STATE OF NEW JERSEY v. TIMOTHY STRICKLAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4522-04T44522-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY STRICKLAND,

Defendant-Appellant.

_______________________________________

 

Submitted October 1, 2007 - Decided:

Before Judges A. A. Rodr guez and Collester.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-10-1123 and 03-10-1127.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Oded Weinstock, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Indictment No. 03-10-1123

Following a jury trial, defendant, Timothy Strickland, was convicted of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. The State moved for imposition of an extended term. The judge granted the motion and imposed a seven-year term, with a three-and-one-half year parole disqualifier and payment of $550 restitution. We reverse, concluding that the judge's instruction to the jury to continue deliberations after the jury had announced a dead-lock, deprived defendant of a fair trial.

Prior to trial, while represented by Assistant Deputy Public Defender Louis Negron, defendant rejected the State's plea offer and decided to go to trial. The pretrial memorandum stipulated that any motion requesting a hearing on Wade, Miranda, and motion to suppress issues, could be made and heard immediately prior to trial. Defendant then retained Jack Venturi. He re-filed these motions with supporting briefs. However, the judge denied defendant's request for hearings on the pretrial motions based on the State's opposition because the briefs were filed late. The pretrial conference was held on March 23, 2004. The briefs were filed on August 16, 2004, and trial commenced on October 13, 2004. On that same day, the judge heard and granted the State's Sands motion.

The proofs can be summarized as follows. Maria Gouveia testified that on June 8, 2003, in Rahway, between 10:00 a.m. and 11:00 a.m., she was home alone. She heard someone turn her front doorknob. When she peered through her kitchen window, she saw a man wearing a dark blue sweatshirt, later identified as the defendant. She had never seen him before. Defendant left her property and she observed him walk across the street to several of her neighbors' homes. He then walked back to her home and proceeded to kick open her door. She screamed and defendant ran out of her house and fled into the passenger seat of a black vehicle, which sped off.

Moments later, a block-and-a-half from Gouveia's home, the car in which defendant was traveling missed a stop sign and was involved in a collision. The vehicle fled the scene, however, its license plate, license plate frame and the front blinker fell off the vehicle.

Soon thereafter, the police arrived at the scene. Gouveia reported her recent encounter with defendant. The police also spoke with Timothy Sidowski, Gouveia's neighbor.

At trial, Sidowski testified that on the same day, he saw someone who fit defendant's description walking around to different houses in the neighborhood. Sidowski did not identify defendant.

After the accident, the police determined that the plate belonged to a black Ford Thunderbird owned by defendant. The police went to defendant's home and located the Thunderbird a short distance from the house. Defendant's vehicle was missing a license plate. Gouveia and Sidowski both identified the car used in the crime.

Gale Muhammad and Tamika Jones testified for the defense. Muhammad was engaged to defendant's friend at the time of the incident. She testified that after the car accident, defendant called her to inform her that he had jewelry and money for her fiancé. He also asked if she could pick him up because his car was carjacked. She declined because she was running late to visit her fiancé in prison.

At the time of trial, Jones, defendant's live-in girlfriend, was imprisoned for a different offense. She came to court dressed in prison garb, handcuffs and shackles. Her shackles were removed when she testified. She testified that at approximately 11:00 a.m., defendant called her and told her that Muhammad was going to pass by for jewelry and money. He asked what the scene was like in front of the house. She informed him that there were police officers across the street. She could not recall much else regarding the occurrence. However, she did admit to making a statement to the police regarding same.

While Jones was in front of the house, Muhammad drove up to the house. Jones gave her the jewelry and money. Jones asked that they go pick up defendant from a bank, which they did. He told them he was carjacked. The police followed Muhammad from defendant's home to the bank. The vehicle was stopped by Police Officer Kostura and Sergeant Frank D'Errico.

D'Errico testified at trial that Kostura did the initial stop of the vehicle. Once defendant exited the vehicle, he voluntarily and spontaneously submitted to the officers that he had been "jacked." This was the first time defendant reported to the police that he had been carjacked.

In response to defendant's statement, D'Errico asked what he meant by being "jacked." According to D'Errico, defendant

elaborated by saying he was carjacked. He stated he was at the gas station on the corner of Whittier and West Grand when he was approached by a black male with a gun who told him get out of the car or I'll kill ya. He claims he turned his car over to that person.

D'Errico asked if he had left his keys in the vehicle when it was carjacked and defendant responded that he had.

The officers informed defendant that he fit the description of a burglary suspect. D'Errico looked into the vehicle and noticed a set of keys in the back seat where defendant had been seated. D'Errico seized the keys and determined that they did not operate Muhammad's vehicle. It was later determined that the keys belonged to defendant's vehicle, which had been the car used in the burglary attempt.

