure a fair consideration of each charge. We agree.

Defendant concedes that this issue was not raised at trial. Therefore, we review the argument as plain error. R. 2:10-2. This court may not disturb the conviction unless any error in the charge was clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).

The judge cautioned the jury repeatedly that it must consider each charge separately and that the evidence of one offense could not be used as proof of another charge. Moreover, the judge issued his initial cautionary instruction in his preliminary charge immediately after the jury was sworn. He said:

Now, the defendant stands before you . . . in many counts of the indictment found by the Grand Jury, charging him with various offenses of armed robbery, weapons charges, weapons, possession of weapons for unlawful purpose, aggravated assault, conspiracy, many different charges.

The indictment is not evidence of the defendant's guilt of those charges, it's merely a step in the proceedings to bring the matter today before you and this Court so that you may ultimately determine whether the defendant is to be found guilty or not guilty on a particular charge.

Remember, the defendant pled not guilty. He has no burden of proof, he's presumed innocent, and unless and until each and every essential element of the offense charged on the charge you're considering is proven by the State beyond a reasonable doubt, he must be found not guilty of that charge. That presumption of innocence surrounds and protects the defendant.

The judge repeated this instruction after the parties rested but before summations. He said:

And finally, remember what I said, each one of these charges, there's a separate, you gave your oath that you'd be fair and impartial, or affirmation, each one of these charges is separate and distinct. We're trying individual cases here. Simply because one is found guilty or not guilty of one charge doesn't mean that you need not render a verdict in another charge of whether guilty or not guilty that could be the same or could be different. One could be found not guilty of all charges, guilty of all charges, not guilty of s[o]me, not guilty of others. I just want to make sure you understand that. I'm sure you do, but I wanted to make sure of that.

Before his final instructions, the judge repeated his admonition that each charge must be considered separately, and the jury should avoid "cross-pollination" of evidence from one charge to another. He stated:

I just want to take a five minute break before I give you your instructions in the law, but I do want to take one exception with the State's final comment, that the evidence should lead you on each of these to guilty. That's not correct. The evidence on each case has to be considered individually to lead you to believe. In other words, if you're considering armed robbery No. 1, whatever that armed robbery is, that has no bearing on armed robbery No. 7, for example. Each one on the State's proofs as they came forth must be related to that armed robbery and not cross-pollinating it to all of them.

Then, in his final charge to the jury, the trial judge repeated these instructions. In this charge, he illustrated the point with specific reference to two of the robberies.

The witness' opportunity to view the person who committed the offense at the time it was happening, that means the time of day, where, when, the state of mind of the alleged victim, in Mr. Zhu's case as to whether he had seen the man previously or hadn't seen the man previously, also as to Mr. Yang's case as to where he had seen him previously.

As to Mr. Yang, the issue is as to whether he was dizzy or bloody or couldn't see or there was a mask, all of those things you have to determine as to whether or not it affects his ability to make the out-of-court identification.

As to Mr. Zhu, the same situation in terms of each time that he was alleged to be the victim of an armed robbery, but, of course, each one separately. You can't say well, if Mr. Zhu saw it happen to him on the 20th, then necessarily it happened on the 30th. Each one is individual.

Finally, the judge concluded his remarks as follows:

You must render verdicts individually as to each of the seven armed robberies. You must consider the evidence only as to that armed robbery as it pertains to that armed robbery.

We are satisfied that Judge Callahan was mindful of the problem now highlighted by defendant and took measures from the very beginning of the trial to assure that the jury would consider each charge separately. Notably, the jury acquitted defendant of the first robbery in the string. This acquittal strongly suggests that the jury followed the instructions of the trial judge and certainly did not allow itself to be overwhelmed by the evidence of defendant's participation in the other robberies.

A trial judge is required to fashion a charge that is sensitive to the facts of each case. State v. Savage, 172 N.J. 374, 389 (2002). This record demonstrates that the trial judge faithfully discharged this obligation. We consider the argument raised by defendant without merit and affirm the convictions.

The sentence on the six armed robbery and the aggravated assault convictions, however, must be remanded for consideration in light of State v. Natale, 184 N.J. 458 (2005) (Natale II).

To bring Title 2C sentencing in line with present constitutional interpretations, Natale II mandates that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Id. at 466. As the Court pointed out, however, criminal defendants sentenced under the prior scheme do "not have the right to a windfall sentence under an unconstitutional scheme, but only the right to a new sentencing proceeding under a constitutional one" and therefore are entitled only to a remand for a sentencing hearing "unencumbered by the presumptive term." Ibid.

Here, the judge imposed a sentence greater than the presumptive term on both the armed robbery and aggravated assault convictions. In doing so, the judge found the aggravating factors to be "the risk of reinvolvement, the strong need to deter and the prior record, and the nature and circumstance of the offense." The judge found the mitigating factors to be "remorse" and defendant's young age. With regards to both the armed robbery and aggravated assault counts, the judge found that the aggravating factors "completely and substantially outweigh the mitigating factors." The judge therefore found it appropriate to go beyond the presumptive term and sentence defendant to the statutory maximum on each of those convictions. Furthermore, in explaining the nature of the armed robberies, the judge noted that "this type of behavior is cruel, it's heinous, and absolutely needs to be deterred." In making this statement, the judge was clearly implicating aggravating factor one, "[t]he nature and circumstances of the offense, . . . including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). By imposing a sentence greater than the presumptive term based in part on an aggravating factor other than a prior conviction, e.g., the nature and circumstances of the offense, the judge violated defendant's Sixth Amendment right to a jury trial, as interpreted by our Supreme Court in Natale II. Therefore, defendant's sentences for the armed robbery and aggravated assault convictions must be reversed and remanded for resentencing as outlined in Natale II. Id. at 495-96.

On remand the sole consideration is the base term imposed on the armed robbery and aggravated assault convictions. The consecutive sentence does not implicate the rule in Natale II, State v. Abdullah, 184 N.J. 497, 512-15 (2005), and conforms with State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

 
The conviction is affirmed; remanded for reconsideration of sentence.

No Early Release Act, N.J.S.A. 2C:43-7.2.

The judgment of conviction (JOC) is inconsistent. The body of the JOC relates that the sentence on Count Nineteen is consecutive to the term imposed on Count Four but the JOC also relates that the total custodial term is forty years. The transcript of the sentence reports that the term is concurrent to all of the armed robberies. In addition, at sentencing the judge imposed a probationary term for receiving stolen property (Count Thirty-two), but this is not reflected in the JOC, and the record also reveals the charge was dismissed at the start of trial.

Defendant was acquitted of this charge.

(continued)

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A-4684-03T4

November 10, 2005