STATE OF NEW JERSEY v. SEAN WALLACE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6260-03T46260-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN WALLACE,

Defendant-Appellant.

_________________________________________________

 

Submitted November 15, 2005 - Decided January 19, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

I-03-03-0349.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael

Confusione, Designated Counsel and

on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Sean Wallace was convicted of second-degree conspiracy to commit robbery in the first degree, N.J.S.A. 2C:15-1, and aggravated assault in the fourth degree, N.J.S.A. 2C:12-1b(4), contrary to the provisions of N.J.S.A. 2C:5-2 (count one), first-degree armed robbery, N.J.S.A. 2C:15-1 (count two), second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count three), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count four), third-degree criminal restraint, N.J.S.A. 2C:13-2 (count five), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count six). Following merger of counts three and one into count two, defendant was sentenced to fifteen years in state prison on count two, charging armed robbery, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to concurrent sentences on the other counts, as well as a concurrent sentence on a violation of probation to which defendant pled guilty.

On appeal, defendant raises the following issues through counsel:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR ACQUITTAL, JUDGMENT NOTWITHSTANDING VERDICT, AND NEW TRIAL.

POINT II

THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT A NEW TRIAL AFTER DETECTIVE VARGA TOLD THE JURY THAT DEFENDANT HAD BEEN ARRESTED AT THE COURTHOUSE ON A SEPARATE CHARGE.

POINT III

THE TRIAL COURT ERRED IN CHARGING SUA SPONTE SECOND-DEGREE ROBBERY.

POINT IV

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.

(Partially Raised Below)

POINT V

THE TRIAL COURT INFRINGED UPON DEFENDANT'S RIGHT TO CROSS-EXAMINE WITNESSES.

(Not Raised Below)

POINT VI

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

In a pro se supplemental brief, defendant also contends:

POINT I

THE FAILURE OF DEFENDANT'S COUNSEL TO PROVIDE AN INTERPRETER FOR HIM DURING TRIAL, AND THE FAILURE OF THE COURT TO ASSURE THE PRESENCE OF AN INTERPRETER, DENIED THE DEFENDANT A FAIR TRIAL IN VIOLATION OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.

POINT II

COUNSEL'S CONDUCT WAS INEFFECTIVE BY FAILING TO PROVIDE THE DEFENDANT WITH A JAMAICAN/ENGLISH INTERPRETER.

We affirm.

Defendant was tried together with co-defendant Orlando Richardson. The evidence at trial, which was convoluted and contradictory in its nature, was sufficient to establish that the victim, Miguel Valentine Tursty, had gone with his girlfriend to an apartment complex, where he was met by Zakari Elhamri (Zak), defendant, and Richardson. While the four men were in the vicinity of the apartment, defendant robbed Tursty at gunpoint, taking one-hundred dollars. During the robbery, Zak hit Tursty in the head with a gun, causing Tursty's ear to swell. Additionally, Richardson threatened to shoot Tursty in the foot, but did not do so until after Wallace stated: "[W]e come here for the money."

Thereafter, Zak and defendant, brandishing guns, along with Richardson, forced Tursty to travel with them by car to a Red Roof Inn, where Tursty and his girlfriend had taken a room, in order to obtain additional money. Threats were uttered by Richardson during the course of the ride. After Tursty unsuccessfully attempted to contact a friend allegedly possessing cash named Jean Carlos Abreu in an adjoining room, Tursty was taken from the motel back to the car and, after being driven by Richardson for some distance with defendant's and Zak's guns held to his sides, he was returned to the motel following receipt of a call from Abreu by Tursty on his cell phone.

Upon their return to the motel, Richardson remained in the car, while Zak, defendant and others accompanied Tursty to his room. At the door of the room, Zak and Abreu scuffled over a gun, and eventually, Zak and defendant returned to the car. Soon after Zak, defendant and Richardson pulled away, the police, who had been summoned to the motel, spotted and pursued the vehicle. However, when stopped, it contained only Zak and Richardson. No weapons or money were found in the car. An abandoned gun found elsewhere by the police was not dispositively linked to the crime or its participants.

Tracks in the snow led the police to a gas station, where they were informed that a man had just left in a cab. Following a week's investigation, defendant was arrested.

