STATE OF NEW JERSEY v. JACKIE A. TERRY

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5416-02T55416-02T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACKIE A. TERRY,

Defendant-Appellant.

__________________________________

 

Submitted December 7, 2005 - Decided March 7, 2006

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-07-1016.

Jackie A. Terry, appellant, submitted a brief pro se.

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was tried on a one-count indictment on April 24 and 25, 2002. At the beginning of the second day of the trial, defendant terminated the services of his attorney, George Somers, Esquire, and proceeded pro se. He was convicted of second-degree robbery for knowingly using force upon Janice Healey, contrary to the provisions of N.J.S.A. 2C:15-1. Various post-trial motions were filed, and in October 2002, Kathleen C. Feeney, Esquire, was assigned to represent defendant. On March 21, 2003, she withdrew at defendant's request, and he proceeded to argue the motions unsuccessfully, after which sentence was imposed. The court granted the State's motion to sentence defendant as a first-degree offender pursuant to N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(3) and imposed an extended term of twenty years with a ten-year parole disqualifier, the maximum allowable sentence. The court found aggravating factors 3, 6, 9, and 11. There were no mitigating factors found by the court.

Defendant raises the following issues on appeal:

I. THE CONVICTION OBTAINED IN THIS MATTER BY EINBINDER'S KNOWING USE OF PERJURED TESTIMONY.

(A) ALL TRIAL TESTIMONY FALSE.

(B) JOSE ORTIZ AND BRADY VIOLATIONS.

(C) WHO IS BARRY BAKER?

II. INEFFECTIVE ASSISTANCE OF COUNSEL.

(A) GEORGE B. SOMERS.

(B) KATHLEEN FEENEY.

III. IMPOSITION OF A DISCRETIONARY EXTENDED TERM IS ILLEGAL.

We conclude that defendant's conviction should be affirmed but that the matter should be remanded to the trial court for resentencing in light of State v. Dalziel, 182 N.J. 494, 502-03 (2005), and State v. Natale, 184 N.J. 458, 487-88 (2005).

On June 15, 2001, victim Janice Healey, her boyfriend Edward Weinstein, and two friends, Rita and Karen, went to Finnegan's in Lakewood for dinner. After dinner the group drove to the Laketon Inn, a bar also in Lakewood. At approximately 11:55 p.m., Weinstein and Healey arrived at the Laketon Inn and parked in front of the bar. While in the vehicle, they noticed a man with dreadlocks walking away from the Laketon Inn. Rita and Karen, who were in a separate car, arrived shortly after the others and pulled up behind Weinstein's vehicle. As the group approached the bar, Weinstein turned and saw that the man with the dreadlocks had turned around and was heading back towards the bar. Weinstein testified at trial that he sensed something was wrong and told the women to "move it, let's hurry up." Weinstein held the door open, and Karen and Rita went into the bar ahead of him. Weinstein turned to look for Healey and saw her lying on the sidewalk.

Healey testified that she was thrown to the ground, and that she saw the person who pushed her down running away with her pocketbook. Healey identified defendant in court as the perpetrator. Weinstein testified that he yelled into the bar for someone to call the police, and then he stayed with Healey until the police arrived. Weinstein further testified that he noticed a couple of people run out the back entrance of the bar and chase the mugger. As a result of the robbery, Healey sustained injuries to her hands, arms, foot, and hip.

Jose Ortiz also arrived at the Laketon Inn at approximately 11:55 p.m. on the night of the robbery. He testified that he parked his car and was walking towards the bar when he observed a lady screaming hysterically about her purse and pointing at a person running with a purse. Ortiz gave chase. He identified defendant in court as the person he chased.

Ortiz testified that he saw defendant hiding behind a vehicle and going through a purse. He jumped over the vehicle in an attempt to capture defendant, but defendant got away. Ortiz continued to follow defendant, eventually catching him on the corner of Lexington Avenue and Second Street. He testified that a patrol unit arrived and put defendant in handcuffs.

Ortiz was listed on the police report as Angel Martinez, his cousin. Ortiz testified that he did not recall if he were asked to give his name and date of birth, and has no idea why he was listed by his cousin's name. Ortiz explained that he did give Angel Martinez's address because he was having problems receiving mail at his address. Angel Martinez was not present on the night of the robbery.

