STATE OF NEW JERSEY v. DUAN SHAHEED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2654-02T42654-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUAN SHAHEED,

Defendant-Appellant.

_______________________________

 

Submitted January 9, 2006 - Decided

Before Judges Lintner, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 00-04-1155.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On April 28, 2000, defendant, Duan Shaheed, and co-defendant, James Lamont Tutt, were charged in a sixteen-count indictment with second-degree conspiracy to commit carjacking, robbery, and arson, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:17-1 (Count One); first-degree carjacking, contrary to N.J.S.A. 2C:15-2a(2) (Count Two); six counts of first-degree armed robbery of Vladimir Francois, Deon Henderson, T.W., J.B., Ariel Santiago, and Carlos Velez, contrary to N.J.S.A. 2C:15-1 (Counts Three, Four, Seven, Eight, Nine and Ten, respectively); three counts of second-degree aggravated assault of Francois, Henderson, and Velez, contrary to N.J.S.A. 2C:12-1b(1) (Counts Five, Six, and Eleven, respectively); first-degree felony murder of Santiago, contrary to N.J.S.A. 2C:11-3a(3) (Count Twelve); first-degree purposeful or knowing murder of Santiago, contrary to N.J.S.A. 2C:11-3a(1) and (2) (Count Thirteen); third-degree possession of a firearm (handgun), without a permit, contrary to N.J.S.A. 2C:39-5b (Count Fourteen); second-degree possession of a handgun for an unlawful purposes, contrary to N.J.S.A. 2C:39-4a (Count Fifteen); and second-degree aggravated arson, contrary to N.J.S.A. 2C:17-1a (Count Sixteen).

Defendant and Tutt were tried together in May and June 2001. At the close of the State's case, the court granted Tutt's motion to dismiss Count Five (aggravated assault of Francois), Count Seven (robbery of T.W.), and Count Eight (robbery of J.B.). The jury returned a partial verdict finding defendant guilty on Count Seven (robbery of T.W.), Count Eight (robbery of J.B.), Count Fourteen (possession of a handgun without a permit), and Count Fifteen (possession of a handgun for an unlawful purpose); finding defendant and Tutt not guilty on Count One (conspiracy) and Count Sixteen (arson); but was unable to reach a verdict on the remaining counts.

In January 2002, the State re-tried defendant and Tutt on the undecided counts. At the close of the State's case, defendant and Tutt moved for judgment of acquittal on all counts. The judge denied the motion as to defendant, but granted Tutt's motion as to the charges of carjacking and robbery of Francois. At the close of the case, Tutt renewed his motion for acquittal, and the court granted the motion as to the charges of robbery and aggravated assault of Henderson. Following a replay of Velez's testimony, defendant and Tutt renewed their motion for judgment of acquittal as to the charges of robbery of Santiago and Velez, and felony murder of Santiago. After the court granted the motion, the jury returned a verdict finding defendant guilty on the charges of carjacking, robbery of Francois and Henderson, aggravated assault of Francois, Henderson and Velez; and on the charge of knowing or purposeful murder of Santiago, the jury found defendant guilty of the lesser-included offense of first-degree aggravated manslaughter.

On May 17, 2002, Judge Camp denied defendant's motion for judgment of acquittal notwithstanding the verdict, defendant's pro se motion for a new trial, and the State's motion for an extended term. On the same day, defendant was sentenced on his conviction for carjacking to a twenty-year term of imprisonment, with a seventeen year NERA parole disqualifier; a consecutive term of twenty years on his conviction of robbery of Francois, together with a seventeen year NERA parole disqualifier; concurrent terms of twenty years each with a NERA parole disqualifier on his convictions for robbery of Henderson, T.W. and J.B.; concurrent terms of ten years each with a NERA parole disqualifier on his convictions for aggravated assaults of Francois, Henderson, and Velez; a concurrent term of twenty years on his conviction for aggravated manslaughter of Santiago; a concurrent term of five years with a five-year period of parole disqualifier on his conviction of unlawful possession of a weapon without a permit; and a concurrent term of five years with a NERA parole disqualifier and a three-year period of parole ineligibility pursuant to the Graves Act on his conviction of possession of a weapon for an unlawful purpose. All counts except Count Three were to run concurrent to Count Two. The aggregate custodial sentence imposed was forty (40) years with thirty-four (34) years of parole ineligibility. Appropriate fines and penalties were also imposed.

Defendant appeals, and we affirm the convictions but remand for re-sentencing in conformity with State v. Natale, 184 N.J. 458 (2005) (Natale II).

The following facts were adduced at trial. At approximately 8:45 p.m. on December 19, 1998, Henderson and Francois were in Francois's car stopped at a traffic light at the intersection of Park Avenue and Washington Street, East Orange. The car was a blue four-door 1998 Mazda Millenia with factory-tinted windows, star-shaped chrome rims, and New Jersey License Plate No. WH774E. While stopped at the light, another vehicle pulled up along the driver's side of Francois's car. Francois and Henderson saw two men exit from the vehicle, each possessing a gun, and approach Francois's car, one on each side. The men told Henderson and Francois to exit the vehicle and give them their jackets. As Francois exited the vehicle, he heard two or three gunshots. The assailants took Francois's and Henderson's jackets, together with $40 to $50 from Henderson, and then drove off in Francois's car, after which Francois telephoned the police.

