STATE OF NEW JERSEY v. CLINT WALKER

 

 
 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1052-04T41052-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

CLINT WALKER,

Defendant-Appellant.

__________________________________

 

Submitted: May 8, 2006 - Decided May 25, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1196.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, 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

A jury found defendant Clint Walker guilty of first degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Two); third degree unlawful possession of a weapon (sawed-off shotgun), contrary to N.J.S.A. 2C:39-5c(1) (Count Three); second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Four); third degree knowingly possessing a prohibited weapon, contrary to N.J.S.A. 2C:39-3b (Count Five); and second degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7b. The jury acquitted defendant of second degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1.

The judge granted the State's motion to impose a mandatory Graves Act extended term for the armed robbery conviction and after merging the conviction on Count Four with the conviction on Count Two, sentenced defendant to a term of imprisonment of fifty years. The term is subject to an 85% No Early Release Act (NERA) parole ineligibility term. The judge also imposed concurrent terms of five and three years on Counts Three and Five. Finally, the judge imposed a ten-year term of imprisonment with a five-year period of parole ineligibility for the certain persons conviction.

On January 12, 2003, at approximately 8:00 a.m., Allen Cobb, sixty-nine years old, was loading groceries into his van at the Pathmark Supermarket located on the corner of Prospect Avenue and Eagle Rock Road in West Orange. As he did so, he heard a car pull up alongside him, which he thought was odd because the parking lot was empty. The car parked parallel to Cobb's van, facing the opposite direction and was "maybe four feet" away.

After the car stopped, Cobb turned around and saw two men, later identified as defendant and co-defendant Kenneth Grady, approaching him. The man on Cobb's left took his arm, checked the pockets of Cobb's sweatsuit and took his car keys and wallet, which contained approximately $120 cash, credit cards and all of Cobb's identification. The man on Cobb's right, who was standing about three feet away, said "give me the rest of the money" and "jacked" a shotgun that protruded from under his coat. As a former Marine and hunter, Cobb was very familiar with shotguns; he noticed the shotgun was shorter than usual.

Cobb told the men that he did not have any more money. The men got into their car and drove off with Cobb's wallet and keys. Although Cobb could not identify the make of the car, he described it as grey in color with a square back. Cobb also wrote down the license plate number, KGJ89P. Cobb then went inside the market and called the police.

Officer Michael Mastras arrived on the scene approximately three minutes later. Cobb described the robbery to Mastras, provided him with the license plate number of the car, and then drove to police headquarters in his van with the use of a spare key that he kept in the van. Mastras immediately placed a notification regarding the license plate and a description of Cobb's assailants on the State Police Emergency Network (SPEN), which alerts all units to keep an eye out for the vehicle. Mastras learned that the license plate was registered to Crystal D. Braxton of 74 Finley Place in Newark. Mastras also learned that the plates were registered to a four-door silver 1985 Nissan Stanza. The registration had expired in May of 2001.

At police headquarters, Cobb spoke with Detective Joseph Spero, who took Cobb's sworn statement. Cobb provided Spero with a description of the men. Both were black males; one of the men had "crazy looking hair and the other guy was a lighter skinned male with a mustache." He also described the men as being in their twenties. Spero showed Cobb two photo books, which contained about 150 to 200 photographs of black males, but Cobb made no identification at the time.

On the same day, Spero also learned that the registered owner of the car used by the assailants was Crystal D. Braxton. Spero spoke to Braxton, who said she no longer possessed the car or the plates. Braxton explained that she originally had the plates on a 1998 Nissan Stanza, but the car became disabled in 2000 and she abandoned the car and the plates on the boarder of East Orange and Newark. Braxton received a ticket for abandoning the vehicle, which she paid, and never saw the plates again. Upon returning to police headquarters from his interview with Braxton, Spero was informed by Cobb that his ATM card had been used at Newark Penn Station and $260 had been withdrawn.