Lakewood Sergeant Guillermo Clarke was off-duty at the Laketon Inn when the robbery occurred. Clarke exited the bar, got into his vehicle and headed towards First and Lexington in an attempt to assist in the pursuit of the subject. Once there Clarke observed that the subject had been stopped at Second and Lexington. Clarke then exited his vehicle and ran over to Second and Lexington, where he observed the subject being held by an individual. Clarke grabbed the subject and placed him under arrest for the alleged robbery. Clarke testified that while being detained, defendant said "he didn't mean to do it, and that he needed the money." Clarke identified defendant in court as the person being held that evening.

Lakewood Patrolman Daniel Tworkoski was on duty on June 15, 2001, and was dispatched in response to the report of a robbery. Tworkoski was informed by Healey and other witnesses that Healey's purse had been snatched and she had been knocked to the ground during the incident. Witnesses described the person who was alleged to have committed the robbery as a black male wearing a white shirt, tall with dreadlocks. Tworkoski was present when Healey identified defendant at the scene of the crime as the person who had taken her purse.

Lakewood Patrolman Robert Anderson was also on duty at the time of the robbery. Anderson, responding to the call, arrived at Lexington Avenue from the south and met a group of people at Second Street, which is a block from the Laketon Inn. Upon arrival, Anderson observed other Lakewood officers and civilians with the suspect, who was arrested and placed in Anderson's car for transport. Anderson identified defendant in court as the person who was placed in his vehicle. Defendant was taken to headquarters where he was processed. The time recorded on his mug shot was 11:35 p.m. Defendant had $173.00 in his possession at the time of his arrest. Anderson testified that when he reported to Tworkoski that defendant had cash on him, defendant blurted out, "that's not all hers."

At trial, defendant testified he was on Second Street near the Laketon Inn and walked past the bar on the night of the robbery. Defendant further testified that he was walking up and down Second Street with his little brother, trying to get him to come home instead of buying drugs. Defendant stated that he saw a woman laying on the ground and yelling, but that he also heard a woman laugh, so he didn't take it too seriously. When defendant got to the corner of Second Street and Lexington Avenue, he claims to have seen a man with a pocketbook running out of Division Street into a parking lot shaped like an "L." After the man ran past, defendant looked back down Second Street and observed people gathered around a woman.

Defendant testified that by the time he went into the parking lot and found the pocketbook under a car, the alleged robber was already going over the fence towards the bus station. Defendant testified that the person he alleged was the robber looked a lot like him, except that his dreadlocks were not as long as those of defendant.

Defendant testified that he decided to recover the pocketbook from under the car. While in the process of getting the purse, defendant testified:

[T]his guy comes running around the car and says, there it is. And nobody gave me a chance. He tried to grab me, and I knocked him out and I ran, because there was three of them. Then I had a seizure and I fell.

Defendant testified that he suffered from epilepsy. He also testified that at the time of the seizure he was unable to talk because of the epilepsy. After defendant fell, he was handcuffed and put into a police car.

Defendant contends that he was deprived of a fair trial because the prosecution failed to disclose exculpatory material in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Constitutional principles prevent the prosecution from suppressing material, exculpatory evidence. Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; State v. Martini, 160 N.J. 248, 268-69 (1999); see also R. 3:13-3 (governing discovery in criminal cases). If evidence favorable to defendant had been suppressed by the State and that evidence was likely to have affected the verdict, the conviction could not stand. Martini, supra, 160 N.J. at 268-69. There are three elements of a Brady violation: the evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material. State v. Nelson, 155 N.J. 487, 497 (1998).

In this case defendant points to the inconsistency between the time on his mug shot, 11:35 p.m., and the time of the crime, 11:55 p.m. From this he claims that he was in police custody at the time of the robbery, having been picked up earlier on an alleged warrant for a parole violation. Defendant argues that the prosecutor had knowledge of this alibi, but failed to bring it to the court's attention. Therefore, he argues that everyone who placed him at the scene was lying, including himself.

This argument is simply fanciful. The evidence does not make a liar out of everyone at trial, including defendant. Clearly, someone forgot to change the clock on the camera after standard time was resumed in the spring. Furthermore, the mug shot had been supplied to defendant's counsel before trial, who obviously, and correctly, concluded that the time registered on it was not material.

Defendant next contends that the prosecutor violated the Brady rule by not explaining how the prosecution learned that Angel Martinez was really Jose Ortiz. The absence of this information was not critical in any fashion. The prosecutor supplied the correct name, address and telephone number to defendant's counsel before trial. The prosecutor did interview Ortiz before trial, and the public defender's investigator could readily have done the same thing. Defendant seems to suggest that Ortiz was not at the scene, but defendant himself placed him at the scene and testified that they fought. His attempt to disavow his trial testimony is unconvincing. This evidence was simply not material.