At approximately 9:30 p.m., the same evening, J.B. and T.W. were walking on a sidewalk in Irvington. J.B. observed a "blue Mazda," fitting the description of Francois's automobile down to the license plate number, stop about forty-five feet in front of them. An individual exited the Mazda, walked back past J.B. and T.W., and then turned around and followed them. As they were walking, J.B. heard the individual behind them say "Take it off," which J.B. understood to mean his jacket. J.B. took off his jacket, and gave it to the individual. The assailant demanded money, but J.B. and T.W. did not have any. The perpetrator returned to the Blue Mazda and drove away.

At about 10:30 p.m. the same night, Velez and Santiago were walking on Wright Street towards Frelinghuysen Avenue, Newark. As they approached the intersection, Velez observed "a dark color Mazda Millenia" with "five-point star" chrome rims driving south on Frelinghuysen Avenue towards the intersection with two people in the front and either two or three people in the back. As the vehicle pulled to the curb at the intersection, Velez saw the right front passenger door open, and someone say "Yo, holdup," and the front passenger started shooting. When Velez heard the shots, he ran from the intersection and did not look back. Santiago ran about five or six feet in the opposite direction, and was shot, falling to the ground. After hiding for about ten or fifteen minutes, Velez returned to the intersection, and saw Santiago lying face down in a pool of blood. Santiago was pronounced dead on the morning of December 20, 1998. According to the Medical Examiner, his "cause of death was a gunshot wound of neck and head."

On December 21, 1998, Henderson met with investigator Arnold Valentin of the Essex County Prosecutor's Office, and described the individual who robbed him as a dark-skinned black man with a very low haircut or bald head, between twenty-two and twenty-three years old, about six feet tall, and wearing a black, yellow and green jacket. He described the individual who robbed Francois as between twenty-three and twenty-four years old, about five feet ten inches tall, and stocky with medium brown skin, and wearing a black hooded jacket. On December 31, 1998, Henderson met again with Valentin. During the interview, Henderson looked through photograph books, and identified a photograph of Tutt as the individual who robbed Francois. The record is silent as to whether defendant's picture was contained in any of the photograph books. A month later, on February 5, 1999, Henderson again met with Valentin, and for the first time, advised Valentin that the man who robbed him was wearing a baseball hat. Valentin showed Henderson photograph array "H," which he had complied in January 1999. The array contained one photograph of defendant in picture slot No. 5, together with five photographs of other black males. Henderson advised Valentin: "It[,] [the assailant,] looks like No. 5, but the picture is too light. The features are the same, but the skin is darker."

Valentin then showed Henderson photograph array "E," which Valentin had compiled at the same time that he compiled array "H." Array "E" also had a photograph of defendant in picture slot No. 5, along with five other photographs of black males. Henderson advised Valentin that picture No. 5 looked like his assailant, but that his assailant had worn a hat. Valentine cut a hat from a piece of paper, and placed in on the photographs that Henderson chose from each of the two arrays. Henderson then confirmed his identification of defendant's photograph in each of the two arrays.

On February 8, 1999, Francois identified a photograph of defendant as the man who carjacked him and robbed Henderson. Francois never made an out-of-court identification of Tutt. Contrary to the photo identifications, at trial Henderson and Francois testified that they could not identify either defendant or Tutt as the robbers. Francois stated that he knew Tutt from school, and would have recognized him.

On January 15, 1999, J.B. made an out-of-court photograph identification of defendant as the individual who robbed him and T.W. J.B. testified accordingly at trial, and identified a picture of Francois's car as the car defendant was in that night.

On February 1, 1999, Velez met with Valentin, and made a photograph identification of defendant as the individual who fired the shots, and of Tutt as one of the men in the back of the Mazda automobile. Velez stated that he observed the shooter, who exited from the front passenger seat, when he was completely out of the car. He described the shooter as a black male, around five feet eleven inches to six feet tall, between twenty-one and twenty-three years of age, dark skin, clean shaven, 250 to 275 pounds and wearing dark clothes. He described the rear passenger as a black male, medium to light skinned complexion, a light beard on his face, and in his twenties. Valentin showed Velez photograph array "H," and Velez identified defendant as the shooter. Valentin showed Velez photograph array "D," which contained a picture of Tutt, and Velez identified Tutt as a passenger in the vehicle. At trial, Velez again identified defendant as the shooter, and Tutt as one of the other men in the car. He also identified a photograph of Francois's automobile as the car that defendant and Tutt were in the night of the murder.

Defendant raises the following issues on appeal:

POINT I.

