STATE OF NEW JERSEY v. RICKY L. MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6080-05T46080-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY L. MILLER,

Defendant-Appellant.

________________________________________________

 

Submitted January 14, 2008 - Decided

Before Judges Collester, C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 05-03-0076.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Thomas S. Ferguson, Warren County Pros-ecutor, attorney for respondent (Tara J. Kirkendall, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was charged with having committed the following offenses regarding the allegation that he robbed a liquor store in Knowlton Township and assaulted the store's clerk, Rajeshbai Patel, on November 22, 2004: first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).

Defendant sought to represent himself at trial. Following a hearing, the trial judge found that defendant knowingly and voluntarily waived his right to counsel and that he could proceed pro se; the judge, however, also appointed standby counsel.

The trial occurred over the course of six days. Evidence that the jury was entitled to credit revealed that at approximately 8:00 a.m. on November 22, 2004, Patel was working alone at his cousin's liquor store in Knowlton when defendant entered and walked to a beer cooler. No one else was then in the store. Although Patel did not then know defendant's name, he recognized defendant from his appearance in the store four or five times within the prior two weeks, and on another occasion approximately two months earlier.

Defendant removed a malt liquor from the cooler and placed it on the counter in front of Patel. He then walked to the deli counter and asked Patel to get him a quarter pound of potato salad. Patel advised defendant that the total cost was about four dollars. Defendant said he did not have enough money; Patel responded that defendant could pay what he had and bring the balance the next time. When Patel returned from the deli counter with the potato salad, defendant reached out and cut Patel on the left side of his face with a box cutter. Defendant then placed the box cutter against Patel's neck and made a "slight cut" there as well.

While continuing to hold the box cutter against Patel's neck, defendant pulled him toward the cash register and demanded its contents. Patel complied and defendant next demanded all the money in the nearby lottery-game register. Again Patel followed defendant's instruction. Patel later testified that he was "scared" and felt "the pain there on my neck" where defendant held the box cutter. He also testified that $820 was stolen from the liquor store.

After obtaining the cash from both registers, defendant released Patel and told him not to try to follow him as he "rushed through the door." Patel did not attempt to follow, but instead tried to stop the flow of blood "oozing" from his face and neck.

Soon thereafter, a customer approached the store and saw inside that Patel was bleeding. The customer approached a state trooper who was conducting radar speed surveillance on the highway about 200 to 300 yards away. The trooper notified his dispatcher and went to the store, where he found Patel holding a towel over cuts on his face and neck. Later, Patel gave a description of his assailant, telling the police that the man had a scar or some abnormality involving his nose. Following this, Patel was transported to a hospital, where the cut on his face was closed with sixteen stitches and the cut on his neck was closed with four stitches. He was released from the hospital the same day.

Detective Howard Brown of the State Police led the ensuing investigation. He contacted the Pennsylvania State Police (PSP) concerning a report that a suspect may have crossed a nearby bridge into Pennsylvania. This lead proved insubstantial, but the PSP advised Detective Brown that similar crimes had been committed in Pennsylvania during the previous three days by a man with a "cut scar" on his face, who was armed with a box cutter and driving a Volvo. The PSP sent Detective Brown a composite depiction of the suspect in the Pennsylvania crimes, which Brown later showed to Patel. Patel noticed similarities but indicated that the scar on his assailant's nose and face was different.

The next day, November 23, 2004, the PSP received an informant's tip which indicated that defendant was the person who committed the Pennsylvania robberies. The PSP prepared a six-man photographic array that included defendant's photograph. The State Police also learned that at least one of the Pennsylvania crime victims positively identified defendant as the culprit. In addition, the PSP gathered information that indicated defendant had used his father's Volvo during the robberies. This information was relayed to Detective Brown.

Later that same day, Detective Brown had another trooper show the six-man photographic array to Patel, who immediately selected defendant's photograph as depicting the robber of the liquor store. At trial, Patel positively identified defendant as the man who assaulted him and robbed the liquor store.

With Patel's positive identification, the police began searching for defendant and the Volvo he was believed to be using. The State Police learned that defendant was employed by a tree-trimming company in the Rockaway area and may have been staying in the Mountainside Inn in Rockaway. They determined at the Mountainside Inn that defendant had a room there but had not been present for a week.

On November 24, 2004, a police officer in Washington Township observed defendant "fall[] off a lumber truck" and then "jump on another moving vehicle." When defendant failed to comply with the officer's directions, he was arrested for disorderly conduct.

The arresting officer testified that defendant smelled of alcohol and was "hard to understand . . . because he was rambling." The Washington Township police subsequently learned that there were "active warrants" outstanding for defendant's arrest. That same day, the Washington Township police contacted Detective Brown to advise they had arrested defendant. Brown was also advised that defendant had been in the vicinity of the Broadway Motel on Route 57 when he boarded the lumber truck from which he fell prior to his arrest.

Armed with this information, Detective Brown and other investigators went to the Broadway Motel where they found a Volvo, which matched the description and had the same license plate number as the Volvo that defendant was reported to be operating in the area. Detective Brown then checked with the motel staff and learned that a man fitting defendant's physical description had rented a room there in the name of defendant's father. Brown then was led by a motel staff member to this rented room, which they found "in disarray [as if] a possible fight had gone on in the room." The officers did a quick sweep to make sure no injured person was present in the room. Detective Brown directed another officer to guard the room so that it would not be disturbed pending issuance of a search warrant. The officers also looked through the windows of the Volvo, and observed that it was filled with clothes. Brown ordered that the vehicle be impounded and taken to a State Police compound where it could be safeguarded pending the issuance of a search warrant. He took this action because he "didn't know if anybody else had the key to the vehicle" and was concerned that someone could come and drive it away or tamper with or remove its contents.

