STATE OF NEW JERSEY v. IBN ALI ADAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4915-03T44915-03T4

A-6307-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBN ALI ADAMS,

Defendant-Appellant.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES COMER,

Defendant-Appellant.

______________________________________________________

 

Submitted November 28, 2006 - Decided December 28, 2006

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, No. 03-01-0231.

Yvonne Smith Segars, Public Defender, attorney

for appellant Ibn Ali Adams in A-4915-03T4 (Alan I. Smith, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant James Comer in A-6307-03T4, (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent in A-4915-03T4 (Leeann Cunningham,

Assistant Prosecutor, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent in A-6307-03T4 (Leeann Cunningham,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendants Ibn Ali Adams and James Comer guilty of felony murder, four separate robberies, and related offenses, all committed during two consecutive days in April 2000. The convictions were based on the testimony of defendants' accomplice, Dexter Harrison, eye-witness identifications by the three surviving robbery victims, and the arrest at the end of this crime spree of all three defendants, still together and still in possession of the car used in the robberies and murder, one of the handguns, and items stolen from the victims. Adams's aggregate sentence was imprisonment for sixty-seven years with 61.45 years to be served without parole. Comer's aggregate sentence was imprisonment for seventy-five years with sixty-eight years and three months to be served without parole.

On appeal, neither defendant contends that the verdicts were against the weight of the evidence. Consequently, and because the evidence of guilt was so overwhelming, we will describe and discuss the relevant facts, as necessary, during our disposition of each of the points raised on appeal.

Both defendants contend that the trial judge should have excluded, as the product of unduly suggestive police procedures, the eye-witness identifications of Deru Abernathy, the victim of the first robbery; Alyson Gardner, the victim of the third robbery; Tassandra Wright, the victim of the fourth robbery; and Dinis Sachdeva, who was working as an attendant at the gasoline station where the defendants and their accomplice were arrested at the end of the crime spree. They also contend that the trial judge should have declared a mistrial at the end of the testimony of their accomplice, Dexter Harrison.

The judge found that the identification methods used by the police were suggestive for the most part. In essence, that finding was based on the following facts. Abernathy was shown fifteen to twenty photographs one at a time, but was advised that the suspects might be among them. Although this witness immediately identified the defendants when he saw their photographs, the officer testified that the other photographs were not similar enough in appearance to the defendants, and he also indicated that he did not retain those photographs. Gardner was shown three photographs, one of each defendant. Wright was also shown three single photographs of the defendants. Sachdeva, who had identified the defendants at the scene of their arrest, was also shown single photographs of the defendants.

The judge then determined that defendants had not proven by a preponderance of the evidence that the "procedures used were so impermissively suggestive so as to result in a substantial likelihood of misidentification." With regard to that conclusion, he noted that the witnesses were "quite certain" about their identifications; that they all had an adequate opportunity to focus on the defendants' faces during the commission of the crimes; that the descriptions they gave were consistent with defendants' physical characteristics; and that the time between the crimes and the identifications was "relatively short." Those findings are supported by credible evidence in the record. When a trial judge is satisfied that the identifications are reliable, they may be admitted into evidence notwithstanding the suggestive nature of the identification procedure. State v. Madison, 109 N.J. 223, 232 (1988). Moreover, even if the trial judge erred with respect to any of the identification rulings, given the balance of the evidence of guilt, in particular the accomplice's testimony and defendants' possession of the victims' possessions shortly after the last robbery, in the vicinity of the vehicle used to commit the crimes, the error was harmless. R. 2:10-2 ("Any error . . . shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .").

The mistrial motion was based on this testimony by the accomplice, Harrison:

[Prosecutor]: You gave a statement to police officers?

[Harrison]: Detectives, yeah.

[Prosecutor]: Detectives.

[Harrison]: Yeah.

[Prosecutor]: Okay. Prior to giving this statement at the Hudson County jail, did you look at any police reports?

[Harrison]: Yeah.

[Prosecutor]: Which ones?

[Harrison]: Reports on our charges, me, Adams and Comer charges, and a statement that was given from Mr. Adams to the officer.

In fact, Adams had not given a written statement to the police, and Harrison's answer that he did was not responsive to the prosecutor's question. Adams had made an oral statement that the prosecutor agreed was not to be used in the case. Adams argues that the prosecutor deliberately obtained the answer given in violation of assurances that no reference would be made to the oral statement. But there is no evidence to support that claim; indeed the record cited above is to the contrary.

After denying the motion for a mistrial, the judge instructed the jury as follows:

You may or may not have heard a reference being made with regard to whether or not any individual charged with a crime as a result of this case may or may not have given any statement to anyone, whether it be written or oral.

There has been no evidence here presented to you that . . . either of the defendants made any statement with regard to anybody about anything. To the degree to which there was an impression left with regard to that subject, an impression . . . in any of your minds that any such statement was made, you are to disregard that.

We are satisfied that the judge's decision denying the mistrial motion was well within the allowable degree of discretion. State v. DiRienzo, 53 N.J. 360, 383 (1969). In this case, the impact of the statement would have been minimal at worst, and the charge was more than adequate to assure that the jury would not be influenced by the improper reference. State v. Winter, 96 N.J. 640, 646-48 (1984).