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF THE OPPORTUNITY TO ESTABLISH THAT THE OUT-OF-COURT IDENTIFICATIONS OF THE DEFENDANT BY DEON HENDERON, VLADIMIR FRANCOIS, CARLOS VELEZ, AND J.B., WERE UNRELIABLE BECAUSE IT APPLIED AN ERRONEOUS LEGAL STANDARD.

POINT II.

THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE PRINCIPLES UNDERLYING N.J.R.E. 403[,] BY ALLOWING THE PROSECUTOR TO CALL J.B. AS A WITNESS DURING THE SECOND TRIAL.

POINT III.

THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE TO USE LIEUTENANT ORTOLANI'S SERVICE REVOLVER (S-52 FOR IDENTIFICATION) AS A DEMONSTRATION AID.

POINT IV.

THE PROSECUTOR'S ASSERTIONS MADE IN SUMMATION THAT THE JURY SHOULD GIVE GREAT WEIGHT TO J.B.'S IN-COURT IDENTIFICATION BECAUSE HE WAS "COURAGEOUS," AND DISREGARD THE FAILURE BY DEON HENDERSON AND VLADIMIR FRANCOIS TO MAKE AN IN-COURT IDENTIFICATION OF THE DEFENDANT BECAUSE THEY WERE AFRAID[,] CONSTITUTED REVERSIBLE ERROR.

POINT V.

IN ADDITION TO THE IDENTIFICATION INSTRUCTIONS THAT WERE GIVEN TO THE JURY, THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GIVE A SPECIAL IDENTIFICATION CHARGE, SUA SPONTE, PURSUANT TO STATE V. GUNTER (NOT RAISED BELOW).

POINT VI.

THE AGGREGATE BASE CUSTODIAL SENTENCE OF FORTY (40) YEARS IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING SENTENCES IN EXCESS OF THE PRESUMPTIVE TERMS FOR CRIMES OF THE FIRST DEGREE ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY ON COUNTS THREE, FOUR, SEVEN, AND EIGHT; IN IMPOSING SENTENCES IN EXCESS OF THE PRESUMPTIVE TERMS FOR CRIMES OF THE SECOND DEGREE ON THE DEFENDANT'S CONVICTIONS FOR AGGRAVATED ASSAULT ON COUNTS FIVE, SIX, AND ELEVEN; AND IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM FOR A CRIME OF THE THIRD DEGREE ON THE DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT FOURTEEN.

(B) IMPOSITION OF NON-PRESUMPTIVE SENTENCES VIOLATED BLAKELY V. WASHINGTON, [542] U.S. [296], 124 [S. CT.] 2531[,] [ 159 L. Ed. 2d 403] (2004).

(C) IMPOSITION OF THE TWENTY[-]YEAR BASE TERM ON THE DEFENDANT'S CONVICTION FOR CARJACKING ON COUNT TWO WAS MANISFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(D) THE TRIAL COURT ABUSED ITS DISCRETION BY RUNNING THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR ROBBERY ON COUNT THREE CONSECUTIVE WITH THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR CARJACKING ON COUNT TWO.

POINT VII.

THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AS TO COUNTS NINE, TEN AND TWELVE, AND BY INSTRUCTING THE JURY DURING ITS DELIBERATIONS "NOT TO SPECULATE AS TO THE REASONS" WHY COUNTS NINE, TEN AND TWELVE WERE BEING "WITHDRAWN" (RAISED IN PART BELOW).

In a pro se supplemental brief, defendant raises the following issue:

THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE JURY TO CONSIDER OTHER-CRIMES EVIDENCE WHICH CONTAINED PREJUDICIAL DETAILS OF THE MANNER IN WHICH THE PREVIOUS CRIME WAS COMMITTED AND AS A RESULT THE DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS TO A FAIR TRIAL[,] THEREFORE THE CONVICTION SHOULD BE REVERSED.

Defendant first argues that the trial judge erroneously denied his (and Tutt's) motion for a Wade hearing concerning the out-of-court and in-court identifications of defendant made by Henderson and Velez. Defendant asserts that the trial judge "abused [his] discretion because [he] applied the 'very substantial lik[e]lihood of irreparable identification' standard instead of the 'some evidence of impermissible suggestiveness' standard as articulated in State v. Ortiz, [ 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985)]." Defendant claims that he met the threshold showing of the lower standard entitling him to a Wade hearing, and if it had been granted "that probability of misidentification would have been established, and the out-of-court and in-court identifications of the defendant by the witnesses would have been excluded." The State counters that the trial judge applied the correct legal standard, which the defendant failed to meet. We agree that the trial judge correctly denied defendant's request for a Wade hearing.

A trial court's denial of a Wade hearing is reviewed under the abuse-of-discretion standard. State v. Ortiz, supra, 203 N.J. Super. at 521. If the appellate court finds that the trial court erred in denying the request, the appellate court will nonetheless affirm the ruling if it concludes that the identification procedure did not result in a "very substantial likelihood of irreparable misidentification." State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995).

