STATE OF NEW JERSEY v. DERIC ROWE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7131-03T47131-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERIC ROWE,

Defendant-Appellant.

__________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, No. 02-11-1485.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jay L. Wilensky, Assistant

Deputy Public Defender, of counsel and on

the brief).

Robert D. Bernardi, Burlington County Prosecutor,

attorney for respondent (Jennifer B. Paszkiewicz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for robbery, N.J.S.A. 2C:15-1a(2), and carjacking, N.J.S.A. 2C:15-2a(2), both crimes of the first degree. A jury found him guilty of robbery but was unable to agree upon a unanimous verdict on carjacking. At sentencing, the trial court imposed an extended term of thirty years for robbery, subject to the parole ineligibility provisions of N.J.S.A. 2C:43-7.2 (No Early Release Act or "NERA"), and dismissed the count for carjacking. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.

On the afternoon of September 5, 2002, Elizabeth Cook, then seventy-six years old, went to the bank. After completing her business inside, she walked toward her car, which she had parked in the bank's lot. As she opened the car door and tossed her purse onto the passenger seat, a man approached her from the rear, held a hard object to her back and told her to get into the car. Ms. Cook thought the man had a gun and she began to scream; the man quickly walked away. Ms. Cook looked toward the man and yelled at him, "What's the matter, what are you trying to do to me?" She noted that he was wearing black pants and a hat with a visor that was hanging down in the back. He got into a nearby car and drove away. She also saw another man standing across the parking lot.

Ms. Cook got into her own car. She said she was too shaken to go to the police and drove home, which took only a few minutes. Her son-in-law was there and, crying, she told him what had happened to her. He called the police who came and took her statement.

The State also presented the testimony of Gary Shivers, who had parked his car in the bank's lot and walked toward the bank. He saw a small blue Honda that had only partially pulled into a stall in the bank lot. He then heard a woman scream and saw a man walking toward the blue Honda. Shivers said the man was wearing a heavy jacket, which he thought unusual for a warm September day. When the man got to the Honda, Shivers saw him trying to stuff a handgun into a pocket. Shivers said he saw the handle of the gun, not the barrel. The man got into the car and drove away, but as he did so, Shivers noted the car's license plate number and wrote it down. After he finished his business at the bank, he drove to the police station to report what he had seen.

Defendant was apprehended later that day. A search of his car turned up a small orange cap of the type placed on the barrels of toy plastic guns to signify clearly they are not real weapons. The police returned to Mrs. Cook and took her for a drive-by, in which she identified defendant.

Defendant testified on his own behalf. He admitted he encountered Ms. Cook in the bank parking lot but said their meeting was entirely innocent. According to defendant, he had parked his car and was walking to pick up some Chinese food from a nearby Chinese restaurant when he bumped into Ms. Cook. He said she made a remark to him which he interpreted as a racial slur. He was angered by this and responded with a racial remark of his own. He got into his car and drove away without going to the restaurant. He was stopped by police as he arrived at his apartment complex. By its verdict, the jury rejected defendant's testimony.

On appeal, defendant raises the following issues:

POINT ONE

THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY IMPROPERLY CHARGING THE JURY AS TO CARJACKING, NECESSITATING REVERSAL. U.S. Const. Amend. XIV; N.J. Const. (1947), Art. 1, par. 10.

POINT TWO

THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL HEARSAY TESTIMONY CONCERNING THE ALLEGED CRIME, NECESSITATING REVERSAL. U.S. Const., Amend. VI, XIV; N.J. Const. (1947), Art. 1, par. 10. (Partially Raised Below).

POINT THREE

THE STATE COMMITTED SIGNIFICANT AND PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S. Const. Amend VI, XIV; N.J. Const. (1947), Art. 1, par 10. (Partially Raised Below).

POINT FOUR

THE EXTENDED-TERM SENTENCE IMPOSED ON DEFENDANT IS IMPROPER AND ILLEGAL, BECAUSE IT WAS NOT SUPPORTED BY THE REQUISITE FINDINGS OF FACT AND THE REQUISITE FACTS COULD NOT PROPERLY BE FOUND; AND BECAUSE THE EXTENDED TERM VIOLATES THE PRINCIPLES OF BLAKELY v. WASHINGTON. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. 1, Par. 9.

