STATE OF NEW JERSEY v. WAYMON CHESTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6760-03T46760-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYMON CHESTER,

Defendant-Appellant.

_________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No.01-10-4261.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Gary A. Thomas, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

This is one of three appeals by defendant Waymon Chester that were calendared before us back-to-back. In this appeal, defendant appeals from his conviction for carjacking, N.J.S.A. 2C:15-2, a crime of the first degree. At the time of sentencing, the trial court sentenced defendant for a number of additional convictions that had been entered. It imposed a term of fifteen years for carjacking, with a five-year period of parole ineligibility, to be served consecutively to the sentence imposed upon defendant under Indictment #01-05-2155 and consecutively to a certain portion of the balance of defendant's sentence under Indictment #01-10-4261. The trial court noted in the judgment of conviction its intent that defendant serve an aggregate sentence of sixty-five years, with a forty-two year period of parole ineligibility. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The grand jury returned a seventeen-count indictment against defendant based upon events occurring on May 14, 2001, in Bloomfield and Newark. In mid-afternoon on May 14, Benjamin Rivera and his friend Nilesh Patel drove to Bloomfield to visit another friend, Ray DeGuzman. Benjamin drove his father's car, a 1993 gray BMW. Benjamin pulled the car into the driveway and Nilesh headed toward the house. Benjamin then started up the walk as well, carrying a rotor he had retrieved from the trunk. He noticed two black males walk past him. Before he reached the house, he was grabbed from behind. He threw the car keys to the ground, together with the rotor. One of the men grabbed the keys and ran toward the car; the other man threw Benjamin to the ground and punched him in the face. The two men then got in the car and drove away.

Later that afternoon, two men entered a health food store on Halsey Street in Newark operated by Lenzy Hall. Mr. Hall was there, together with his daughter Toshia. The two men robbed the contents of the store's cash register and took Toshia's jewelry and the money in her father's wallet. Then, both men repeatedly sexually assaulted Toshia in her father's presence. Later, a friend of Lenzy's, Michelle Bey Russell, arrived on the scene. The men robbed her of her jewelry as well and then fled in a BMW. An employee of a nearby Chinese restaurant noticed the two men running from the store and took down the car's license plate number. The car was found abandoned two days later in another section of Newark. Defendant's fingerprints were found on the car.

Before the car was recovered, Nilesh and Benjamin met with a police artist who, based upon their descriptions, prepared a composite sketch. The police also showed photo arrays to the two, and each selected the picture of an individual named Andre Moore. After the car was recovered with defendant's fingerprints, the police prepared new photo arrays, which included defendant's picture. This time, Nilesh was unable to make an identification, but Benjamin selected defendant's picture.

At trial, Nilesh did not identify defendant as being involved in the carjacking. Benjamin, however, did identify defendant as the man who had grabbed the keys and ran to start the car.

Defendant was apprehended several days after the car was recovered. Eventually, he gave a voluntary statement recounting his involvement in the events on Halsey Street. He maintained in that statement that he did not know that his confederate was armed with a gun and that he had only participated in the sexual assault upon Toshia because he was afraid to refuse. In his statement, he denied involvement in the carjacking that had occurred several hours before the robbery and rape in Newark.

Some time before defendant's trial commenced, his attorney made a motion to sever the counts relating to the carjacking incident in Bloomfield from those relating to the later incident that occurred in Newark. Based upon the inflammatory details of the latter incident, the trial court granted the motion, concluding that a jury hearing the details of what happened to Toshia would find it difficult to consider impartially the charges relating to the carjacking.

Shortly before the trial got underway, the State moved for permission to present evidence relating to the robberies in Newark, contending that it needed the testimony of Mr. Hall and his daughter, as well as of Ms. Russell to identify defendant. After argument, the trial court granted the motion but ruled that the State could not present any of the details of what had occurred and specifically could not bring in the sexual assaults.

On appeal, defendant raises the following contentions.

POINT I: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY REGARDING THE DEFENDANT'S INVOLVEMENT IN A ROBBERY PURSUANT TO EVIDENCE RULE 404(b).

