STATE OF NEW JERSEY v. COREY MORRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0695-04T40695-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY MORRIS,

Defendant-Appellant.

_______________________________

 

Submitted: January 24, 2006 - Decided February 10, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 02-12-1658.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following two mistrials, defendant Corey Morris was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); and fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a). The court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The court merged the theft count with the robbery conviction and sentenced defendant to a twenty-year custodial term with a seventeen-year period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The court further imposed eighteen-month concurrent terms on the other two counts. Statutorily-mandatory fines, penalties and fees were also assessed.

On appeal, defendant challenges his convictions, claiming his involuntary absence from the courtroom during portions of the jury selection and the beginning of trial violated his state and federal constitutional rights. He also challenges his sentence as excessive, arguing the trial court failed to recognize appropriate mitigating factors and abused its discretion in imposing an extended term. Defendant further contends the court violated the Sixth and Fourteenth Amendments of the United States Constitution by imposing a sentence above the then-presumptive statutory term solely on the finding of aggravating factors other than defendant's criminal record. We affirm defendant's conviction, but remand for resentencing in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), 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) (Natale II).

We are not persuaded in the least by defendant's challenge to his convictions. A defendant has no constitutional right to engage in the manipulation of trial court proceedings such as those manifested by this record. Defendant's behavior during the course of the pretrial hearing and four-day trial was obstreperous, persistent and clearly designed to obstruct the trial proceedings. When defendant first interrupted the pretrial proceedings, he was admonished by the court and warned if his disruptive behavior continued, he would be removed for the trial. Defendant responded, "I won't come back down and you won't get me out [of] that jail because I won't come back down here."

Despite numerous warnings, defendant continued to offer unsolicited comments, interrupt and argue with the court, speak out of turn, make frequent outbursts, and engage in numerous other forms of inappropriate behavior. Judge Delehey exercised tremendous restraint and responded in a variety of appropriate ways as the situation merited: he placed his reasons on the record for declining to ask a question proposed by defendant during voir dire, ignored some of defendant's outbursts and racial comments so as not to call attention to his conduct, warned defendant he would be removed from the courtroom if he continued with his inappropriate behavior, and barred him from the courtroom for a limited period of time as a last resort.

We are satisfied the trial judge handled matters at sidebar when appropriate and firmly but respectfully addressed defendant in open court when necessary. In declining to grant defense counsel's motion for a mistrial based on defendant's outbursts in front of the jurors during jury selection, Judge Delehey referenced defendant's prior disruption of trial proceedings. The judge made it clear he was going to protect defendant's rights, but he was not going to allow defendant to disrupt and create a mockery of the proceedings, preclude being tried or create a mistrial as a result of his outbursts. Judge Delehey stated at sidebar:

THE COURT: [T]hat's probably the most disingenuous application for mistrial I have heard and the reason I say that is this: This isn't the first time Mr. Morris has done that even with you as his attorney; am I correct?

[Defense Counsel]: That's correct.

THE COURT: And we have been through this proceeding before where he has interrupted and tried to inject himself into the case; am I correct?

[Defense Counsel]: That's correct.

THE COURT: I put all of that on the record just a few minutes ago at side-bar voluntarily before you made this application, I was going to put it on the record just so that a reviewing court will understand it. Mr. Morris was previously convicted of, I believe, robbery before this Court and in that trial he acted out repeatedly and this Court exercised what it thinks was considerable restraint, didn't have him removed, didn't threaten him. The Court repeatedly told him to remain seated and make any objections through his attorney.

This is a course of conduct Mr. Morris follows. For Mr. Morris to cause the disruption and then through his attorney ask for a mistrial strikes this Court as probably about as close to absurd as we can get based on if that's the rule, that means Mr. Morris can never be brought to trial because he is never going to behave in a courtroom.

This court for its part will do everything it can to have Mr. Morris present and to proceed with the trial. The Court also is aware Mr. Morris, by acting out, is probably creating the very worst impression possible for the jury, but that's Mr. Morris' choice. It is not the Court's.

As for the admonishment of Mr. Morris, the Court simply can't sit in the chair and say nothing. These jurors are looking to the Judge to control the courtroom and Mr. Morris knows full well based upon prior history that what he is doing is disruptive and it's intended to disrupt the trial. For that reason, the Court admonished him right in the presence of the jurors and let's face it, if counsel did something [that] was truly uncalled for -- I would not expect that of either [counsel] -- but let's assume we have an attorney in a courtroom who truly acts out and is disrespectful to the Court, would you not expect the Court to respond? And here we go again, Mr. Morris is now acting out. He is seated in the chair by himself while we are at side-bar. That's the way this trial will probably unfold and there is nothing we can do about it. The motion for mistrial is denied.

When defendant's loud outbursts continued to the point where his counsel expressed a concern that his client was unable to control himself in the presence of the jurors, the trial judge was constrained to remove defendant for the balance of jury selection and made the following record:

The jurors have been excused from the courtroom. Only court personnel and Sheriff's Officers together with counsel and the defendant are present.

The Court has suffered numerous interruptions by Mr. Morris throughout the jury selection. This is not something new in the process of dealing with Mr. Morris. Mr. Morris did this at his first trial. He did it during jury selection the first time the Court attempted to select a jury in this case but had to mistry the matter. He did it during the second attempt to select a jury when the Court had to mistry the case because of the Judge's illness. It's continued to today.

