STATE OF NEW JERSEY v. LONNIE BARBER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3681-04T43681-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LONNIE BARBER,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 6, 2006 - Decided June 26, 2006

Before Judges Kestin, Lefelt and

R. B. Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Passaic

County, Indictment No. 03-07-0679.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jacqueline

E. Turner, Assistant Deputy Public

Defender, of counsel and on the

brief).

Appellant, Lonnie Barber, submitted

a pro se supplemental brief.

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Christopher W. Hsieh, Senior

Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

A Passaic county jury convicted defendant, Lonnie Barber, of attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6; first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; and several weapon offenses. The trial judge granted the State's motion to sentence defendant to life imprisonment on the first-degree robbery conviction, pursuant to the "three strikes law," N.J.S.A. 2C:43-7.1. The judge also sentenced defendant to a concurrent twenty-year prison term with an eighty-five percent parole ineligibility period for attempted murder and to a concurrent ten-year prison term with five years of parole ineligibility for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6. The remaining weapon offenses were merged.

On appeal, defendant asserts, through counsel and a pro se supplemental brief, that: (1) the trial court denied him due process and a fair trial by failing to instruct the jury on the limited evidential use of co-defendant's guilty plea; (2) the prosecutor improperly commented on defendant's post-arrest silence, denying him a fair trial; (3) he did not qualify for sentencing under the pertinent "three strikes" law; and (4) the trial court improperly considered "harm to the victim," which was not found by the jury, as an aggravating factor. We affirm defendant's convictions but remand for resentencing.

The relevant facts and procedural history can be briefly summarized. Co-defendant, Steven Shoulars, arranged to purchase drugs from his friend, Keishaun Scudder. To complete the drug transaction, co-defendant invited Scudder into the back seat of a car, being driven by defendant. Scudder testified that when he looked down to get the drugs out of his pocket, the driver, whose face was concealed by a hooded sweatshirt, turned around pointing a gun and demanding that Scudder give him everything in his pockets. Scudder explained that co-defendant stared out the window and ignored Scudder's questions about defendant's behavior. He testified that the driver shot him in the face. Defendant and co-defendant then took Scudder's drugs and money and, once Scudder regained consciousness, they kicked him out of the car. Scudder walked to a cousin's house and was transported to the hospital. He testified that the shooting left him blind in one eye.

At trial, co-defendant testified that he arranged the drug transaction, lured Scudder into the car, and that he and defendant planned to rob Scudder. He further testified that defendant shot Scudder in the course of the robbery. He explained to the jury that he had agreed to testify as part of a plea agreement in which he was to receive a maximum sentence of seven years imprisonment. Defense counsel used this testimony to impeach co-defendant's credibility, cross examining him extensively about his plea agreement, involvement in the crime, and his criminal record.

The State also presented evidence that defendant's girlfriend owned the car described by Scudder, she had loaned it to defendant the night of the robbery, he had cleaned the vehicle before returning it, and Scudder's blood was in the car. Additionally, a letter was admitted into evidence, written by defendant to his girlfriend asking her to refuse to testify or provide false testimony that the car had been borrowed by a neighbor or "contaminated." Finally, Scudder testified that two weeks before trial defendant had offered him $15,000 to testify that co-defendant was the one who had shot him.

When arrested, defendant denied any involvement in the crime and also denied knowing co-defendant, Shoulars.

We can quickly dispose of defendant's meritless arguments seeking reversal of his convictions. We agree that "[t]raditionally, the guilty plea of a co-defendant is inadmissible at the trial . . . as substantive evidence of the defendant's guilt." State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005) (citing State v. Stefanelli, 78 N.J. 418, 430 (1979)). However, a co-defendant's guilty plea is "admissible to affect his credibility as a witness." Ibid. Therefore, a cautionary instruction must be given "as to the limited use of the testimony." Ibid.

In this case, no such limiting instruction was given. However, defendant did not raise the issue at trial, and therefore, we may reverse only if the omitted instruction "possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); R. 2:10-2 (plain error). An error of this magnitude did not occur.

Co-defendant's testimony was not the only evidence that implicated defendant. Scudder's testimony and defendant's girlfriend's testimony were also quite damaging to defendant. Furthermore, co-defendant testified about his involvement in the robbery as well as his plea agreement and guilty plea. The evidence of the guilty plea was used by defense counsel to challenge co-defendant's veracity. Defense counsel argued in summation that co-defendant lied about defendant's involvement to obtain a plea deal with a lesser sentence. The evidence and arguments actually focused on co-defendant's credibility. Therefore, considering the strength of the other evidence against defendant and the context of co-defendant's testimony, the error in failing to provide the limiting instruction did not have a "clear capacity to bring about an unjust result." See Hock, supra, 54 N.J. at 538. Consequently, plain error is not present.

