STATE OF NEW JERSEY v. KEVIN E. BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3854-04T43854-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN E. BROWN,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 20, 2006 - Decided October 24, 2006

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

04-07-1482.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Wroblewski, Designated

Counsel, of counsel, on the brief).

Anne Milgram, Acting Attorney General of New

Jersey, attorney for respondent (Adrienne B.

Reim, Deputy Attorney General, of counsel and

on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kevin E. Brown appeals from a judgment of conviction entered on January 14, 2005 after a jury found him guilty of second degree robbery, N.J.S.A. 2C:15-1a(1). He was sentenced to an extended term of fifteen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

These charges arose out of an incident that occurred on May 30, 2004 at approximately 1:30 a.m., when David Smith and his friend Dorothy Fazeli were at the Sands Casino in Atlantic City. Smith was playing a nickel slot machine and Fazeli was sitting at the machine next to him. After a few minutes, a man, later identified as defendant, asked Fazeli if he could play the machine where she was sitting. She gave him the seat and stood behind Smith. The three "made small talk" for about five minutes and Smith noted that defendant had a jacket over his arm, which he thought that was odd because it had been very warm. After a few minutes, Smith felt defendant's jacket brushing his leg and defendant's hand in his pocket. Smith jumped up, grabbed defendant's hand, said, "What the hell are you doing?" and called security. Defendant jumped up, pushed Fazeli and grabbed her arm, twisting it, before running away.

Lawrence Wagner, a security supervisor at the Sands, heard someone yelling from the casino floor. Smith told him that defendant had tried to take his money. Defendant was standing in the foyer and Smith pointed him out to Wagner. Before defendant ran out of the Sands toward Bally's, Wagner had the opportunity to get a good look at him and followed him toward Bally's, ultimately apprehending him at the Claridge Hotel. As they returned to the Sands, however, defendant attempted to flee and Wagner called for backup. Defendant was taken into custody and delivered to the Sands. Wagner turned defendant over to State Trooper James Calderella who had interviewed Smith and Fazeli and took Fazeli's statement.

In this appeal, defendant argues:

POINT ONE

THE TRIAL COURT COMMITTED ERROR BY NOT DISMISSING THE INDICTMENT, THEREBY DENYING MR. BROWN DUE PROCESS OF LAW.

POINT TWO

THE TRIAL COURT COMMITTED ERROR IN DENYING DEFENSE COUNSEL'S MOTION TO EXCLUDE CASINO WORKERS FROM THE JURY, THEREBY DENYING MR. BROWN'S RIGHT TO AN IMPARTIAL JURY.

POINT THREE

THE TRIAL COURT'S [sic] COMMITTED ERROR BY FAILING TO CONDUCT AN ADEQUATE VOIR DIRE OF THE JURY, THEREBY DENYING MR. BROWN HIS RIGHT TO A FAIR AND IMPARTIAL JURY (partially raised below).

POINT FOUR

THE TRIAL COURT ERRED IN NOT ADMITTING OUT-OF-COURT STATEMENTS OF MR. BROWN.

POINT FIVE

DURING HER SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED MR. BROWN OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (not raised below).

POINT SIX

THE EXTENDED TERM SENTENCE IMPOSED BY JUDGE DONIO WAS AN ABUSE OF DISCRETION AND WAS UNDULY EXCESSIVE.

POINT SEVEN

THE SENTENCE IMPOSED BY THE COURT VIOLATED MR. BROWN'S RIGHTS UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

In his supplemental pro se brief, defendant argues:

POINT ONE

DEFENDANT'S CONVICTION FOR ROBBERY MUST BE REVERSED BECAUSE INADEQUATE INSTRUCTIONS ON ROBBERY ON A THEORY OF ATTEMPTED THEFT DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (not raised below).

POINT TWO

THE TRIAL COURT'S FAILURE TO GIVE A CAUTIONARY INSTRUCTION THAT GUARD AGAINST POTENTIAL PREJUDICE, IS REVERSIBLE ERROR, BECAUSE THE DEFENDANT DID NOT TESTIFIED [SIC] AT HIS TRIAL AND TESTIMONIES THAT HE ENTERED THE COUNTY JAIL WAS BEFORE THE JURY. THEREBY DEPRIVED HIM RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. V, IV; XIV; N.J. CONST. ART. I. 10 (not raised below).