A trial court "abuses its discretion" when it applies an erroneous legal standard in making a decision, and when it makes an evidentiary ruling that is not grounded on reasonable, credible evidence in the record. State v. R.D., 169 N.J. 551, 559 (2001). When the application of an erroneous legal standard, or the consequences of an evidentiary ruling not supported by the credible evidence in the record, results in the jury receiving evidence that has the capacity to sway it to reach a decision that it may not have otherwise made, that abuse of discretion constitutes reversible error. State v. Adams, 320 N.J. Super. 360, 368-69 (App. Div.), certif. denied, 161 N.J. 333 (1999).

At a Wade hearing, a trial court decides whether a witness's identification testimony should be excluded from evidence as unreliable. Wade, supra, 388 U.S. at 241-42, 87 S. Ct. at 1940, 18 L. Ed. 2d at 1165-66; accord State v. Michaels, 136 N.J. 299, 320 (1994). To receive the hearing, a defendant must produce some evidence that the witness's identification was the product of impermissibly suggestive or coercive interview techniques. Michaels, supra, 136 N.J. at 320.

If the court grants a Wade hearing, it must then decide whether the interview techniques gave "'rise to a very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 239 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The court should exclude the identification evidence only if it finds that "the impermissibly suggestive out-of-court identification procedures so irreparably 'tainted' the out-of-court and in-court identifications" that the defendant was denied due process. Ibid.

In support of his contention that the trial judge applied the wrong standard in denying defendant's application for a Wade hearing, defendant cites the following statement by the judge when he ruled upon the motion:

I think that there is [a] strong argument[] to be made to the jury on the reliability of these identifications given the inconsistencies pointed out by defense counsel, but that [is] not the test for this [Wade] hearing.

The New Jersey Supreme Court, in [State v. Madison], 109 [N.J.] 223, 234, [a] 1988 case, held that, "The standard for exclusion of identification evidence was under the totality of the circumstances where all the circumstances led forcefully to the conclusion that the identification was not actually that of the eye witness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist."

. . . .

I do [not] make a finding that there was any procedure impermissibly suggestive. And having not made that finding, I do [not] have to go any further. The motion for a hearing is denied.

Contrary to defendant's argument, we determine that the judge applied the correct standard. In ruling, the judge complied with the "some evidence of suggestiveness standard," as articulated in Ortiz.

Frankly, this [c]ourt was -- came out with some knowledge of the facts with a feeling that it was going to probably order a hearing, but after listening to the arguments, looking at the evidence presented to me, and giving each of you an opportunity and then some to give me anything that this officer or any officer did to make it suggestive to the defendants is lacking, and that being so, the request for a hearing is denied.

I find that there was sufficient indicia of reliability that outweighed the -- I do [not] find any corrupting effect of the suggestive identification. I do [not] find it at all. There [is] nothing that this officer did that is untoward or unremarkable.

So I do [not] make a finding that there was any procedure impermissibly suggestive. And having not made that finding, I do [not] have to go any further. The motion for a hearing is denied.

[(emphasis added.)]

We conclude that the judge properly denied the motion, determining that defendant failed to meet the required threshold for a full Wade hearing. The judge determined that while defendant may have had an argument concerning the witnesses' credibility, he failed to present evidence that the identification procedure used by Valentin was suggestive, let alone impermissibly suggestive.

Defendant also contends that the judge recognized that there was a probability of misidentification in this case by the statement he made when he sentenced Tutt:

This court is taking courses on misidentification. We do [not] have a . . . misidentification, now that DNA is coming . . . into play is a startling, startling result across this country of unfair sentences. . . . [H]aving presided over the trials, having seen the inconsistencies . . . everything in this case[] suggests that the jury may have been mistaken. And I want that on the record.

Defendant's argument is without merit. The judge's reference to a probability of misidentification was limited to Velez's identification of Tutt. To the contrary, at the time defendant was sentenced, the judge stated that he had no question in his mind that defendant committed the crimes for which he was convicted.

Defendant next argues (through his appellate counsel and in his pro se brief) that the judge erred when he allowed J.B. to testify over defendant's objection concerning defendant's robbery of J.B. and T.W. Defendant contends that the testimony was not admissible under N.J.R.E. 403 and 404(b) because "the probative value of the evidence is substantially outweighed by the risk of undue prejudice to the defendant." The State counters that the evidence was properly admitted for the purpose of identification. We agree.

A reviewing court grants substantial deference to a trial judge in making discretionary evidentiary decisions and reviews them for abuse of discretion. State v. Marrero, 148 N.J. 469, 483 (1997). Only where there is a clear error of judgment should the appellate court disturb the trial judge's determination. Ibid. Generally, the determination of the admissibility of other-crime evidence is within the trial judge's broad discretion. Ibid. Our role is not to substitute our judgment for that of the trial judge, but to decide whether the trial judge pursued a manifestly unjust course. See Cosme v. Borough of E. Newark Tp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).

N.J.R.E. 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 such person 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.