A. The Extended Term Is Insufficiently Supported.

B. The Extended Term Violates the Principles of Blakely v.Washington.

Defendant posits his first argument upon State v. Christener, 71 N.J. 55 (1976). In that case, the defendant was convicted of manslaughter in connection with the shooting death of John French. Id. at 58. French and his wife had a tumultuous relationship, which led to their eventual separation and the initiation of divorce proceedings. Id. at 59-61. After the couple's separation, defendant developed a relationship with French's wife, and she and her daughter moved into the defendant's trailer. Id. at 59-60. French had on occasion assaulted his wife, and efforts to obtain protection from the police had been unsuccessful. Id. at 60-61. In the early morning hours of a Sunday, French came to the defendant's trailer and began to bang on the door. Id. at 61. When the defendant would not admit him, French began to pound more heavily. Id. at 61-62. The defendant called the police and informed French of that, hoping he would leave. Id. at 62. French was not deterred, however, and he eventually pried off the screen door. Ibid. The defendant again repeated that the police were on their way. Ibid. French continued his attack and managed to break through the wooden door and enter the trailer. Ibid. During the course of French's assault, the defendant had retrieved a shotgun from another room. Ibid. The defendant fired the gun, intending to wound French, but French died from the shotgun blast. Id. at 62-63. The trial court instructed the jury on first- and second-degree murder and manslaughter, and the jury convicted the defendant of manslaughter. Id. at 63. The Supreme Court, however, set aside defendant's manslaughter conviction, finding there was insufficient evidence in the record to support a conviction of first-degree murder. Id. at 66.

Noting the "basic proposition of criminal law [that] a trial court may not instruct a jury as to the elements of a crime for which there is insufficient evidence to support a conviction," id. at 67, the Court held that the defendant was prejudiced by the trial court's action in permitting the jury to deliberate on murder in the first degree because of the real possibility that it led the jury to reach a compromise verdict. Id. at 69-70.

There is not, however, a blanket rule in New Jersey that if a trial court permits a jury to deliberate on a crime for which the record contains insufficient evidence to support a conviction, a reversal must follow. In State v. Thomas, 76 N.J. 344 (1978), the Court explained that its opinion several years earlier in Christener "does not stand for the proposition that reversal is mandated every time a judge charges a jury about a crime for which there may be insufficient evidence to support a conviction." Id. at 365. Rather, a defendant asserting that the trial court erred in that regard must establish prejudice. Ibid.

In State v. Moore, 330 N.J. Super. 535, 543 n.3 (App. Div.), certif. denied, 165 N.J. 531 (2000) (holding that trial court properly set aside jury verdict of guilty for receiving stolen property and substituting offense of joyriding), we recognized that Christener should not be interpreted as holding that charging an unproven crime "is ipso facto reversible error. . . . a requirement that the overcharging must have caused some prejudice . . . [is] implicit in Christener."

Having set forth these general principles, we turn to the matter at hand, in which our first task is to determine whether the evidence presented at trial was sufficient to support a charge of carjacking. Defendant was indicted for carjacking under N.J.S.A. 2C:15-2a(2), under which a person commits carjacking if, in the course of committing an unlawful taking or an attempt to commit an unlawful taking of a motor vehicle, he "threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury."

In our judgment, the trial court correctly concluded, after reviewing all the evidence presented during the State's case, that a jury could rationally conclude that defendant had committed the crime of carjacking. This evidence included Ms. Cook's testimony that she felt a hard object pressed into her back and that defendant told her to get into the car, whereupon she screamed in fright. Gary Shivers testified that he saw defendant trying to stuff a handgun into his pocket before driving away. In analyzing this evidence, the State is entitled to "the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." State v. Reyes, 50 N.J. 454, 458-59 (1967). A jury could reasonably conclude from that evidence that defendant threatened Ms. Cook with what she perceived to be a gun while he was in the process of attempting to take control of Ms. Cook's car. Because the evidence could support a conviction for carjacking, the trial court did not commit reversible error in sending that offense to the jury.

Defendant's next argument revolves around one portion of the testimony of Police Officer Richard Spitler of the Mount Holly Police Department. Officer Spitler was dispatched to Ms. Cook's residence, evidently in response to the phone call of her son-in-law. He described her demeanor upon his arrival as "excited." Officer Spitler testified that he asked her what had happened, and he was permitted to testify, without any objection, to her response. According to Officer Spitler,

[s]he advised me she was leaving the First Union Bank, walked over to her vehicle, a 1995 Ford Taurus that was parked in the bank parking lot. When she got to the door she attempted to unlock her door when someone walked up from behind her, she stated from her left approximately two parking spots away from her and placed something to her back and told her to get into the car.