POINT II: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE EVIDENCE ADMITTED AT TRIAL PURSUANT TO EVIDENCE RULE 404(b). (NOT RAISED BELOW)

POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN A STATE'S WITNESS GRATUITOUSLY VOLUNTEERED TESTIMONY CONNECTING THE DEFENDANT WITH THE SEXUAL ASSAULT OF ANOTHER STATE'S WITNESS. (NOT RAISED BELOW)

POINT IV: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF IRRELEVANT AND PREJUDICIAL TESTIMONY ELICITED BY THE STATE CONNECTING THE DEFENDANT WITH THE USE OF DRUGS. (NOT RAISED BELOW)

POINT V: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO ISSUE AN APPROPRIATE LIMITING INSTRUCTION TO THE JURY REGARDING THE TESTIMONY ELICITED BY THE STATE ASSOCIATING THE DEFENDANT WITH THE USE OF DRUGS. (NOT RAISED BELOW)

POINT VI: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT. (NOT RAISED BELOW)

POINT VII: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE DEFENDANT'S PHOTOGRAPHS UTILIZED IN THE VARIOUS PHOTOGRAPHIC ARRAYS SHOWN TO AND IDENTIFIED BY FOUR WITNESSES FOR THE STATE. (NOT RAISED BELOW)

POINT VIII: THE 15 YEAR TERM IMPOSED ON COUNT II WAS UNCONSTITUTIONAL SINCE IT[] EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

POINT IX: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We reject these contentions and affirm.

I

Evidence Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b).]

The Supreme Court has addressed the significance of N.J.R.E. 404(b) on several occasions.

This rule seeks to guard a defendant's right to a fair trial by avoiding the danger that a jury might convict the accused simply because the jurors perceive him to be a "bad person." Evidence of prior wrongs and past crimes may be admissible, however, as evidence on relevant issues such as motive and intent.

Evidence of past crimes does not automatically become admissible just because it is relevant . . . . In each case the trial court must weigh the probative value of the evidence against its prejudicial effect . . . . If the probative value of the evidence is outweighed by the threat of prejudice, the evidence should be excluded . . . . The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.

[State v. Ramseur, 106 N.J. 123, 265-66 (1987) (internal citations omitted).]

Having carefully reviewed the trial record in this matter, we see no reversible error in the decision of the trial court allowing the prosecution to present evidence of the robberies at 55 Halsey Street nor in the manner in which that evidence was presented. We reach this conclusion for several reasons.

First, we agree that the evidence was relevant to the issue of identification. Nilesh Patel was unable to identify defendant as having been involved in the carjacking. Although Benjamin Rivera did identify defendant, his testimony in this regard was subject to challenge in light of the fact he had initially selected a picture of another individual as the man who had taken the keys and driven off in the car.

In opposing the prosecution's motion to admit this evidence, the defense contended the evidence was unnecessary because defendant's fingerprints had been located on the car. The car, however, was not discovered until several days after the carjacking, and absent testimony about the robberies, there was no proof placing defendant in the car on the day it was carjacked. Indeed, defense counsel pointed to that weak link in his summation, contending that the most the State had proven was that defendant had some involvement with the car at an indeterminate point after it had been stolen in Bloomfield.

Contrary to the defense's suggestion, the State could not rely solely on the testimony of Donald Sowell, who saw the men run from Hall's store, get in the BMW and drive away. Although Sowell may have memorized the license plate number, he insisted the car was black. The car taken in Bloomfield was described as gray and the car recovered as silver.

In addition, Toshia Hall and Michelle Bey Russell both testified that the men who robbed them asked them if they had a car; both said they did not. We agree with the State that it was entitled to argue to the jury, based on that testimony, that the men in the shop were seeking another car so they could abandon the car they had taken just a few hours earlier.

Finally, the trial court at several points in the trial, commencing with its preliminary remarks to the jury, gave careful limiting instructions, explaining to the jury how it could use this evidence and how it could not. It included in its instructions an explicit instruction that the jury could not infer from having heard such testimony that defendant had a tendency to commit criminal acts. State v. Reddish, 181 N.J. 553, 611 (2004) (noting "[a]n explicit instruction that the jury should not make any inferences about defendant's propensity to commit crimes is an essential point to be made in the limiting instructions"). The jury is presumed to follow a trial court's limiting instructions. State v. Manley, 54 N.J. 259, 270 (1969); State v. Murray, 240 N.J. Super. 378, 390 (App. Div. 1990).