The rule is one of "exclusion" rather than "inclusion," and is intended to bar admission of other conduct when such evidence is offered solely to establish the "forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997). N.J.R.E. 404(b), however, does not preclude other conduct evidence in all instances. It allows admission of such evidence when relevant to prove some fact genuinely in issue. Marrero, supra, 148 N.J. at 482; State v. Oliver, 133 N.J. 141, 151 (1993). Other conduct evidence is admissible where it is (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value to not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992) (citing Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).

Moreover, if evidence of other conduct is admitted, the jury must be instructed as to the limited purpose of the evidence and the restricted significance that the jury can attach to it. Marrero, supra, 148 N.J. at 495; see also N.J.R.E. 105. The trial judge's limiting instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 309 (1989)). That other conduct evidence prejudices defendant's case is not by itself a reason to exclude otherwise admissible and probative evidence. State v. Frost, 242 N.J. Super. 601, 620-21 (App. Div.), certif. denied, 127 N.J. 321 (1990).

J.B.'s testimony identifying defendant as the driver of the stolen blue Mazda automobile at a time close to the carjacking of Francois and the shooting of Santiago was admissible because it met the four-prong test of Cofield. The testimony identifying the car that J.B. observed defendant driving, by its make, model, color, and license plate number, was probative as to the identification of defendant and the car within a short time following the carjacking and robbery of Francois and Henderson. The evidence was relevant as to identification of defendant and his involvement in the crimes for which he was then on trial. Secondly, the evidence was similar in nature, and reasonably close in time to the charges then before the court. Thirdly, J.B.'s testimony concerning defendant's actions in robbing him and T.W. was clear and convincing. Lastly, the trial judge did not abuse his discretion in determining that the probative value substantially outweighed the risk of undue prejudice to defendant. N.J.R.E. 403(a). J.B.'s testimony linked the carjacking and robbery of Francois and Henderson to the assault of Velez and the shooting of Santiago.

We also reviewed the limiting instructions provided by the trial judge at the time the evidence was admitted and in his final instructions to the jury, and determine that they were proper. The jury was instructed that they could only use the evidence for the purpose of identification of defendant and could not use the evidence for any other purpose including that of deciding "that just because defendant has committed other crimes[,] wrongs or acts, he must be guilty of the present crime."

Defendant argues next that the trial judge erred by granting leave to the State for Lieutenant Ortoleni to use his service revolver as a demonstration aid during his testimony. We have carefully considered this argument in light of the record and legal principles, and find the argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). "Rulings on the admission of demonstrative evidence are within the discretion of the trial judge." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). We determine no abuse in the judge's discretion in allowing the use of the handgun during the police officer's testimony. State v. Ford, 165 N.J. Super. 249, 258 (1978) (Michels, J., dissenting), rev'd on dissent, 79 N.J. 136 (1979).

Defendant argues that certain comments made by the prosecutor during summation constituted prosecutorial misconduct requiring reversal. Defendant contends the prosecutor made two comments during summation that prejudiced the jury against him and denied him a fair trial: first, that J.B.'s testimony was credible because he was "courageous;" and second, that Henderson did not make an in-court identification of defendant because he was "not courageous enough to stand in this courtroom and make that identification again." Because the defendant did not object to the prosecutor's first comment, we review that challenge under the plain error standard. R. 2:10-2.

It is the prosecutor's job to ensure that justice is done, whether that means a conviction or an acquittal. State v. Spano, 64 N.J. 566, 568 (1974). When presenting the summation, the prosecutor is bound to confine his comments to the facts revealed during trial and any reasonable inferences that may be drawn therefrom. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Prosecutors are allowed significant freedom as long as the commentary is reasonably related to the evidence before the jury. State v. Harris, 141 N.J. 525, 559 (1995). In fact, in a criminal case, a prosecutor is entitled and expected to make his closing arguments vigorously and forcefully. State v. Frost, 158 N.J. 76, 82 (1999) (A. Frost); Harris, supra, 141 N.J. at 559.

Nevertheless, because the prosecutor is the representative of the State, it is not unreasonable for the jury to have confidence in his words; they are spoken with the authority of the State. Spano, supra, 64 N.J. at 568. When determining whether a prosecutor's remarks during summation were improper and require reversal, an appellate court must first decide whether the prosecutor's conduct deprived a defendant of a fair trial. A. Frost, supra, 158 N.J. at 83. To warrant reversal, the prosecutor's conduct must have "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Smith, 167 N.J. 158, 182 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). In making this determination, the court should consider factors such as whether defense counsel made a timely objection, whether the trial judge ordered the remarks stricken, and whether the jury was instructed to disregard the comments. State v. Ramseur, 106 N.J. 123, 322-23 (1987).

When no objection is made, an appellate tribunal often will find no prejudice because the absence of a timely objection indicates that the defense did not find the remarks prejudicial when made. A. Frost, supra, 158 N.J. at 83-84. The failure to interpose a timely objection also deprives the court of a chance to remedy the problem. Id. at 84.