Prior to trial, defendant moved to dismiss the indictment on the ground that a surveillance videotape at the Sands had been destroyed and not made available to him in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). Jauncie McNeil, a surveillance supervisor at the Sands, and Trooper Calderella testified with respect to the videotape. McNeil testified that on May 30, 2004, she was asked to retrieve the tape and review it to determine whether she could identify a black male with a dark shirt and a coat over his arm. She indicated that the tape showed a very long distance shot and was of poor quality because the system took time lapse still photos, giving the tape "a slow motion-type effect." She said none of the figures on the tape could be identified.

Calderella testified that he also reviewed the tape on the night of the incident after he interviewed Smith and Fazeli. He indicated that the tape was of such poor quality that it was not useful in identifying any of the individuals involved in the incident. When Calderella left without the tape, McNeil allowed it to be destroyed or recycled after a seven-day period in accordance with the Sands' policy.

After hearing the testimony and arguments, the trial judge found McNeil and Calderella credible. He reviewed the factors outlined under Brady and related cases and stated:

When evidence is destroyed that is potentially exculpatory, a due process violation will be found only if defendant can show bad faith on the State's part. Good or bad faith is evident when destruction is a calculated effort to suppress exculpatory evidence or circumvent the Brady disclosure requirement. Evidence of destruction in the normal course of business or in accordance with normal procedures cannot be deemed destruction in bad faith.

[Discussing Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).]

And that's exactly what happened here: the tape was recycled in accordance with normal procedures and in accordance with the normal course of business.

The judge concluded that there was no Brady violation since the tape had no exculpatory value because of its poor quality. He noted that defendant presented no evidence to demonstrate that the tape was destroyed in bad faith and that two eyewitnesses positively identified defendant and testified from their first-hand knowledge.

In this appeal, defendant argues that "even if the face of a person could not be discerned due to the distance of the shot, an identification of a tall, male African-American sitting at the fourth or fifth machine from the door could have been made. The testimony shows that, at the very least, it was possible to see if this person sitting at the fourth or fifth machine was actually playing the machine." To qualify as Brady material, however, the evidence must be sufficiently material to the defense to warrant dismissal of the indictment. Youngblood, supra, 488 U.S. at 56-58, 109 S. Ct. at 336-37, 102 L. Ed. 2d at 288-90; State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). Sufficiently material evidence is that which has a critical exculpatory value that defendant would be expected to use in his defense. Hollander, supra, 201 N.J. Super. at 479-80 (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984)).

In short, we agree with the trial judge's findings that no bad faith was demonstrated; that the tape was destroyed because the two people who reviewed it found it to be of such poor quality that none of the individuals involved in the incident could be identified; and that the poor quality of the tape rendered it immaterial to the defense.

In his next two points, defendant argues that the trial court erred in failing to grant his motion to exclude casino workers from the jury and failed to conduct sufficient voir dire to assure impartial jurors. He maintains that five members of the jury worked in the casino industry, denying him a fair and impartial trial.

During voir dire, the trial judge asked the jurors their occupations and that of their immediate family members. All of the jurors were asked if they could accept the law as the judge gave it to them at the end of the trial and render a fair and impartial verdict. Defense counsel did not object to the voir dire questions, nor did he ask the judge to question any of the jurors further with respect to their own or family members' employment in the casino industry.

Defendant does not demonstrate any specific bias on the part of the jurors but simply states in his brief: "Given that more than one-third of this jury that heard this case had a direct affiliation with the casino industry, defense counsel's motion [to exclude casino workers] should have been granted."

A trial judge's exercise of discretion in voir dire is subject to reversal only on a showing of prejudice in that the voir dire failed to afford defendant an opportunity to select an impartial and unbiased jury. State v. Fortin, 178 N.J. 540, 575 (2004). The right of a defendant to a fair and impartial trial requires that he have an opportunity for full inquiry where the circumstances strongly suggest a juror's potential bias. State v. Deatore, 70 N.J. 100, 104-06 (1976). Even if we found that the court erred in failing to excuse the jurors for cause, defendant did not exhaust his preemptory challenges. State v. Williams (II), 113 N.J. 393, 464-66 (1988); State v. Bey (II), 112 N.J. 123, 151-54 (1988); State v. Singletary, 80 N.J. 55, 62-65 (1979). Since defendant had eleven unused preemptory challenges, we find no reversible error in the jury selection process.