II

During the course of the carjacking trial, the State called as a witness, Donald Sowell, who had seen the two men run from the shop and enter the BMW. During the course of Sowell's testimony, the following colloquy occurred.

Q. And, when you went to -- you went into the store itself? Was the door opened, sir?

A. When I ran to the store, the door was opened but it was nobody in the front. And I thought that was kind of strange.

So I opened the door and went in and when I yelled Lenzy's name, that's when his daughter started screaming and that's when Lenzy started hollering for help. Said, they said somebody robbed me. They robbed me and raped my daughter.

There was no objection and no request for a curative instruction. No further comment in that regard was made during the course of the trial. Defendant contends on appeal that Sowell's volunteered comment, which exceeded the strict guidelines earlier set down by the trial court, mandate a reversal of his conviction.

While Sowell's comment was unfortunate, we decline to reverse defendant's conviction on the basis of that one remark. Defendant's trial lasted three days, with the jury deliberating on the fourth day. Over the course of the trial, the prosecution presented fifteen witnesses. We cannot conclude that this one word led the jury to a result it otherwise would not have reached. Our judgment in this regard is fortified by the fact that the jury acquitted defendant of conspiracy while convicting him of carjacking. If Sowell's remark had unfairly inflamed the jury against defendant, it would have convicted him on both counts.

III

Defendant's next two contentions revolve around evidence at the trial referring to defendant's marijuana use. Defendant first contends that evidence deprived him of a fair trial. Defendant made a similar contention in A-6761. We reject the contention here, as we did in the companion appeal. We conclude, as we did in A-6761, that the evidence relating to defendant's drug use was properly admitted as res gestae. It went directly to the identification testimony proffered by Toshia Hall and her father. And, as we pointed out earlier with regard to the testimony of Donald Sowell, the nature of the jury's verdict shows that defendant was not prejudiced.

Defendant's second contention with regard to evidence of his use of marijuana is that the trial court erred in not giving a limiting instruction. However, as we noted in A-6761, a limiting instruction is not required in terms of evidence admitted as part of the res gestae of an event. State v. Martini, 131 N.J. 176, 242 (1993); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).

IV

Defendant's next contention mirrors one made in A-6761, that reference to his fingerprints having been found in the Automated Fingerprint Identification System, unfairly linked him with prior criminal conduct. Our Supreme Court has rejected such an assertion. State v. Dancyger, 29 N.J. 76, certif. denied, 360 U.S. 903 (1959).

V

We also reject defendant's next contention, that the trial court's failure to sua sponte instruct the jury that it should draw no negative inferences from the police having a picture of defendant available to construct a photo array constitutes plain error. We note that at no point during the trial was there any reference to a "mug shot." Moreover, not only did defense counsel not request such an instruction, but if the court had given one sua sponte, it might have detracted from defense counsel's summation, which stressed that Nilesh and Benjamin originally selected a picture of someone who, in fact, had no involvement in the incident.

VI

The final issue defendant raises relates to his sentence, which for carjacking was fifteen years, with a five-year period of parole ineligibility. Defendant makes two assertions: 1) that the sentence violates the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005), and 2) that the sentence itself is manifestly excessive. As to the latter assertion, it does not warrant discussion in a written opinion. R. 2:11-3(e)(2).

As to the former, our review of the sentencing transcript reveals no violations of Blakely/Natale. In the course of imposing sentence for each of the convictions, the trial court distinguished defendant's conviction for carjacking and the balance of his convictions under this indictment when it described the aggravating factors it employed in determining an appropriate sentence. In selecting a sentence term for carjacking, the trial court employed only aggravating factors 3, 6 and 9, the so-called recidivist factors. It did not use any aggravating factors which had not been settled by the jury's verdict in determining a fifteen-year prison term was warranted.

In addition, as the trial court noted at sentencing, the crime of carjacking carries a sentencing range of ten years to twenty years, but has no presumptive term. We disagree with defendant's analysis of our opinion in State v. Zadoyan, 290 N.J. Super. 280 (App. Div. 1996). We did not there state that the mandatory minimum of ten years is the equivalent of a presumptive term. We noted only that a sentence for carjacking should be adjusted in terms of the particulars of the form of carjacking being considered by the trial court.

Defendant's conviction and sentence are affirmed.

 

(continued)

(continued)

14

A-6760-03T4

October 27, 2005