Defendant now urges that the admission of this hearsay testimony mandates that his conviction be reversed. In our judgment, this case is analogous to State v. Cotto, 182 N.J. 316 (2005), in which the Supreme Court noted that the trial court should not have permitted an investigating officer to repeat what two robbery victims related to him when he responded to their apartment. The Court stated:

[T]he sisters' statements in response to police questioning constituted 'narratives of a past occurrence' and not statements 'exclamatory, and coincident with the happening of the' robbery. We have traditionally held such statements are not sufficiently spontaneous to assure reliability . . . .

[182 N.J. at 330 (citation omitted).]

Although we concur that this testimony should not have been presented in this manner, we do not agree that its receipt calls for a reversal of defendant's conviction. Officer Spitler's testimony did not present to the jury any information that was not already before it through Ms. Cook's own testimony, about which she had been thoroughly cross-examined. Defendant's attorney, moreover, attempted through cross-examination of Officer Spitler to demonstrate certain weaknesses in Ms. Cook's alleged recitation of what had occurred. Cotto, supra, 182 N.J. at 331. We are unable to conclude that this testimony constitutes plain error, i.e., it does not cause us to have a reasonable doubt that it led the jury to a result it otherwise would not have reached. State v. Branch, 182 N.J. 338 (2005). That this is so is demonstrated by the jury's failure to convict defendant of carjacking.

Defendant's third argument revolves around certain comments by the prosecutor in his opening and closing statements. As with the prior argument, there was no objection posed at trial, and we, thus, analyze the record to determine if plain error occurred. R. 2:10-2.

Prosecutors are expected to present their cases vigorously and forcefully. State v. Frost, 158 N.J. 76, 82 (1999). They must also, however, "refrain from improper methods calculated to produce a wrongful conviction." Id. at 83 (quoting State v. Farrell, 61 N.J. 99, 105 (1972)). An appellate court reviewing a trial court in the face of an allegation of prosecutorial misconduct must determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. A reviewing court must consider a variety of factors, including:

(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.

[Ibid.]

If defense counsel did not object at trial, a reviewing court may infer that the remarks challenged on appeal were not perceived as prejudicial when they were made at trial. Id. at 84. A prosecutor's closing argument must be confined to "a review of, and an argument on, the evidence," id. at 88, and must not indulge in either personal opinion, Ibid., or disparage the defense or defense counsel. Id. at 86. Further, while a prosecutor may properly challenge a defendant's credibility, he may not do so by suggesting that defendant had an opportunity to tailor his testimony by sitting through the trial. State v. Daniels, 182 N.J. 80, 98 (2004).

In his opening remarks, the prosecutor told the following to the jury:

As you learned yesterday during jury selection, Elizabeth Cook was 76 years old on the day this incident happened. Tom [Brokaw] wrote a book a few years ago called The Greatest Generation. . . . It talks about that generation of people who have lived through unparalleled times, unprecedented events. Economic hardship, world unrest, a lot of things that a generation like myself can't even imagine. She immigrated to America on a boat, she lived through World War II, Vietnam, Korea . . . and 9/11, things a lot of us can't imagine living through all those things . . . . But she'll tell you that the scariest thing that ever happened in her life happened a short distance from her home on a beautiful late summer afternoon in Mount Holly.

Although no objection was interposed at the time, defendant now complains that these remarks served improperly to contrast Ms. Cook with the defendant as the worthier, more credible of the two. We are satisfied, however, that any potential for prejudice these remarks may have possessed was dissipated by the trial court's forceful curative instruction which it delivered as part of its general charge. Thus, the trial court told the jury:

We heard when this case started in opening statements and again in closing statements about Miss Cook's historic background, the things she's lived through and counsel have clearly indicated that many of us have lived through a lot of things. The history of a particular person alleged to be a victim does not impact on September 5, 2002, so you can't consider that.

It is settled that juries are presumed to follow a court's limiting instructions. State v. Manley, 54 N.J. 259 (1969).

Defendant complains of several aspects of the prosecutor's summation. Certain of the remarks, we agree, were improper. The prosecutor told the jury:

How do we get to this place in the world where two people, two honest and decent people just doing their duty, come in and testify and a convicted felon gets on the stand and says it's all wrong, it's all wrong, they're wrong, cops are wrong, where do we get to the place in the world where that can happen? How do we get there? I always tease my wife, I say I went to bed one night and I woke up and the world was different . . . . But on a more serious note, when did the world change that this guy gets on the stand, tells a ridiculous story for obvious reasons and anyone would think for a minute that that would trump these two people who never met each other, never talked to each other, and have absolutely no reason to lie? How do we get there? How do we get there?