The prosecutor's commentary was limited to the facts in evidence, and there was nothing about the remarks that compromised the ability of the jury to discharge its factfinding function, especially considering the instructions they received.

Concerning the first comment that defendant challenges as improper, the prosecutor stated:

Despite [defense counsel's] attempts to get [J.B.] to say that he was looking at the gun and not looking at the [defendant's] face, what did he tell you? I [am] looking at the gun and his face. When [defendant] told me to look down, I looked down, then I looked back.

[J.B.] was sure. And it is [not] about adolescence. I would submit to you it is about courage. It is about the ability of [a] young man to explain that he had been robbed at gunpoint, and make a conscious determination as that robbery progressed that he was going to do what it took to catch the man responsible.

And how does he go about doing that? As [defendant] gets back into the Mazda Millennia that was stolen a half an hour earlier in East Orange, now, they [are] in Irvington -- he starts to say the plate number. He sees the plate number. And he repeats it over and over and over again to himself, so he would [not] forget it, so that he can report it to the police.

[(Emphasis added to language challenged by defendant).]

Although defendant did not object to the prosecutor's comment, defendant now argues that the comment focused the jury's attention on a non-relevant issue, namely J.B.'s personal trait of being courageous. Defendant contends the comment had the potential to evoke the jury's sympathy towards J.B., and outrage towards defendant, denying him the right to have the case decided on its facts.

The statement did not constitute prosecutorial misconduct. The comment was based on the evidence. J.B. testified that after he observed defendant had a gun, he looked at defendant's face. Then, after defendant told J.B. to stop looking at him, J.B. looked away for a brief period of time, but then looked back at defendant. After defendant returned to the Mazda automobile, J.B. looked at the license plate number and repeated it to himself in order not to forget it. We conclude from the prosecutor's summation taken as a whole that the prosecutor was attempting to convey that J.B., notwithstanding having a gun pointed at him during the robbery, was able to observe defendant's face and remember the license plate number of the automobile, and not to suggest that the jury should believe J.B. because he was "courageous." Also, we are satisfied that the comment was made in response to defense counsel's remarks suggesting that the jury should not believe J.B.'s testimony concerning identification of defendant because he was looking down during the robbery when his assailant pointed a gun in his face.

Defendant's second challenge to the prosecutor's closing remarks concerns Henderson's inability to make an in-court identification. After arguing that Henderson's out-of-court identification was credible, the prosecutor stated, "I would submit to you that he was not courageous enough to stand in this courtroom and make that identification again." Defendant objected to the comment arguing that it went beyond the scope of the evidence, as no one asked Henderson why he could not identify defendant in court or whether he was afraid to identify defendant; and that the comment implied that Henderson had reason to fear defendant. The court overruled the objection, determining it only constituted a "limited transgression." The judge declined to give a curative instruction, concluding that any instruction would only exacerbate any prejudicial effect that the comment may have caused. Defendant advances the same arguments as below.

Although it would have been better that the comment was not made, the comment did not exceed the bounds of fair play or "substantially prejudice . . . defendant's fundamental right to have the jury fairly evaluate the merits . . . [of the case]." State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). It was a fleeting comment, not repeated after defendant's objection, and made in response to defense counsel's closing arguments attacking Henderon's ability to make an identification, in court or out of court. Following closing arguments, the judge properly instructed the jury that comments of counsel were not evidence, and that they were the sole judges of the facts, and that they should disregard any comments made by counsel, or the judge himself, should the comments not comport with their own recollection of the evidence. The judge also instructed the jury concerning credibility of the witnesses and identification. We conclude that the judge's final instructions addressed and cured the harm, if any, caused by the prosecutor's "very limited transgression." See State v. Farrell, 61 N.J. 99, 107 (1972).

Defendant also argues for the first time that the judge erred in his identification instruction to the jury. Although conceding that the "trial court's instructions on identification were in conformity with the Model Jury Charge," defendant contends that the judge should have also charged, sua sponte, that "the vagaries of eyewitness identification . . . of strangers is proverbially untrustworthy." State v. Gunter, 231 N.J. Super. 34, 44 (App. Div.) (quoting Wade, supra, 388 U.S. at 228, 87 S. Ct. at 1933, 18 L. Ed. at 1158), certif. denied, 117 N.J. 80 (1989). Defendant asserts that "[d]ue to the factual context surrounding the identifications by the witnesses, . . . the trial court's failure to instruct the jury, using those exact words, constitutes an abuse of the court's discretion." We find the argument without merit.

Because there was no objection to the charge below, we review the matter under the plain error standard. R. 1:7-2; R. 2:10-2. Appellate courts will disregard an unpreserved error unless it is "'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2); State v. Bakka, 176 N.J. 533, 547-48 (2003). "In other words, the error must be 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (alteration in original).