When he was arrested, defendant made several statements to Calderella, including, "I'm not guilty because I didn't take anything." He now argues that the trial court erred in excluding his post-arrest statements. He maintains that the statements were admissible as excited utterances under N.J.R.E. 803(c)(2).

After hearing argument on the admissibility of the statements, the judge noted that the statements were "classical hearsay" and "exculpatory." The judge found that the statements did not qualify as excited utterances because defendant had "an opportunity to deliberate or fabricate." Moreover, the judge noted that

if the defendant were to testify and testify as to what happened when he was arrested and what he said, that's a different story, but to get it before the jury and not have the defendant subject to . . . cross-examin[ation], it's a classic hearsay[,] self-serving exculpatory statement, and then to try to say that it is [an] excited utterance is merely trying to get into the back door what you can't get in through the front door.

We agree.

In determining whether a statement is admissible as an excited utterance, the trial judge must consider whether the declarant had the opportunity for deliberation or reflection before the statement was made. State v. Branch, 182 N.J. 338, 365-67 (2005). A self-serving exculpatory statement made by a defendant after his arrest cannot be considered an excited utterance under N.J.R.E. 803(c)(2). State v. Rivera, 351 N.J. Super. 93, 100-01 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003); State v. Ryan, 157 N.J. Super. 121, 126-27 (App. Div. 1978).

During summation, the prosecutor stated:

Also consider . . . what motive does Jauncie McNeil have to hide anything? Why would she try to cover up for anyone? She is just doing her job. She is the supervisor of surveillance. Why would she try to hide or destroy evidence or be in collusion with anyone? She looked at the tape. She said you can't see anything, it is inconclusive, it is not helpful and she let the trooper view it. So what motive would she have to lie or to make this up?

Referring to Calderella's review of the tape, the prosecutor stated:

If he was really, really trying to destroy or hide it he would have said no video coverage, and that would have been the end of it. I submit to you he did the right thing. He explained to you what he did and why he did it.

The prosecutor's remarks were in response to defense counsel's remarks in his summation:

And, also, the tragedy is that the videotape was destroyed. There was a surveillance tape. Now, these tapes are used for a reason. The casino had this kind of surveillance system for 10 years. They want to say now it's a lousy system, it is terrible. If it was so lousy why did they use it for 10 years? . . .

What happened is - and the officer was pretty honest with that, he couldn't make out the faces like he couldn't tell my face from your face, your face from your face, but you could make out the size of the bodies. You can make out if somebody is five feet tall or 6'2". You could also make out if somebody was running or a fight. They said they could tell the size, the gender was it male or female, whether they were running, whether there was an assault taking place, and that tape when he reviewed that during the time that incident allegedly occurred he saw no violence, no assault, no running, nothing like that. And that's a shame that that tape could have been enhanced. I submit we have technology that can enhance that tape. We could have resolved that thing and we wouldn't be here today because the tape wouldn't have showed anything that what the State contends. It would have showed the opposite, the guy just left and that was it. So it is a shame that tape was destroyed. We can never get that evidence back.

And, also, Jauncie McNeil, she corroborated that that's why they have surveillance tapes in the casino. They can make out the form the size of the people, how tall they were, how short they were. There was nothing that showed anything about a robbery or an assault or anything in that tape, and I'll tell you if that tape had showed anything that would have been the most valuable piece of evidence in the world. They weren't sure. She said it didn't clearly show anything. And I said how far away were you, and if you recall it was about maybe from here to the end of that door. Now, you can make out people, maybe you can't see the faces, but you can sure as heck see that sheriff officer sitting - he is not some skinny guy, you can see the size he is. He is six feet tall, over 200 pounds. You can see what kind of size he is, so you don't have to see the face to know there's a big guy sitting a back there or a little woman. That took away a valuable right of my client, and you can't get that back. And she shouldn't have done it, but, unfortunately, that's what happened.