Rahway Detective William White testified to the following:

I went down to the cell block to ask Mr. Strickland if he'd like to speak to me about the incident. When I asked him this question, okay, do you want to talk to me about this, his answer to me was I don't know about any type of burglary. I was carjacked. My reply to him was you were carjacked. How could someone be carjacked if they have the car keys to their car in their possession? His reply was when I say I was carjacked I mean my car was stolen. My reply to him was again you have your car keys, your vehicle is recovered, [and] the ignition was intact. There was no damage to the ignition and the car keys that you have open and unlock the door locks from a remote.

Subsequently, Gouveia and Sidowski were taken to the scene where Muhammad's vehicle was stopped. Both made positive identifications of defendant. Defendant was arrested for attempted burglary. Gouveia made an in-court identification of defendant as the person that attempted to burglarize her home. Sidowski could not identify defendant in court.

The jury began its deliberations at 10:35 a.m. on Thursday, October 14, 2004. Within an hour, the jury requested a readback of Gouveia's testimony. After taking a lunch recess and requesting a written copy of Gouveia's cross-examination, the jury sent a note stating, "Cannot come to a unanimous decision." The judge responded to the note out of the presence of the jury by commenting, "That's what they think." Then he instructed the jury as follows:

My response to you is that three hours and 50 minutes do not a deliberation make. You got to understand the deliberative process. You got to understand that we don't just throw in the towel after that amount of deliberation. I got to be here tomorrow, I'm going nowhere on Saturday, the Giants are off on Sunday so we're just going to continue to work it out and here's what we do.

Deliberation process is a process like building something. Got a bunch of bricks over here and you want to build a foundation over here and what you do is you take one brick that everybody can agree on and you move it over to the foundation. Then you take another brick that everybody can agree on and you move it over to the foundation. And all along the process what you are doing is willing to try to convince other people as to what your views are and willing to be convinced about other people's views. It's a process that sometimes takes longer than other times, but it's a process that works that way. You build blocks until you finally come to a decision that gee, we've agreed on everything.

So the good news is if you're still deliberating at 6 o'clock tonight the County of Union will feed you. The bad news is the only restaurant open at 6 o'clock tonight is McDonald's. I got a load of work in there and that's what I'm going to be doing. I'd ask you to continue with your deliberations. Thank you.

Defense counsel did not object to the instruction, but asked for a mistrial because, "in light of the questions they had, the readback of the main person in this case, it just seems to me like this jury is not going to be able to come to a conclusion today."

The jury retired at 2:40 p.m. Twenty-three minutes later, the jury announced that it had reached a unanimous verdict.

On appeal, defendant contends:

THE TRIAL COURT'S ALLEN CHARGE VIOLATED OUR SUPREME COURT'S MODEL INSTRUCTION AS SET FORTH IN STATE V. CZACHOR (Partially Raised Below).

We agree.

The Supreme Court has held:

[C]oercion of a jury is not permissible in any degree under our constitutional system of judicial administration. The resolution of the facts is the exclusive province of the jury, and an invasion of the independence of that tribunal vitiates the verdict.

[In re Stern, 11 N.J. 584, 588 (1953).]

Then, in 1980, the Court held that the Allen charge was coercive and forced jurors to sacrifice their position in order to achieve a unanimous verdict. Czachor, supra, 82 N.J. at 394-402. As an alternative, the Court recommended the adoption of the ABA's model jury charge, which eliminated the coercive element. Id. at 405. That charge is now known as the Czachor charge.

From our review of the record, we conclude that the judge's comments were coercive. They suggested that the jury would be required to deliberate through the weekend if they did not reach a unanimous verdict. This coerced the holdout juror to surrender his or her honest view of defendant's guilt or innocence in order to appease the other jurors' annoyance at continuing deliberations. Therefore, on this basis alone, defendant is entitled to a vacation of the conviction and a new trial.

In addition, defendant challenges several other trial rulings. Some of these, by themselves, or in combination, warrant a new trial. We address these contentions in order to give guidance to the re-trial judge.

First, defendant is correct that "the trial court committed error when it refused to hear [his] pretrial motions" requesting hearings on Miranda, Wade and motion to suppress issues.

We are mindful that a trial court's denial of a pretrial hearing is considered a discretionary decision. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1971). Absent an abuse of discretion, we will not reverse a denial of a pretrial hearing. State v. Long, 119 N.J. 439, 487 (1990) (citing R. 3:13-1(b); see State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.) (pretrial hearing held at discretion of trial judge under totality of circumstances), certif. denied, 102 N.J. 335 (1985)). However, the three motions here that were denied by the judge without a hearing are of constitutional dimensions.