Five days later, on January 17, 2003, Spero received further information from which he learned that Clint Walker's address was the same as Braxton's. Spero also learned that Grady lived on Hickory Street in East Orange or Orange. With that information, Spero, along with his sergeant, spoke to Braxton again. Braxton told Spero that Clint Walker was her fiancé and had been residing with her for the last three years. In addition, Walker had been with Braxton when her vehicle became disabled in 2000. Braxton identified a photograph of Kenneth Grady as a friend of Walker known to her as Kareem. Braxton signed and dated the back of the photograph.

Having obtained a statement from Braxton, Spero returned to police headquarters and requested photographs of Grady and Walker for a photo array. A few days later, Spero contacted Cobb and asked him to come to headquarters and view some photographs. When Cobb arrived at police headquarters, Detective Matthew Palardy of the West Orange Police Department showed him two photo line-ups. Spero was not allowed to show the victim any photographs because he was involved in the investigation. When Palardy showed Cobb the first six-person photo array, Cobb made an identification, signed the back of the photograph and said "that's the guy who pointed the gun at me." Cobb selected a photograph of defendant. Detective Palardy then showed Cobb the second six-person photo array, at which time Cobb made another identification, signed the back of the photograph and said "that's the guy who went through my pockets or took my money." This photograph depicted co-defendant Grady.

After Cobb made the identifications, Palardy gave Spero the photographs and informed him that Cobb made two identifications. Spero learned that Cobb identified Kenneth Grady and Clint Walker. Based on that information, Spero obtained arrest warrants for both Walker and Grady on the same day. On January 23, 2003, Spero arrested Grady and Walker.

At trial, Cobb was asked to identify the defendant and co-defendant in court. When asked whether the two men in court were the men that robbed him, Cobb responded that he was "reasonably sure" that they were, but acknowledged that they looked different. He explained that "the hair is different on both men" and "[o]ne man probably looks like he gained a little weight." In addition, when asked to look at the pictures he selected from the photo array, Cobb testified that defendant was the person depicted in co-defendant's photograph and that co-defendant was the person depicted in defendant's photograph. Cobb's testimony also differed from the statement he made to Spero on the night of the incident. In his original statement to Spero, Cobb said the person on his right with the shotgun spoke first, demanded money from Cobb and then the other person went into Cobb's jacket and took out his wallet. However, at trial, Cobb testified that the man on his left, who did not have the shotgun, spoke first. The man on Cobb's right, who had the shotgun, demanded more money after the other person went through Cobb's jacket.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON PERTINENT LESSER-INCLUDED OFFENSES.

A. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT

(Not Raised Below).

B. THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT

(Not Raised Below).

POINT II

THE TRIAL VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS

(Not raised below).

POINT III

THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT THE DEFENDANT WAS THE ACTOR, THEREBY VIOLATING THE DEFENDANT'S FEDERAL AND STATE DUE PROCESS RIGHTS [UNITED STATES CONST. AMEND XIV; NJ CONST. (1947) ART. 1 PAR. 1]

(Not raised below).

POINT IV

TRIAL COUNSEL'S CONFLICT OF INTEREST DEPRIVED THE DEFENDANT OF THE UNDIVIDED LOYALTY OF THE COUNSEL AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION.

POINT V

THE IDENTIFICATION EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE IDENTIFICATION EVIDENCE WAS UNRELIABLE AND ITS ADMISSION VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION.

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS

(NOT RAISED BELOW).

POINT VII

THE DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

A. THE TRIAL COURT ERRED BY IMPOSING AN EXTENDED TERM.

B. THE TRIAL COURT ERRONEOUSLY BALANCED THE AGGRAVATING FACTORS.

C. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME.

D. THE IMPOSITION OF AN 85% PERIOD OF PAROLE INELIGIBILITY ON TOP OF THE IMPOSITION OF AN EXTENDED TERM OF 50 YEARS IS CRUEL AND UNUSUAL AND SHOCKS THE JUDICIAL CONSCIENCE.