Defendant's final alleged Brady violation relates to Barry Baker, one of the bouncers at the Laketon Inn. He contends that Baker was the person who really chased, caught, and held him until the police arrived and, thus, Ortiz was a fabricated witness. As a result, he contends that Baker's testimony at trial would have shown that Ortiz was lying. Defendant contends that Baker would have testified that he saw defendant holding the purse, that Baker tackled him, that defendant got away, that Baker pursued him, and that Baker subdued him two blocks away. The dispute as to whether Ortiz or Baker was responsible for catching defendant could not have affected the outcome of the trial. There was no Brady violation with respect to Baker.

We turn to defendant's claims of ineffective assistance of counsel. In order to reverse a conviction based on ineffective assistance of counsel, a defendant must comply with a two-part test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). First, the defendant must show that counsel's performance was so deficient that the attorney "was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Ibid. Second, the defendant must show that the counsel's deficient performance had a prejudicial effect on the defense. Ibid. This two-prong test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58-60 (1987), which emphasized that there must be a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61.

Defendant contends that attorney Somers advised him to testify falsely at trial, assuring him that there were other witnesses who would establish that there was another man with dreadlocks at the scene of the robbery. Defendant also contends that attorney Somers never told him about the existence of Baker and did not tell him that he appeared at trial in response to a subpoena but was released by defendant's attorney. Defendant also claims that attorney Feeney failed to conduct an adequate investigation during the twelve weeks of extended discovery granted by the court on December 13, 2002.

We do not entertain ineffective assistance of counsel claims on direct appeal when they, as here, generally involve allegations and evidence outside the record on appeal. State v. Allah, 170 N.J. 269, 285 (2000); State v. Preciose, 129 N.J. 451, 460 (1992). As a consequence, these claims may be considered on an application for post-conviction relief.

Defendant next contends that the right to trial by jury precludes imposition of an extended term under N.J.S.A. 2C:44-3 absent submission of the predicate facts to a jury, relying on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Those cases preclude any increase in a presumptive sentence based on any aggravating factor that has not been found by a jury except for prior convictions. Under State v. Dunbar, 108 N.J. 80, 90-91 (1987), the sentencing judge is required to determine whether commitment for an extended term is necessary for the protection of the public, an issue which defendant claims must be submitted to a jury. This argument is without merit.

The court below considered defendant's prior criminal history which demonstrated that there was a pattern of crime, conviction, prison, parole and new crime with virtually no gaps in time and that the present offense occurred just two months after defendant was last paroled. The court also noted that each new crime was more violent than the prior crime, presenting a greater danger to the community. It then concluded that imposition of an extended term was necessary to protect the public. This conclusion did not violate Apprendi because it was based exclusively on defendant's prior criminal history. State v. Drew, ___ N.J. Super. ___, ___ A-3737-02T4 (App. Div. Feb. 3, 2006) (slip op. at 17); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002).

Next, we must consider whether the sentence of twenty years with a ten-year parole disqualifier was appropriate. In imposing sentence "before any judicial fact finding, the maximum sentence that can be imposed on a jury verdict or guilty plea is the presumptive term," and "the 'statutory maximum' for Blakely and Booker purposes is the presumptive sentence." Natale, supra, 184 N.J. at 484. "The elimination of the presumptive term also applies to extended terms embodied in N.J.S.A. 2C:43-7." Drew, supra, slip op. at 17.

The presumptive extended term for second degree offenses is fifteen years. N.J.S.A. 2C:44-1(f)(1)(b). Because defendant's sentence exceeded the presumptive term, resentencing is required, at which the sentencing judge "must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Natale, supra, 184 N.J. at 495-96.

The sentencing judge court gave heavy weight to aggravating factor (11), noting that "[f]ailure to impose a substantial term of incarceration would, in fact, send a message that any punishment is the mere cost of doing business, and that business being robbery." N.J.S.A. 2C:44-1a(11). In Dalziel, supra, 182 N.J. at 502-03, the Supreme Court held that this cost-of-doing-business aggravating factor has no application where the court is not balancing a non-custodial sentence against incarceration. In resentencing, aggravating factor (11) shall not be considered.

Affirmed in part, reversed in part, and remanded for resentencing.

 

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

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A-5416-02T5

March 7, 2006