A Miranda hearing is necessary to determine the admissibility of a statement given by an accused while interrogated in a custodial status. Miranda, supra, 384 U.S. at 462, 86 S. Ct. at 1621, 16 L. Ed. 2d at 716-17. The right to the hearing is guaranteed by the Fifth Amendment to the United States Constitution, U.S. Const. amend. V, and "is deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Muhammad, 182 N.J. 551, 567 (2005). A Wade hearing is a preliminary inquiry to determine the admissibility of an identification. Wade, supra, 388 U.S. at 239-42, 87 S. Ct. at 1939-40, 18 L. Ed. 2d at 1164-66. It is based on a defendant's Sixth Amendment right to assistance of counsel. State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985). A motion to suppress evidence is the vehicle to insure that an accussed's right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution have been respected.

More than a slight timeliness objection is necessary to deny these motions summarily. In the interest of justice, the court should have heard the motions. This is particularly true where the late submission of the briefs did not cause a prejudice to the State. "What constitutes good cause for delay will depend upon the circumstances." State v. Del Fino, 100 N.J. 154, 160 (1985). In our view, it was an abuse of discretion to have denied these motions without a hearing.

Defendant also contends that he "was denied his right to a fair trial under the Sixth Amendment of the United States Constitution" because the judge should have held a R. 104(c) hearing before admitting the testimony by Detective White. We agree.

Defense counsel asked Detective White if he read defendant his rights before asking him questions. The judge refused to allow this line of questioning because, to him, it made no difference. This was error. When the State seeks to introduce an oral, unrecorded statement of defendant while in police custody, the best practice is to hold a R. 104(c) hearing on the admissibility of the statements. State v. Baldwin, 296 N.J. Super. 391, 397 (App. Div.), certif. denied, 149 N.J. 143 (1997). Voluntariness of a defendant's inculpatory statement must always be established at a R. 104(c) hearing before it is admitted. Biunnio, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 104 (2007).

Moreover, over defense counsel's objection, the judge allowed Detective White to testify about hearsay information he received in having defendant's license plate run. Defendant objected and the judge overruled his objection. This was error. State v. Lungsford, 167 N.J. Super. 296, 303-10 (App. Div. 1979). Therefore, at defendant's re-trial, there should be an N.J.R.E. 104(a) hearing prior to the admission of the statement.

Defendant also contends that he was denied a fair trial because he and Jones appeared before the jury in prison garb. In addition, Jones, a State witness, also appeared in prison garb and wore leg restraints. We agree.

A jury's knowledge that defendant is incarcerated pending trial has the capacity to deprive him of a fair trial. Indeed,

Our Federal and State Constitutions both guarantee defendant the right to a fair trial before an impartial jury and to a determination of guilt or innocence based solely on the evidence introduced at trial, "and not on grounds of . . . continued custody[] or other circumstances not adduced as proof at trial."

[State v. Russell, 384 N.J. Super. 586, 592 (App. Div. 2006) (quoting State v. Artwell, 177 N.J. 526, 533-34 (2003)).]

In Artwell, the Supreme Court extended to defense witnesses the traditional rule prohibiting criminal defendants from appearing in prison garb and with restraints, with some noted exceptions. Artwell, supra, 117 N.J. at 536-38. Finding that, absent unusual circumstances, no State interest is furthered by requiring an incarcerated witness to testify in prison clothing.

In Russell, we adopted the reasoning set forth in Washington v. Rodriguez, 45 P.3d 541 (Wash. 2002), and applied Artwell's holding regarding prison clothing and its discussion of defense witnesses. Russell, supra, 384 N.J. Super. at 599-600.

Refinement of the holding should be given the same application as the case that it refines. The holding in Artwell applies prospectively as of July 2, 2003. Therefore, the holding in Russell should also be applied prospectively as of July 2, 2003.

Defendant also contends that he was denied a fair trial because "the trial court's jury instructions were improper and so tainted the jury that the conviction must be reversed and remanded for a new trial." Specifically, defendant argues:

The Trial Court Failed To Issue Hampton And Kiocolek Charges Regarding The Statements Made By Defendant And Admitted Into Evidence At Trial (Partially Raised Below).

Failure To Give An Identification Instruction Was Fatal (Not Raised Below).

We agree with defendant that a Hampton/Kiocolek instruction was necessary in the circumstances presented. The failure to give such instruction was harmful error. State v. Jordan, 147 N.J. 409, 421-22 (1997).