Defendant also argued that he was denied a fair trial because the prosecutor improperly commented on defendant's post-arrest silence and improperly challenged defendant's credibility by comparing defendant's post-arrest silence with co-defendant's willingness to cooperate with investigators. Once again, because no objection was made at trial, we may reverse only on a showing of plain error. R. 2:10-2.

We will generally reverse where a prosecutor remarked upon or inferred guilt from a defendant's post-arrest silence. See, e.g., State v. Muhammad, 182 N.J. 551, 573-74 (2005) (finding improper the prosecutor's references inferring guilt from defendant's silence); State v. Lyle, 73 N.J. 403, 410 (1977) (concluding "it was manifestly improper to use defendant's silence to attack his self-defense theory as a fabrication"); State v. Deatore, 70 N.J. 100, 108-09 (1976) (disallowing the use for impeachment of defendant's silence while under interrogation by the police "at or near" the time of his arrest).

Defendant challenges the following statement:

But think about what [co-defendant] did. He got arrested. He gave a statement. He sat in the Detective Bureau alone. He had a right to an attorney. Don't want an attorney. You have the right to remain silent. Don't want to remain silent. Want to tell you what happened. And he tells them what happened. . . .

He said that the day he got arrested without

talking to an attorney, without remaining silent, without the Prosecutor's Office being there.

Without any deal, he told them what happened.

Reviewed in context, the prosecutor was responding to an argument made by defense counsel that Scudder was somehow protecting co-defendant's plea deal. The record does not reveal an improper attempt by the prosecutor to bolster co-defendant's credibility by contrasting co-defendant's willingness to talk to the police with defendant's exercise of his right to remain silent.

In fact, the prosecutor did not allude to defendant's silence. In summation, the prosecutor commented on the statements defendant made upon his arrest, before invoking his right to remain silent. The prosecutor stated: "What happened when he got arrested? Denied involvement, denied knowing [co-defendant]. Denied knowing [co-defendant]? He's known him for seven months." Such comments were "reasonably related to the scope of the evidence presented," see State v. Frost, 158 N.J. 76, 82 (1999), and were not constitutionally or otherwise objectionable.

Although we have rejected both arguments defendant advanced seeking reversal of his convictions and a new trial, his arguments relating to his sentence have merit. Defendant first argued that the trial court improperly imposed a life sentence for the first-degree robbery, pursuant to the Persistent Offenders Accountability Act, also known as the "three strikes" law, N.J.S.A. 2C:43-7.1. Defendant's prior armed robbery convictions were all on the same date, January 13, 1988, and he contended that he was ineligible for sentencing under "three strikes" because at the time this robbery occurred, December 25, 2002, the law required that the convictions for the two prior "strikes" occur on separate dates.

Defendant is correct, and the State agrees that we must remand for resentencing. See State v. Livingston, 172 N.J. 209, 213 (2002) (noting that the law required convictions "on two or more prior and separate occasions"); L. 2003, c. 48, 1 (amending the "three strikes" law to count prior convictions committed on separate occasions "regardless of the dates of the convictions").

Defendant also argued that the trial court erred when it imposed a twenty-year maximum sentence for attempted murder because it improperly considered aggravating factor two, harm to the victim, in violation of State v. Natale, 184 N.J. 466 (2005). The State, recognizing that the sentence was above the presumptive term and based in part on factors other than defendant's prior record, has agreed that defendant is entitled to be resentenced in accordance with Natale, id. at 489-90. We concur in this recognition.

Defendant asserted, in a pro se supplemental brief, that the State violated his constitutional rights by not identifying in his indictment that he would be subject to an enhanced sentence pursuant to the "three strikes" law. He further asserted the court violated Apprendi v. N.J., 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by increasing his sentence "based upon facts 'Never' submitted . . . to the Trial Jury and proven beyond a reasonable doubt." In view of the State's concessions regarding "three strikes" and Natale, these arguments are moot.

Accordingly, we affirm all of defendant's convictions, but vacate the life sentence and remand for resentencing in accordance with State v. Livingston and State v. Natale.

Affirmed in part, vacated in part, and remanded in part.

 

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A-3681-04T4

June 26, 2006