In contrast to this evidence, defendant testified at trial that he was a musician, and that he was at a recording studio in Brooklyn at the time of the events at issue, of which he knew nothing.

I.

On appeal, defendant first claims that a judgment of acquittal should have been entered in his favor, that a judgment notwithstanding the verdict should have been granted or that a new trial should have been ordered. In support of this claim, defendant points to inconsistencies in the testimony provided at trial, and he challenges the credibility of various witnesses, including Tursty. However, our careful review of the record discloses that sufficient evidence was adduced by the State to permit a jury to find defendant guilty of the charges against him beyond a reasonable doubt, State v. Reyes, 50 N.J. 454, 458-59 (1967) (stating standard for determination of motion for judgment of acquittal at the conclusion of the State's case). Additionally, we are satisfied that defendant has failed to demonstrate by clear and convincing evidence that the verdict was against the weight of the evidence and constituted a manifest denial of justice under the law. Id. at 463-64. See also R. 3:18-1 (motion at the close of the State's case), R. 3:18-2 (motion for judgment notwithstanding the verdict) and R. 3:20-1 (new trial).

There was direct testimony by Tursty with respect to each of the elements of the armed robbery, defendant's possession of a gun with which he threatened Tursty, and the criminal restraint, as we have set forth. Resisting arrest was supported by police testimony that defendant fled the car in which he and others had been riding after it was initially pulled over by the police but before it was finally stopped, and that he eventually escaped in a cab. Evidence sufficient to support the charge of conspiracy to commit armed robbery and aggravated assault by pointing a firearm was amply supplied by Tursty's testimony of the intentional participation of Zak and defendant in the conduct that was alleged. Indeed, direct evidence of a conspiracy to commit robbery was supplied by Wallace when he stated to Richardson that they had come for the money.

II.

Defendant next argues that the court erred in failing to grant a mistrial as the result of the erroneous introduction of evidence of other crimes in violation of N.J.R.E. 404(b) after a police officer testified to the existence of "a separate charge." The testimony was as follows:

Q. Detective, was a third individual by the name of Sean Wallace arrested in New Brunswick at a later date?

A He was. He appeared -

Q. Just -

A He appeared for court in New Brunswick.

Q You could say yes or no.

A For our charge or for a separate charge? He was -

Q If you can just stop for one minute. The question is was an individual by the name of Sean Wallace arrested?

A Yes.

The court denied a mistrial, noting that any implication that defendant had committed a prior crime could be eliminated by asking defendant, who was expected to testify, whether he had a prior record. Defendant did testify on his own behalf, and he denied any prior convictions. Further, at the time of the police testimony, defense counsel specifically stated that he did not wish a curative instruction.

In the circumstances, we find no reversible error. The comment was brief and ambiguous at best, and any negative import was diluted by defendant's unchallenged testimony that he lacked a prior record. We thus find that it was not clearly capable of producing an unjust result warranting reversal. State v. Harris, 156 N.J. 122, 172 (1998).

III.

Defendant also claims that the court erred in initially charging the jury on second-degree robbery, in re-charging it on that offense following a jury question as to whether conviction on that basis could be entered, and in then including second-degree robbery on an amended verdict sheet. We again disagree. Evidence in the record, if credited, could have rationally suggested that no guns were utilized in the course of robbery, since none was found by the police in the car after it was stopped, and an abandoned gun found later by the police could not definitively be linked to defendant or his companions. Moreover, some testimony indicated that Zak had utilized his fists, not a weapon, in assaulting Tursty during the robbery's course. Finally, evidence was presented that the injuries sustained by Tursty when hit by Zak were not serious in nature, and testimony as to the threats of bodily injury uttered by defendant and his companions was ambiguous in its content. Thus, the court's charge on the lesser offense was warranted by the evidence adduced at trial, N.J.S.A. 2C:1-8e, and it was appropriate for the jury to have been instructed that conviction of that lesser charge should be considered by it. State v. Muhammad, 182 N.J. 551, 577 (2005). In any case, we find no prejudice from the charge, which afforded the jury the opportunity to convict defendant of a lesser, not a greater, crime.

IV.