We find no support for defendant's contention that the judge should have sua sponte included the foregoing language in the charge. Gunter did not address the adequacy of a jury charge on the issue of identification. Gunter concerns the issue of "the admissibility, under [N.J.R.E. 702,] of expert testimony by a psychologist explaining in general terms the factors which affect the reliability of eyewitness identification." Gunter, supra, 231 N.J. Super. at 36. The instructions to the jury properly addressed the issues of credibility, identification, and cross-racial identification.

Defendant also argues that the judge erred in denying his motion for a judgment of acquittal at the end of the State's case as to Counts Nine, Ten, and Twelve (robbery of Santiago, robbery of Velez, and felony murder of Santiago), and by instructing the jury during its deliberations that it was not to speculate on the reasons as to why those counts had been withdrawn from their consideration.

At the close of the State's case, defendant and Tutt moved for judgment of acquittal on all counts. They argued that no reasonable juror could find them guilty because the witnesses' inconsistent and incredible identifications created reasonable doubt. Judge Camp denied the motion concluding that the weight of the identification evidence was a question of fact for the jury. During deliberation, the jurors requested that Velez's testimony "in relation to his feeling that he was being robbed" be read back to them. Counsel and the court agreed to read back the testimony requested.

After hearing the testimony again, defendant and Tutt renewed their motion for acquittal on the three counts, this time arguing that notwithstanding Velez's incredible identification testimony, there was insufficient evidence to support a robbery conviction. Defendant argued that when Velez heard the right front passenger in the car say "Yo, hold up," he thought he was going to be shot, not robbed, and there was no other evidence that could be tied to a robbery charge. Defendant contended that in common parlance, the words used meant nothing more than "stop." Although the State argued to the contrary, the motion was granted, and the verdict sheet was revised to exclude the three counts. The judge then instructed the jurors that the three counts were withdrawn from their consideration, and "that you are not to speculate as to the reasons they have been withdrawn from your review, nor are you to consider in any way the fact they have been removed or the reason for their being withdrawn during your deliberation." No objections were raised to the instructions.

Defendant argues that the judge should have granted his motion for acquittal at the end of the State's case concerning the three counts and that submitting the same to the jury constitutes reversible error. Defendant contends for the first time that the judge should have declared a mistrial after the three counts were dismissed rather than allowing the jury to continue its deliberations on the remaining counts. Defendant asserts that the instructions provided to the jury "only enhanced the prejudice that [he] suffered as a result of the trial court's initial error in not dismissing [the three] counts."

Because defendant did not move for a mistrial below, we review the issue under the plain error standard. R. 2:10-2. The "broad test" for determination of a motion to acquit "is whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454, 458 (1967). Specifically, the appellate court is constrained to sustain a trial judge's denial of a Rule 3:18-1 motion to acquit at the close of the State's case if, "'viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all'" reasonable inferences, "'a reasonable jury could find guilt of the charge beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 80 (2002) (quoting Reyes, supra, 50 N.J. at 459).

The motion for acquittal at the end of the State's case was not based on the insufficiency of evidence to sustain the robbery charges notwithstanding the identification evidence, but rather was made on the argument that the witnesses had misidentified the defendant. We determine that the trial judge properly denied the motion, concluding that the witnesses' credibility was an issue of fact for the jury. It was not until after the trial judge and counsel heard the read back of Velez's testimony that defendant moved for acquittal on the three counts arguing that there was insufficient evidence to sustain the charges. The court then agreed and dismissed the charges.

Concerning defendant's failure to object to the instructions to the jury after dismissal of the three charges, defendant concedes that his challenge must be viewed under the plain error standard for failure to raise an objection to the charge below. R. 2:10-2. We have reviewed the instructions, and find them free of error, never mind plain error.

Lastly, we address defendant's challenges to his sentence. Defendant argues that the aggregate custodial sentence is excessive; and that the judge erred in imposing sentences above the presumptive terms in violation of Blakely, supra; and by running the sentence imposed on the conviction for robbery on Count Three consecutive with the sentence imposed on his conviction for carjacking on Count Two.

We first address defendant's argument concerning the sentences being in excess of the then presumptive terms for his convictions for robbery, Counts Three, Four, Seven and Eight; aggravated assault, Counts Five, Six, and Eleven; and unlawful possession of a weapon, Count Fourteen.

Defendant argues that the terms imposed violate Blakely v. Washington, supra. We agree. In Natale II, supra, 184 N.J. at 466, our Supreme 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." Thus, when a defendant receives a sentence higher than the presumptive term based on a judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

For those defendants whose cases were on direct appeal as of the date of the decision or who had raised this challenge to their sentences at trial or on direct appeal, and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. Id. at 494. At that hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . 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 judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) (the nature and circumstances of the offense); N.J.S.A. 2C:44-1a(2) (the risk that defendant will commit another crime); N.J.S.A. 2C:44-1a(6) (the extent of defendant's prior criminal record); N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others from violating the law); and N.J.S.A. 2C:44-1a(13) (that defendant used or was in possession of a stolen motor vehicle while in the course of committing the crimes). He did not find any mitigating factors.