The Court has attempted to explain to Mr. Morris that if he continues to interrupt, it would have him removed from the courtroom. He has chosen to talk over the Judge. When the Court spoke at side-bar with counsel, Mr. Morris continued with his monologue apparently for the benefit of the jurors both in the jury box and those constituting the balance of the panel. The Court simply cannot tolerate the interruptions any longer. In the prior trial the Court was able to ignore it, but in point of fact Mr. Morris' conduct has reached a new level of escalation and the Court simply can't even proceed with its business. For that reason, Mr. Morris will be removed from the courtroom for the balance of the jury selection. He will be returned to the courtroom for the commencement of trial tomorrow morning. If he acts out again, if there are any further outbursts, he will be quietly removed and his only other opportunity to return to the courtroom will be if he wishes to testify in his own behalf. That is the Court's ruling. The Court is forced to do this. Contrary to its strong feelings the defendant should be present, but the Court here sincerely believes this defendant is doing nothing more than trying to disrupt the judicial process.

There have been requests for mistrials made by defense counsel. The Court has denied those. It has denied those applications for mistrial because the mistrial would be brought about or the need for it supposedly by Mr. Morris' own conduct and if that is the rule, in fact the defendant can disrupt the courtroom and get a mistrial, then we can never bring a defendant to trial.

The Court bars Mr. Morris from the courtroom for the balance of the jury selection. He will be here tomorrow morning for the commencement of trial. If he acts out, he will be removed again. That's the Court's determination.

When the jury returned to the courtroom, the trial judge instructed that "no matter how disruptive [defendant] may be, he is nonetheless entitled to a fair trial, and the burden of proof still remains on the State to prove his guilt." Judge Delehey explained the reasons for defendant's absence and noted that defendant would be permitted to attend the trial but would be removed if his behavior became disruptive. The judge specifically inquired whether its ruling would interfere with any juror's ability to follow the court's instructions, and received no response indicating otherwise.

Although the court's intention was for defendant to return to court after jury selection, defendant refused to be transported to court at the appointed time that morning. Defendant then changed his mind. We discern no abuse of discretion in the court's decision to commence trial prior to defendant's tardy arrival. We are satisfied the court set forth a sufficient basis for its ruling that defendant had waived his right to be present under Rule 3:16(b) and State v. Spivey, 122 N.J. Super. 249 (1973), rev'd on other grounds, 65 N.J. 21 (1974), because of his disruptive conduct during the trial. The trial judge clearly had a "feel" for the case, and we thus defer to his finding that defendant's change of mind was merely another disruptive tactic designed to further delay his trial:

As the Court sees it, what he has done is he has changed his mind. This morning he said he wouldn't come to court. . . . Now that constitutes, in the Court's mind, knowing waiver of his right to be here. Now a couple of hours later he decides to change his mind, does the Court have to stop and start this trial every time Mr. Morris decides to manipulate all of [us] as if we are puppets? I don't think so. I don't think Mr. Morris decides when the trial starts and when it ends.

Quite frankly, if this were the first incident with Mr. Morris, this Court would have no hesitancy in saying we will give him the benefit of the doubt. But he more than used up that leniency he can expect from the Court.

Furthermore, there is no suggestion of prejudice resulting from defendant's brief absence from the courtroom during opening statements and a portion of the direct testimony of the robbery victim. We are certain defense counsel advised defendant of what occurred in his absence, and if the request had been made, the victim's testimony could have been read to him.

The court found aggravating factors three, six and nine based on defendant's extensive criminal record. It also found aggravating factor twelve based on the vulnerability of the seventy-year old victim, a cripple, and defendant's prior robbery of an elderly victim. We perceive no basis to second guess the trial court's imposition of a discretionary extended term sentence as a persistent offender under N.J.S.A. 2C:44-3a, see State v. Dunbar, 108 N.J. 80 (1987). Defendant met the statutory criteria. Moreover, at the time of sentencing, defendant had already amassed a criminal history that included seventeen adult arrests, which resulted in five Superior Court convictions for drug-related matters, resisting arrest, assault on a police officer and robbery. Notably, at the time of sentencing on the present charges, defendant was serving a sixteen-year sentence with a thirteen-year parole disqualifier on a December 5, 2003 robbery conviction. Defendant also had four pending Superior Court cases, three of which contained robbery charges.

Nor are there any constitutional infirmities to the imposition of an extended term sentence. See State v. Young, 379 N.J. Super. 498, 510-11 (App. Div. 2005) (reaffirming the holding of State v. Dixon, 346 N.J. Super. 126, 140 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), 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").

However, in Natale II, the Court held 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," and eliminated presumptive terms from the sentencing process. 184 N.J. at 466. Therefore, under Natale II, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing the applicable aggravating and mitigating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale II] decision." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The trial court sentenced defendant to a twenty-year term of imprisonment, which was in excess of the then-presumptive fifteen-year term for a second-degree offense relying, in part, on an aggravating factor other than defendant's criminal record. Defendant's case was on direct appeal to this court when Natale II was decided. Therefore, defendant is entitled to a new sentencing hearing in which the presumptive statutory term of fifteen years is not considered.

 
Conviction affirmed; remanded for resentencing.

The first mistrial occurred when a probation officer who was called as a prospective juror volunteered that he knew defendant and could identify him from the workhouse. The second mistrial occurred after jury selection had begun, and the judge became ill.

(continued)

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A-0695-04T4

February 10, 2006