While a defendant's prior criminal record is a proper factor to weigh in assessing his credibility as a witness, that testimony is not automatically less credible because the defendant has had involvement with the criminal justice system. The trial court, however, correctly explained the matter to the jury. Further, the prosecutor's characterization of defendant's testimony as "a ridiculous story" contravened the principle that a prosecutor should not disparage the defense.

The prosecutor closed his summation in the following way:

You know, just in closing, we don't lock our doors at night because of Al-Quaida or people far away, some land that we see on a flickering TV screen. We lock our doors because of fellow Americans who prey on people and take advantage of the vulnerable. That's why we lock our doors cause we're vulnerable, whether we're young or old, with gray hair, blond hair or black hair. In a lot of ways we're all vulnerable. Mrs. Cook was vulnerable. You don't need to be a genius to know under the circumstances of this case that she's vulnerable and he knew she was vulnerable and that's why we're here, in part.

Although the prosecutor should not have invited the jury to dwell upon its fears in this way, we do not deem the remarks such as to have deprived defendant of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987).

The final issue presented relates to defendant's sentence. Defendant had an extensive criminal history, and the State sought the imposition of a discretionary extended-term sentence under N.J.S.A. 2C:44-3a. There is no doubt that defendant, who had seven prior convictions, was eligible for an extended-term sentence. Defendant makes two arguments: that the manner in which the trial court imposed an extended-term sentence was improper and that imposition of such a sentence violated the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We agree with the first proposition, but not the second.

In State v. Dunbar, 108 N.J. 80 (1987), the Supreme Court discussed at length the procedures and criteria governing extended-term sentencing for persistent offenders. The Court explicitly stated that it is essential to such an extended-term sentence that the court set forth its determination that "commitment [of the defendant] for an extended term is necessary for the protection of the public." Id. at 90. The sentencing court here, however, made no such finding but merely noted the existence of defendant's prior record. It is the nature and quality of that record, however, that must be analyzed to determine whether the protection of the public calls for an extended term. We are, thus, compelled to remand the matter to the trial court for purposes of engaging in that analysis and resentencing.

We reject defendant's position that an extended-term sentence in this context violates Blakely, supra. N.J.S.A. 2C:44-3a relies solely upon defendant's prior criminal record to define eligibility for an extended-term sentence and, in our judgment, fits squarely within the so-called "recidivist factor" recognized by the Blakely court. Further, the critical step of establishing that protection of the public requires an extended-term sentence does not, in our judgment, involve judicial fact finding regarding a "core criminal offense element." Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

This court had the occasion, prior to Blakely, to consider the impact of Apprendi upon extended-term sentencing. Writing for the court, Judge Stern noted that:

[t]he prerequisites to an enhanced sentence under N.J.S.A. 2C:44-3a are related to the issue of 'recidivism' and may be found by the judge without presentation to the jury. The statute requires findings 'by a preponderance of the evidence.' The required fact-finding does not relate to the present offense or its elements . . . . [T]he factual prerequisites to an extended term under N.J.S.A. 2C:44-3a are 'requirements that fall squarely within the range of facts traditionally found by judges at sentencing and is sufficiently interwoven with the facts of the prior crimes that Apprendi does not require' them to be presented to the jury.

[State v. Dixon, 346 N.J. Super. 126, 140 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002) (citations omitted).]

We again considered the question after the decision of the United States Supreme Court in Blakely, supra, and after the decisions of our own Supreme Court in State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005). Judge Stern, again writing for the court, stated, "[w]e adhere to our prior holdings that the 'prior conviction' exception permits imposition of an extended term under the persistent offender statute, N.J.S.A. 2C:44-3a. N.J.S.A. 2C:44-3a is clearly a recidivism statute and the judicial fact-finding thereunder is based on the 'prior conviction' exception." State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005).

In Young, we remanded the matter to the trial court for resentencing in light of State v. Natale, supra, because the trial court had imposed an extended-term sentence beyond the presumptive. Here, on the other hand, defendant's extended-term sentence did not exceed the presumptive extended sentence, and no remand is called for on that basis.

 
Defendant's conviction is affirmed, and the matter is remanded for resentencing.

(continued)

(continued)

17

A-7131-03T4

November 22, 2005