For the first time on appeal, defendant contends the trial court erred in failing to instruct the jury on the lesser included offenses of theft and aggravated assault. We will not reverse unless defendant establishes plain error that is "clearly capable of producing an unjust result." R. 2:10-2. In other words, the error must raise a reasonable doubt as to whether it "led the jury to a result it otherwise might not have reached." State v. R.B., 183 N.J. 308, 330 (2005); State v. Macon, 57 N.J. 325, 336 (1971).

Pursuant to N.J.S.A. 2C:1-8e, a court "shall not charge the jury with respect to an included offense unless there is a rational basis" to convict a defendant of a lesser included offense. In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense and convict the defendant of the lesser, unindicted offense. State v. Brent, 137 N.J. 107, 113-14 (1994).

A defendant "is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). As defined by N.J.S.A. 2C:1-8d, an offense is "included" if:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise include therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8d.]

Determining whether to charge the jury on a lesser included offense depends largely on whether or not a charge was requested by defendant at trial. State v. Savage, 172 N.J. 374, 396-97 (2002). Where, as here, neither the prosecution nor the defense requests a lesser included offense charge, the trial court must instruct on lesser included charges only when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense. State v. Jenkins, 178 N.J. 347, 361 (2004) (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). Thus, where the facts do not clearly raise the issue, and there is no request, there is no error in the failure to charge on the lesser offense. Savage, supra, 172 N.J. at 400-01. In such instances, a court need not sift through the record meticulously to find the few fragments which might suggest that a charge should be given. State v. Purnell, 126 N.J. 519, 540-41 (1992).

Here, defendant was charged with first degree robbery under N.J.S.A. 2C:15-1 on the basis that he was armed while in the course of a robbery. Robbery is a crime of the second degree unless "'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[,]' in which case it becomes a first-degree offense." State v. J.M., 364 N.J. Super. 486, 493 (App. Div. 2003) (quoting N.J.S.A. 2C:15-1b). Theft is a lesser included offense of robbery, and it is appropriate to charge theft if "there is a question whether the defendant's act of 'inflict[ing] bodily injury,' 'us[ing] force upon another' or 'threat[ening] another with [or] purposefully put[ting] him in fear of bodily injury' occurred 'in the course of committing a theft.'" State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003).

Here, the record does not "clearly indicate" the appropriateness of a charge on the lesser included offense of theft. While Cobb's identification of defendant may have wavered, he never departed from his initial statement that one of his assailants was armed with a sawed-off shotgun, that he was threatened with immediate bodily harm, and that the other assailant removed his wallet and car keys. These facts provide no basis for a charge of theft as a lesser included offense. Accordingly, the trial court properly charged the jury on first degree robbery and on the lesser included offense of second degree robbery.

Nor did the trial judge err by not delivering sua sponte a charge on aggravated assault as a lesser included offense. The Supreme Court has determined that robbery "is a more complex crime than theft plus assault." State v. Mejia, 141 N.J. 475, 498 (1995). Thus, "'the shorthand understanding that robbery equals theft plus assault is inconsistent with the clear, albeit complicated, language of the Code.'" Id. at 498-99 (quoting State v. Sewell, 127 N.J. 133, 147 (1992)). As such, aggravated assault is not inevitably a lesser included offense of robbery, largely because the use of force required to sustain a robbery conviction is not necessarily equivalent to the use of force necessary to sustain an assault conviction. The record clearly indicates that Cobb's wallet was forcibly taken from him; there is no evidence to support the proposition that defendant committed an aggravated assault without a theft.

Also raised as plain error is defendant's contention that the trial court erred in failing to instruct the jury on the law of prior inconsistent statements. Specifically, defendant contends the introduction of Cobb's contradictory statement to police regarding defendant and co-defendant's role in the robbery "should have been evaluated on the basis of complete and accurate instructions on the law of credibility," that is, the trial court should have instructed the jury that it could use the prior inconsistent statement to assess Cobb's credibility and as substantive evidence.

Although Judge Vena did not provide the jury with a formal jury charge on prior inconsistent statements, defendant was not deprived of a fair trial because the Judge provided extensive instructions regarding witness credibility and identification. We repeat at length the thorough instruction provided by Judge Vena on this point.