Adams argues that he was denied a fair trial because of the admission of irrelevant and emotional "victim impact" testimony given by the deceased victim's aunt, Vera Dowdell. But all she did was describe this victim's activities on the day he was shot, briefly noting that he had gone shopping with his wife and three sons. There was no objection at trial, and the evidence can not be fairly described as the kind of victim impact testimony that concerned the Court in State v. Williams, 113 N.J. 393, 446-54 (1988), which is the case on which Adams relies for this point. There was no error in the admission of this testimony, and there certainly was no plain error.

Adams argues for the first time that the judge erred in failing to tell the jury that in weighing Harrison's testimony it should take into account his plea agreement. And he also claims the judge further erred in failing to tell the jury that Harrison's guilty plea could not be used as substantive evidence of Adams's guilt. Under the plea agreement, Harrison's punishment for aggravated manslaughter and several counts of first degree robbery was limited to imprisonment for twenty years with seventeen years to be served without parole.

The first argument is entirely unsound. None of the cases Adams relies on, State v. Gross, 216 N.J. Super. 98 (App. Div.), certif. denied, 108 N.J. 194 (1987), State v. Laboy, 270 N.J. Super. 296 (App. Div. 1994), and State v. Spruill, 16 N.J. 73 (1954), support the proposition that such a charge must be given, although Spruill does indicate that it normally should be given if requested. Id. at 80-81. The second argument, that the charge should have advised the jury that the guilty plea by Harrison was not substantive evidence of Adams's guilt is correct, State v. Stefanelli, 78 N.J. 418, 433-36 (1979), but the Court in Stefanelli also held that the failure to give the charge was harmless error. Id. at 435-37. The circumstances in this case parallel those in Stefanelli, and thus we are satisfied that the error was harmless.

Comer argues that he was denied a fair trial by prosecutorial misconduct. During his opening remarks the prosecutor made the following statement:

As I mentioned to you before, ladies and gentlemen, you are the fact-finders in this case, you will ultimately deliberate as to the facts in this case and it's your determination that's holding this case. And after you hear the evidence, ladies and gentlemen, and you see the evidence from the State, those bricks will come tumbling down. Defendants will be there and there will be no other decision you can make but to find them guilty of all the counts in the indictment.

Comer's attorney objected and asked for a curative instruction advising the jury that it would have the option of finding defendant not guilty. The judge said that he would charge on the issue at the appropriate time, and, indeed, during his final jury charge he repeatedly advised the jury that it had the option of finding the defendants guilty or not guilty. Comer agues that the remark improperly implied that the jurors would violate their oath if they failed to return a guilty verdict. We disagree. Read in context, the remark merely indicates that the evidence would point to only one conclusion, guilt, and that is not an improper statement.

During summation the prosecutor made this remark:

Did Dexter Harrison just pick up two people that Alyson Attabola could identify? No, ladies and gentlemen. Use your common sense and everyday reasoning. See the evidence, look at what each piece of evidence tells you about another. Don't isolate them in a vacuum and pick them apart. That's defenses's jobs [sic]. Look at all the evidence; trials, the verdict, it's about truth. Look at it all together, ladies and gentlemen, because it speaks to you. You'll understand when you put it all together, all the pieces reflect on a whole. And when you're done, that whole will reflect on all the little pieces of evidence that have come before you.

Although a prosecutor may not denigrate the defense, State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992), that is not what happened here. Rather, the prosecutor was responding to defense counsels' attempts to create reasonable doubt by separately attacking individual pieces of evidence. The thrust of the argument is that the evidence should be considered collectively, and there is no error in that position.

Comer's last point regarding the trial of the case concerns two notes sent out by the jury during their deliberations. The first note, which was sent out on the second day of deliberation, asked whether "a juror ha[s] an obligation to explain why he or she is voting a specific way (guilty versus not guilty)," and further inquired "[w]hen do we communicate to the judge [that we have a] . . . hopelessly hung jury?" Without objection, the judge replied as follows:

The best I can do is answer the question this way, and remind you of your duty.

Ladies and gentlemen, it is your duty as jurors to consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion, if convinced it's erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans, you are judges, judges of the facts.

Please return to the jury room and continue your deliberations.

At 4:00 p.m., after a brief period of further deliberation, the jury sent out a note advising the judge that "the reason we cannot come to a conclusion is because one juror does not want to deliberate." Defense counsel asked for a mistrial; the judge denied the motion and instructed the jury as follows:

I take [your note] at its face value. I do not conclude from that anything other than what it says, and that is . . . that it is the opinion of the jury that one juror is refusing to deliberate.

I will only do the following, remind you it is your duty as jurors to deliberate, to consult with one another with a view to reaching an agreement. I cannot make the conclusion or reach the conclusion that the jury is unable to reach a unanimous decision as to each or any one or more of the counts of the indictment relative to either one or both of the defendants based upon the information that you have provided me at this point.