The judge did not base factors (1) and (13) exclusively on defendant's prior criminal record. Accordingly, we are constrained, in light of Natale II, to remand for consideration whether the judge would impose a lesser sentence in the absence of the presumptive terms on defendant's convictions on Counts Three, Four, Five, Six, Seven, Eight, Eleven, and Fourteen.

Because there was no presumptive term for carjacking at the time of defendant's sentence, N.J.S.A. 2C:15-2a, defendant does not challenge the twenty-year term received on his conviction for that crime under Blakely or Natale II. Defendant challenges the term of imprisonment on the grounds that it is excessive and results from an abuse of the judge's discretion asserting the judge failed to articulate reasons why he imposed that term of imprisonment. "[T]his court will seldom interfere with a trial court's discretionary imposition of sentence." State v. Henry, 323 N.J. Super. 157, 162 (App. Div. 1999). "So long as the sentencing judge applies the proper standard and proceeds in the manner prescribed by the Criminal Code and controlling decisions of our Supreme Court, a rational and reasonable exercise of discretion and judgment will not be upset." Ibid. When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). Generally, in determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 359-60 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. Jabbour, supra, 118 N.J. at 6.

"Carjacking involves particularly heavy penalties. Although it is designated a first-degree offense, the penalty is fixed at between ten and thirty years with a minimum mandatory sentence of five years of parole ineligibility." Henry, supra, 323 N.J. Super. at 163. In determining the appropriate sentence, courts "must look to the alternative elements" identified in the carjacking statute, "in conjunction with the aggravating and mitigating factors," to guide their imposition of sentence. State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996). "[T]he Legislature intended that the high end of the sentencing range be reserved for the carjackings that involve the most serious accompanying elements." Id. at 292.

The jury found defendant guilty under subsection a(2) of the carjacking statute. That subsection provides that a defendant is "guilty of carjacking if . . . [he or she] 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." N.J.S.A. 2C:15-2a(2). The Zadoyan court stated that carjackings under "a(2)" are "of intermediate concern." Zadoyan, supra, 290 N.J. Super. at 291. However, when considered in conjunction with the aggravating factors found by the trial judge, defendant's twenty-year sentence, a term below the thirty-year maximum permitted by statute, is supported by the competent, credible evidence in the record. State v. Roth, 95 N.J. 334, 364 (1984).

Defendant also contends that the judge abused his discretion by running the sentence imposed on his conviction for robbery on Count Three consecutive with his conviction for carjacking on Count Two. The decision to set consecutive sentences is within the trial judge's discretion. N.J.S.A. 2C:44-5a; State v. Abdullah, 184 N.J. 497, 512-14 (2005). In exercising that discretion, the judge is guided by the Yarbough criteria. "[W]hen imposing either consecutive or concurrent sentences, '[t]he focus should be on the fairness of the overall sentence,' and [judges] should articulate the reasons for their decisions with specific reference to the Yarbough factors." Abdullah, supra, 184 N.J. at 515 (quoting State v. Miller, 108 N.J. 112, 122 (1987)) (second alteration in original). We have reviewed the transcript of sentence, and determine that the judge failed to articulate his reasons for imposing consecutive sentences. Accordingly, on remand the trial judge should state his reasons for imposing a consecutive sentence in accordance with Yarbough.

Lastly, although not raised on appeal, it appears that defendant's convictions on Counts Five, Six, and Eleven (second-degree aggravated assaults of Francois, Henderson and Velez, respectively) should have merged into the convictions for first-degree robbery of the same victims (Counts Three, Four, and Ten, respectively). State v. Mirault, 92 N.J. 492, 503 (1983). We direct that the trial judge address this issue after notice to the State and defendant on re-sentencing.

Accordingly, the matter is remanded for re-sentencing in accordance with this opinion. In all other respects, the judgments of defendant's convictions are affirmed. We do not retain jurisdiction.

 

T.W. and J.B. were juveniles at the time that the crimes were committed, and were only referenced to in the indictment by their initials. For purpose of this opinion, we shall continue to refer to them by their initials.

Co-defendant Kyle Herrill was indicted along with defendant and Tutt in Counts One and Sixteen. The court severed his case for purpose of trial, and on February 27, 2002, Herrill entered a plea of guilty on both counts.

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

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

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

At the time of the second trial, defendant had already been found guilty of robbery of J.B. and T.W. on Counts Seven and Eight of the indictment.

We refer to this case by the defendant's first initial to distinguish it from that in which the defendant was G. Frost, Frost, supra, 242 N.J. Super. 601.

Nor does defendant challenge the twenty-year term sentence received on his conviction of first-degree aggravated manslaughter on Count Thirteen, the prescribed term pursuant to N.J.S.A. 2C:44-1f(1)(a).

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). "In 1993, the Legislature eliminated the cap on the number of consecutive sentences that could be imposed pursuant to the sixth [Yarbough] factor by amending N.J.S.A. 2C:44-5[a](2) . . . ." Abdullah, supra, 184 N.J. at 513.

(continued)

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A-2654-02T4

May 5, 2006