Now as judges of the facts you are to determine the credibility of the witnesses. And in determining whether a witness is credible and worthy of belief you may take into consideration the appearance and demeanor of the witness; the manner in which he or she may have testified; the witness' interest in the outcome of the trial, if any; his or her means of obtaining knowledge of the facts; the witness' power of discernment meaning their judgment, understanding; his or her ability to reason, observe, recollect and relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated of contradicted, supported or discredited by other evidence; whether the witness testified with an intent to deceive you; the reasonableness or unreasonableness of the testimony the witness has given; the presence of any inconsistent or contradictory statement; and any and all other matters in evidence which serve to support or discredit his or her testimony.

Through this analysis as the judges of the facts, you weigh the testimony of each witness and you determine the weight to give to it. Through that process you may accept all of it, a portion of it, or none of it.

Now you all have noticed that in this case the defendants chose not to appear as witnesses. It is the constitutional right of a defendant to remain silent. I charge you that you are not to consider for any purpose or in any manner in arriving at your verdict the fact that the defendants did not testify, nor should that fact enter into your deliberations or discussions in any manner or at any time. A defendant is entitled to have the jury consider all the evidence and he's entitled to the presumption of innocence, even if he does not testify as a witness.

Defendants as part of their general denial of guilt contend that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that they are the persons who committed the alleged offenses. The burden of proving the identi[t]y of the persons who committed the crime is upon the State.

For you to find these defendants guilty, the State must prove beyond a reasonable doubt that these defendants are the persons who committed the crime.

The defendants have neither the burden or duty to show that the crime, if committed, was committed by someone else. Or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of an offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that these defendants are the persons who committed them.

The State has presented the testimony of Allen Cobb. You will recall that this witness identified the defendants in Court as the persons who committed the robbery.

[The] State also presented testimony that on a prior occasion, before this trial, this witness identified the defendants as the persons who committed these offenses.

According to the witnesses -- according to the witness, his identification of the defendants was based upon the observations and perceptions that he made of the perpetrators at the time the offense was being committed.

It's your function to determine whether the witness' identification of the defendants is reliable and believable, or whether it's based on a mistake, or for any reason not worthy of belief. You must decide whether it's sufficient reliable evidence upon which to conclude that these defendants are the persons who committed the offenses charged.

In evaluating the identifications, you should consider the observations and perceptions on which the identifications were based. And the witness' ability to make those observations and perceptions. If you determine that an out of Court identification is not reliable, you may still consider the witness' in-Court identification of the defendant if you find it to be reliable.

Unless the in-Court identification resulted from the witness' observations and perceptions of the perpetrators during the commission of the offenses rather than being the product of an impression gained at the out of Court identification procedure, it should be afforded no weight.

The ultimate issue of the trustworthiness of both the in-Court and out of Court identification are for you to decide. To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that these defendants are the persons who committed the offenses charged, you should evaluate the testimony of the witness in light of the factors for considering credibility that I've already explained to you.

In addition, you may consider the following factors. The witness' opportunity to view the person or persons who committed the offense at the time of the offense; the witness' degree of attention on the perpetrators when he observed the crime being committed; the accuracy of any description the witness gave prior to identifying the perpetrators; the degree of certainty expressed by the witness in making an identification; the length of time between the witness' observation of the offense and the first identification; discrepancies or inconsistencies between identifications if any; the circumstances under which any out of Court identification was made; and any other factor based on the evidence or lack of evidence in this case which you consider relevant to your determination whether the identification, identifications were reliable.

The fact that an identifying witness is not of the same race as the perpetrator and/or defendants, and whether that fact may have had an impact on the accuracy of the witness' original perception and/or the accuracy of a subsequent identification, you should consider that in ordinary human experience people may have greater difficulty in accurately identifying members of a different race.

If, after consideration of all the evidence, you determine the State has not proved beyond a reasonable doubt that these defendants were the persons who committed these offenses, then you must find the defendants not guilty.