Defendant now argues that the prosecutor improperly stated that McNeil and Calderella had no reason to lie to the jury when they said the surveillance tape had no evidentiary value. We note, however, that defendant made no objection at trial, which infers that he "did not believe the remarks were prejudicial [when] they were made." State v. Frost, 158 N.J. 76, 84 (1999). R. 2:10-2. When defense counsel fails to object at trial, we presume that counsel saw no prejudice to defendant at the time. State v. Mays, 321 N.J. Super. 619, 630 (App. Div.), certif. denied, 162 N.J. 132 (1999). A timely objection would have allowed the trial judge to provide a curative instruction to the jury before it retired to deliberate. State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997); State v. Bauman, 298 N.J. Super. 176, 206-07 (App. Div.), certif. denied, 150 N.J. 25 (1997). Defendant's failure to object also limits our standard of review to a consideration of whether the comments were plain error "clearly capable of producing an unjust result." R. 2:10-2. Taking the prosecutor's remarks in the context of defense counsel's comments during summation, we find no plain error. State v. Nelson, 173 N.J. 417, 473 (2002).

Defendant's sentencing arguments lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(1)(E). The imposition of an extended term was clearly appropriate given defendant's criminal history consisting of eighteen prior convictions, nine of which were for indictable offenses. N.J.S.A. 2C:43-7; 2C:44-3. Nevertheless, we add the following comments.

In State v. Pierce, 188 N.J. 155 (2006), the Supreme Court recently held that "a sentencing court does not engage in impermissible fact-finding when it assesses a prior record of convictions and determines that a defendant is statutorily eligible for a discretionary extended term as a persistent offender." Id. at 158. The Court, however, modified the procedure for imposing an extended term with respect to

the timing and purpose of the judicial fact-finding related to the "need for protection of the public." That finding is not made until after a defendant has been determined to be subject, for Apprendi purposes, to a sentence up to the maximum of the discretionary extended-term range based on statutory eligibility as a persistent offender. The determination of the length of sentence imposed on a defendant and whether that sentence should be within the permissibly enhanced range are, and henceforth must be regarded as, separate and distinct from the court's determination of the top of the entire range of sentences to which a defendant is potentially subject as a persistent offender. The sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant, for purposes of Apprendi, becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.

[Id. at 168.]

The Court added:

Pursuant to our holding today, once the court finds that those statutory eligibility requirements are met, the maximum sentence to which defendant may be subject, for purposes of Apprendi, is the top of the extended-term range. Stated differently, the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. By recognizing that the top of the extended-term range is the "top" applicable to a persistent offender, we do not make mandatory a defendant's sentencing within the enhanced range. Rather, we merely acknowledge that the permissible range has expanded so that it reaches from the bottom of the original-term range to the top of the extended-term range. Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found.

[Id. at 169.]

Here, the trial judge undertook the analysis required under State v. Dunbar, 108 N.J. 80, 91-92 (1987), in deciding to impose an extended term: he found that defendant met the statutory criteria for an extended term under N.J.S.A. 2C:43-7, 2C:44-3; weighed the aggravating and mitigating factors; determined that protection of the public "is paramount in this case;" and imposed a fifteen-year term, subject to NERA.

The imposition of the fifteen-year term, subject to NERA, is well within the range for an extended term for a second degree offense. Pierce, supra, 188 N.J. at 169. We find no abuse of discretion in the sentence. State v. Roth, 95 N.J. 334, 364-66 (1984).

In his pro se brief, defendant argues for the first time on appeal that the jury instructions on attempted theft were inadequate. Since this issue was not raised in the trial court, it is subject to the plain error standard. R. 2:10-2; State v. Harris, 373 N.J. Super. 253, 270 (App. Div. 2004), certif. denied, 183 N.J. 257 (2005). We have carefully reviewed the entire jury charge and we are satisfied that the judge instructed the jury on each element of each offense and gave all of the appropriate charges. We find no error in the jury charge.

In his pro se brief, defendant claims that the trial court failed to give the proper cautionary instruction regarding his failure to testify. The record, however, demonstrates that the proper instruction was included.

Defendant finally argues that Calderella's testimony was unduly prejudicial when he mentioned that defendant was taken to the county jail after his arrest. There was no objection to this testimony at trial. Obviously, the jury knew that defendant had been arrested on the charges. We do not consider this brief, cursory reference to defendant's incarceration to be prejudicial, and we find no error in this testimony. State v. Zhu, 165 N.J. 544, 553-56 (2000).

 
Affirmed.

(continued)

(continued)

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A-3854-04T4

October 24, 2006