I, therefore, conclude it is only my obligation at this point to once again remind you of your sworn duty to deliberate and request that you be cognizant of that duty and return here tomorrow morning . . . to continue your deliberations pursuant to that duty.

Relying primarily on State v. Vergilio, 261 N.J. Super. 648 (App. Div.), certif. denied, 133 N.J. 443 (1993), Comer argues that the judge committed reversible error by failing to interrogate the jury to determine the nature of the problem with the "non-deliberating" juror. Vergilio does not support Comer's argument. That case involved a distraught juror who reported to the judge at the conclusion of a day of deliberations that he felt deeply stressed by the treatment he was receiving from the other jurors who all disagreed with his view of the case and who refused his request for certain questions to be addressed to the judge. The judge directed the jury to continue its deliberations. We held that the judge erred because the juror was not just recalcitrant, but was "distraught" and "had apprised the court of significant unfair treatment." Id. at 655. In that unusual circumstance, we were satisfied that the direction to continue was likely to have a "coercive" effect on the distraught juror. Ibid.

Although it appears that the juror in the subject case was a hold-out, there was no indication of pressure or ridicule or a failure of the jury to comply with his requests. Rather, the questions indicate that the juror was simply not deliberating. Furthermore, the judge's responsive charge clearly implied that if the jury believed it was deadlocked it should make that fact known. Instead, after a few more hours of deliberation, the jury reached its verdict. In these circumstances, we perceive no basis for ruling that the judge erred in his supervision of the jury's deliberations by failing to inquire about the presence of undue coercion.

In a supplemental pro se brief, Comer argues that the judge erred in his handling of the jury questions discussed above and in the manner in which he polled the jury. After carefully considering the record and briefs, we are satisfied that those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Finally, both defendants take issue with the sentences imposed. First, we will consider Adams, who was sentenced as follows: on count three, felony murder, N.J.S.A. 2C:11-3(a)(3), imprisonment for thirty years without parole; on counts seven and ten, first degree robbery, N.J.S.A. 2C:15-1, imprisonment for fifteen years with 85% parole ineligibility under the No Early Release Act ("NERA"), consecutive to count three and to each other; and on count thirteen, second degree robbery, N.J.S.A. 2C:15-1, imprisonment for seven years, to run consecutive to counts three, seven and ten. Concurrent sentences, as to which there is no issue, were imposed on counts charging related weapons offenses and on one count charging theft. As previously noted, the aggregate sentence was imprisonment for sixty-seven years with 61.45 years of parole ineligibility.

Adams's first point is that the judge erred by failing to find mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13), the "conduct of a youthful defendant was substantially influenced by another person more mature than the defendant." He argues that his conduct was influenced by Harrison, but Harrison was only twenty-two when the crimes occurred, and there is no evidence that he influenced Adams at all. Rather, the evidence is that all three defendants developed the plan together, with Adams supplying his own gun.

Adams's second point is that the murder and robbery sentences should not have been consecutive under the controlling case, State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). But the judge applied the Yarbough principles correctly, noting that the crimes were numerous and independent of each other, involved separate acts or threats of violence, and were committed against separate victims. Id. at 643-44. Although Adams also contends that the judge failed to consider the "'real-time consequences' of the mandatory periods of parole ineligibility," citing State v. Marinez, 370 N.J. Super. 49, 59 (App. Div.), certif. denied, 182 N.J. 142 (2004), there is nothing in the record supporting that contention. To the contrary, the imposition of presumptive sentences on the robbery counts indicates that the judge was well aware of the real-time consequences of the sentences imposed.

Adams's third point is that he is entitled to a remand under State v. Natale, 184 N.J. 458 (2005), but that case only applies when a sentence exceeds the presumptive sentence, which is not the case here.

Comer was sentenced as follows: on count three, felony murder, imprisonment for thirty years without parole; on counts seven, ten, and thirteen, all charging first degree robbery, imprisonment for fifteen years with 85% parole ineligibility under NERA, consecutive to count three and to each other. The remaining sentences were concurrent and are not at issue. As noted, his aggregate sentence was imprisonment for seventy-five years with sixty-eight years and three months of parole ineligibility.

Comer, like Adams, argues that the judge erred in failing to apply mitigating factor thirteen and in imposing consecutive sentences. For the reasons noted above as to Adams, we reject those arguments. Next, Comer argues that his sentence should be reduced because of the disparity between it and the sentences imposed on Harrison and Adams. As to Harrison, we note that he did not actually carry out the robberies, that he almost immediately accepted responsibility for his actions, and provided significant assistance to the police and the prosecutor. Since the disparity between Harrison's sentence and Comer's sentence resulted from the different procedural courses they followed rather than from an arbitrary action by the prosecutor or the court, the length of Harrison's sentence does not provide a basis for giving relief to Comer. State v. Baker, 270 N.J. Super. 55, 78 (App. Div.), aff'd, 138 N.J. 89 (1994). Of course, the disparity between Comer's sentence and Adams's sentence is relatively small. Moreover, he was found guilty on a count of first degree robbery on which Adams was found guilty of only second degree robbery. Therefore, the disparity in sentence was fully justified.

Affirmed.

 

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A-4915-03T4

December 28, 2006