If, on the other hand, after consideration of all the evidence, you're convinced beyond a reasonable doubt that the defendants were correctly identified you'll then consider whether the State has proven each and every element of the offense charged beyond a reasonable doubt.

Also in evidence are photographs that were used to identify the defendants in this case. With reference to photographs submitted into evidence, you'll notice that photographs appear to have been taken by a law enforcement agency or some other government entity. You're not to consider the fact that the agency obtained the photographs of the defendants as prejudicing them in any way. The photographs are not evidence that the defendants have ever been arrested or convicted of any crime. Such photographs come into the hands of law enforcement from a variety of sources including but not limited to driver's license applications, passports, A.B.C. identification cards, various forms of government employment, private employment requiring state regulation including but not limited to state casino license applications, security guard applications, et cetera, or from a variety of other sources totally unconnected with criminal activity.

The central issue in this case was whether defendant was one of the men who robbed Cobb at gunpoint in the Pathmark parking lot. The victim's confusion at trial related to the central issue of identification. The extremely thorough instruction delivered by the court allowed the jury to focus on the victim's varying accounts. We cannot discern any basis to conclude that the charge contributed to an unjust result.

The remaining issues raised by defendant concerning his conviction, including his contention that the judge directed a verdict on an element of the charge of unlawful possession of a sawed-off shotgun, the alleged conflict of interest between defendant and trial counsel, identification and cumulative error are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Finally, defendant argues that the imposition of a fifty-year Graves Act mandatory extended term and a NERA parole ineligibility term is manifestly excessive and unconstitutional. We disagree.

The Graves Act makes use or possession of a firearm during the commission, attempted commission, or flight from commission of certain designated offenses a factor that triggers the imposition of a mandatory term of imprisonment. N.J.S.A. 2C:43-6c. Armed robbery is one of the designated offenses. Ibid. Under the Graves Act's repeat-offender provision, the trial judge is required to sentence a person convicted of a second Graves Act offense to both an extended term and a parole disqualifier. N.J.S.A. 2C:43-6c; 2C:44-3d. Defendant was convicted of armed robbery in 1991. In fact, defendant never contested his eligibility. He, therefore, qualified for the mandatory extended term.

Having been convicted of armed robbery, a first degree offense, and subject to an extended term, defendant was subject to an extended term of imprisonment between twenty years and life, N.J.S.A. 2C:43-7a(2), and a presumptive term of fifty years. N.J.S.A. 2C:44-1f(1). He was also subject to a parole ineligibility term between one-third and one-half of the base term. N.J.S.A. 2C:43-7c. Here, however, defendant was convicted of an offense, armed robbery, that is subject to NERA. N.J.S.A. 2C:43-7.2. These terms carry a parole ineligibility term of 85% of the base extended term. Ibid. In other words, the fifty-year extended term, 85% of which must be served without parole, is entirely consistent with the law.

Contrary to defendant's contention, the prison term imposed by Judge Vena is not unconstitutional. The sentence is founded entirely on defendant's prior criminal record and the nature of the offense as found by the jury. A mandatory extended term does not violate the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) because the term is based solely on defendant's prior convictions. State v. Natale, 184 N.J. 458, 481-82 (2005) (Natale II); State v. Franklin, 184 N.J. 516, 530 (2005); State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005).

We also discern no error in the identification and evaluation of the aggravating and, in this case, the non-existent mitigating factors. When sentenced, defendant had been convicted on four separate occasions of first degree robbery, at least one of which was committed while armed, and two prior second degree robberies. Defendant had been involved in the criminal justice system continuously since 1983. In the face of this record, the imposition of the presumptive fifty-year term was unremarkable.

 
Affirmed.

The latter charge was submitted to the jury followings its initial verdict on Counts Two through Five. See State v. Ragland, 105 N.J. 189, 193 (1986).

N.J.S.A. 2C:43-6c; 2C:43-7c.

N.J.S.A. 2C:43-7.2.

(continued)

(continued)

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A-1052-04T4

May 25, 2006