Without doubt, defendant was entitled to an identification charge in this case. R. 2:10-2. This was the key issue in the case. Therefore, the identification charge had to be given even if defendant did not request it. State v. Cotto, 182 N.J. 316, 325 (2005). At a re-trial, this error should be corrected.

Defendant also contends that:

The Jury Charge Regarding The Standard Of Proof Did Not Meet Our Supreme Court's Requirements As Set Forth In State v. Medina, 147 N.J. 43 (1996) (Not Raised Below).

We do not address this contention. However, on re-trial, the judge would be well advised not to stray from the standard definition of "reasonable doubt" contained in the model jury charge.

Defendant also contends that:

The Trial Court Failed To Give The Necessary Limiting Instruction Related To Tamika Jones's Testimony and Gale Muhammad's Testimony (Not Raised Below).

We agree. Such limiting instruction was appropriate. However, the omission was not plain error. R. 2:10-2.

Given our conclusion that a reversal is warranted, we do not address the defendant's sentencing contentions alleging that the sentence was illegal; the extended term of imprisonment violated N.J.S.A. 2C:44-6(e); the custodial term was excessive; and the sentence must be remanded to comply with State V. Thomas, 188 N.J. 137 (2006).

Defendant also challenges the imposition of restitution without a hearing. We caution that after a re-trial, should defendant be convicted and the judge be inclined to impose restitution, a hearing is required. It is well settled that a person convicted of an offense may be sentenced to make restitution to the victim. N.J.S.A. 2C:43-2b(1). Restitution may be imposed in addition to a sentence of imprisonment. N.J.S.A. 2C:44-2b; see also State v. Zeliff, 236 N.J. Super. 166, 171 (App. Div. 1989) (discussing N.J.S.A. 2C:44-2b). There is no requirement of a showing that the offender derived a pecuniary gain from the crime. State v. Martinez, 392 N.J. Super. 307, 320 (App. Div. 2007); State v. Paone, 290 N.J. Super. 494, 496 (App. Div. 1996).

However, ordinarily there should be a hearing conducted to determine the defendant's ability to pay. State v. Newman, 132 N.J. 159, 169 (1993); Martinez, supra, 392 N.J. Super. at 321-22; State v. McLaughlin, 310 N.J. Super. 242, 263 (App. Div.), certif. denied, 156 N.J. 381 (1998); State v. Smith, 307 N.J. Super. 1, 15-16 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). A hearing is necessary when defendant is about to be incarcerated. See State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001). Restitution may be ordered even in the absence of the present means to pay because a court may take into account future income or assets as well as future earnings and potential expectations and prospects. State in the Interest of R.V., 280 N.J. Super. 118, 121-23 (App. Div. 1995). In the absence of a defendant's present ability to pay, the court should impose an appropriate amount of restitution, reduce it to a civil judgment, and make it subject to future enforcement. Id. at 123. A restitution award shall not be reduced by any amount the victim received from the Violent Crimes Compensation Board (VCCB). Rather, "the defendant [shall] pay any restitution ordered for a loss previously compensated by the Board to the VCCB." N.J.S.A. 2C:44-2c(2).

Indictment No. 03-10-1127

On a separate indictment, defendant entered a negotiated guilty plea to third-degree receiving stolen property, N.J.S.A. 2C:20-7a. The State agreed to have defendant sentenced as a fourth-degree offender and to recommend a "time served" sentence of 462 days. The State also agreed that the sentence would be concurrent to the sentence on Indictment No. 03-10-1123 and "any parole violation." The judge imposed a 462-day term (which defendant had already served) concurrent to the sentence on Indictment No. 03-10-1123, but the judgment is silent as to concurrency with respect to the period of parole violation. Therefore, the sentence is consecutive to the violation of parole. This is in violation of the plea agreement. State v. Barboza, 115 N.J. 415, 420-21 (1989). The judge should propose an amended judgment of conviction to correct this error.

In summary, the conviction on Indictment No. 03-10-1123 is reversed, the sentence is vacated and the matter remanded for a new trial. The sentence on Indictment No. 03-10-1127 is amended to reflect that it is concurrent to any period of parole violation that defendant was serving at the time of his sentence.

Affirmed in part and reversed and remanded in part.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Sands, 76 N.J. 127 (1978).

Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

State v. Czachor, 82 N.J. 392 (1980).

State v. Hampton, 61 N.J. 250 (1972).

State v. Kiocolek, 23 N.J. 400 (1957).

(continued)

(continued)

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A-4522-04T4

April 11, 2008