Defendant additionally argues that prosecutorial misconduct occurred, consisting of the following: (1) characterizing the events as a "betrayal of friendship" in her opening statement; (2) in cross-examination of defendant regarding the disparity between his alibi and the testimony of other witnesses, stating "[s]o basically, Mr. Wallace, you want the jury to believe . . ."; (3) allegedly lowering the State's burden of proof by stating during closing that there was "no question that Sean [Wallace's] and Orlando [Richardson's] purpose along with Zak was to promote and facilitate the commission of that armed robbery"; and (4) inappropriately vouching in closing argument for Juan Carlos Abreu, a witness involved in the fighting that occurred at the motel, by stating that Abreu had "no ax to grind" and "came here and . . . was honest. He told you exactly what happened."

We find none of these comments sufficient to warrant a retrial. The statement by the prosecutor in her opening that the events constituted a betrayal of friendship was premised on evidence to be presented that Tursty was a friend of at least two of his attackers and was thus proper. State v. Timmendequas, 161 N.J. 515, 577 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Chew, 150 N.J. 30, 84 (1997). Her characterization in closing of defendant's purpose, although perhaps inartful, clearly related to the charge of conspiracy against him, and cannot reasonably have been interpreted by the jury as diminishing the State's burden of proof.

While the prosecutor's statement with respect to the truthfulness of Abreu constituted impermissible vouching, no objection was raised to it at the time it was made. In light of that fact, the brevity of the comment, and the overall unexceptionable nature of the prosecutor's closing, we do not find the remark so egregious as to have deprived defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987).

We similarly find no reversible error to have been committed by the prosecutor when she challenged the credibility of the defendant in her cross-examination of him by asking defendant whether he wished the jury to believe that witnesses testifying against him were not credible. Although a request that a defendant assess the credibility of other witnesses was improper, State v. Bunch, 180 N.J. 534, 549 (2004), in light of the substantial evidence of defendant's guilt and the court's instruction to the jury that it was their obligation to weigh the credibility of the witnesses at trial, we do not find the statement so egregious as to require a new trial. Ibid.

V.

We likewise find that it was within the court's discretion to instruct co-defendant's counsel to "move along" with cross-examination of the victim Tursty and to limit the length of that cross-examination. The court's actions did not in the circumstance deprive either defendant of his Sixth Amendment rights.

The record reflects lengthy and unnecessary examination on issues such as the ownership of Tursty's cell phone, the identity of his phone service, legal responsibility for the bill, as well as extended examination on peripheral facts associated with the events at issue. The court did not abuse its wide discretion in imposing reasonable limits on questions of this sort. The Confrontation Clause of the Sixth Amendment does not prevent a trial judge from imposing limits on defense counsel's inquiry into the potential bias of a prosecution witness, and may impose reasonable limits on cross-examination that is repetitive or only marginally relevant. State v. Cuni, 303 N.J. Super. 584, 608 (App. Div. 1997) (quoting Delaware v. VanArsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)), certif. denied, 152 N.J. 12 (1997); see also N.J.R.E. 611(a). Further, we find no evidence that co-counsel was precluded from exploring relevant areas of inquiry or advancing the defenses of either defendant.

VI.

We find that defendant's argument through counsel that his sentence was excessive, and his pro se arguments both that he was unconstitutionally deprived of a Jamaican interpreter and that his trial counsel's conduct was ineffective in not obtaining an interpreter so he could converse with his client in Jamaican to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant was sentenced to a presumptive term of fifteen years in custody, subject to the parole disqualification of NERA. No mitigating factors were found that could have served to reduce the sentence below that imposed. The sentence was thus not excessive.

Defendant's argument that he required a Jamaican interpreter is raised for the first time on appeal. Although he now claims that his native language is Jamaican and that he was unable to speak or understand English at the time of trial, it is clear from the transcript, including defendant's own testimony, that defendant possessed a good knowledge of English and a reasonable ability to communicate in that language. Defendant was articulate in his answers to the questions posed of him, and he never indicated on the record any difficulty in following what occurred at trial or in understanding defense counsel.

Affirmed.

 

Defendant's appeal was scheduled and decided simultaneously with this case. See State v. Richardson, No. A-6299-03T4 (App. Div. January __, 2006).

The jury had been instructed on second-degree robbery by the court in its initial charge. However, that lesser crime had not then been listed on the jury verdict form.

(continued)

(continued)

14

A-6260-03T4

 

January 19, 2006