A superior court judge later issued a search warrant for the Volvo. The ensuing search uncovered a utility knife with red stains on its blade and handle that tested positive for human blood. At trial, the State presented expert testimony drawn from DNA analysis, which revealed that the blood that stained the box cutter's blade and handle came from Patel.

At the trial's conclusion, defendant was found guilty as charged in the indictment. He was sentenced to: a twenty-year prison term, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the first-degree robbery conviction; a ten-year prison term, also subject to an 85% period of parole ineligibility, on the second-degree aggravated assault conviction; and a five-year prison term on the third-degree possession of a weapon for an unlawful purpose conviction. The third-degree aggravated assault conviction merged with the other aggravated assault conviction; and the fourth-degree unlawful possession of a weapon conviction merged with the third-degree possession of a weapon for an unlawful purpose conviction. All the prison terms were ordered to be served concurrently.

Defendant appealed, raising the following arguments for our consideration:

I. THE ADMISSION OF EVIDENCE THAT DEFENDANT WAS ARRESTED ON NOVEMBER 24, 2004, FOR AN OFFENSE CLEARLY UNRELATED TO THE WITHIN OFFENSES, DENIED DEFENDANT A FAIR TRIAL.

II. THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY VOUCHING FOR THE CREDIBILITY OF THE VICTIM'S EYEWITNESS IDENTIFICATION (Not Raised Below).

III. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DECLARE A MISTRIAL AFTER TWO JURORS WERE, DURING THE COURSE OF THE TRIAL, DISCUSSING THE EFFICACY OF DEFENDANT'S CROSS EXAMINATION; AT THE VERY LEAST, THE TRIAL COURT SHOULD HAVE APPROP-RIATELY INSTRUCTED THE JURY.

IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE AUTOMOBILE AND MOTEL ROOM BECAUSE THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT DID NOT ESTABLISH PROBABLE CAUSE TO BELIEVE THAT CONTRABAND WOULD BE FOUND AT THOSE LOCATIONS.

V. THE IMPOSITION OF THE MAXIMUM TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY WAS NOT SUPPORTED BY A QUALITATIVE ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS.

VI. DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD MERGE INTO THE ROBBERY CONVICTION (Not Raised Below).

In a pro se brief, defendant also raised the following arguments, which we have renumbered:

VII. THE STATE VIOLATED DEFENDANT[']S STATE AND FEDERAL SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND FOURTEENTH AMENDMENT [RIGHT] TO DUE PROCESS.

VIII. THE WARRANTLESS SEARCH OF THE 1986 VOLVO WAS UNREASONABLE; DUE TO LACK OF EXIGENT CIRCUMSTANCES TO VALIDATE [THE] AUTOMOBILE EXCEPTION RULE.

IX. THE VICTIM WAS SHOWN [AN] UNDULY SUBJECTIVE PHOTOGRAPH; TAINTING THE IDNETIFICATION PROCEDURE.

He also included in the pro se brief an argument to supplement Point I.

After careful examination, we find insufficient merit in the arguments contained in Points III, IV, V, VII, VIII and IX to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also find no merit in Points I and II for the reasons expressed hereinafter. We do, however, find the merger argument contained in defendant's Point VI to be well taken and remand for an amendment of the judgment of conviction.

I

Defendant contends he was prejudiced by testimony that revealed he was arrested in Washington Township on a disorderly conduct charge, claiming that the circumstances did not render this information admissible pursuant to N.J.R.E. 404(b).

The record indicates that defendant raised his concern about other-crimes evidence and the State had stipulated prior to trial that it would not offer other-crimes evidence pursuant to N.J.R.E. 404(b). As a result, when defendant reiterated this concern during the course of trial, the prosecutor stated that he would speak to Detective Brown and other police witnesses prior to their testimony to ensure that nothing prejudicial would be put before the jury.

On the next day of trial, Detective Thomas Leahy of the State Police testified. Unfortunately, the prosecutor did not caution Leahy before he took the witness stand about not revealing the fact of defendant's arrest in Washington Township. Leahy testified during direct examination that the police had learned that defendant had a room at the Mountainside Inn in Rockaway. When asked whether the police found defendant at that motel, Leahy responded in the negative but added that "[w]e got a call earlier that morning . . . that [defendant] was arrested by Washington Township [police]." Defendant immediately objected, claiming this testimony improperly injected other-crimes evidence into the case. When the trial judge indicated that he would "cover it with an instruction," defendant persisted that the testimony mandated a mistrial. The judge denied that request and gave the following cautionary instruction to the jury:

Evidence of other offenses can never be considered by a jury as indicating a propensity of somebody to commit offenses. The fact that you may have heard a witness say that [defendant] had been arrested really doesn't mean anything. You and I can be arrested for any number of things and may or may not be charged with anything, but you are arrested. That may not be used by you, the fact that you heard that word, which I'm going to instruct you to disregard, probably wasn't the proper word for the officer to say, but that's the way policemen express things. And it's not relevant to this case, it has nothing to do with the alleged robbery that occurred two days prior to that. It just has to be disregarded by you.

The judge also indicated to counsel after excusing the jury for lunch that he remained of the belief that the jury had to be given some explanation of why the police went to the Broadway Motel, and he assured defendant that the explanation would be given in a manner that would not be "unreasonably prejudicial."

The next day, Detective Brown testified. Unfortunately, despite the prosecutor's representation that he had previously advised Brown not to mention, among other things, the Washington Township arrest, the following occurred during his direct examination:

Q. . . . What did you do next?

A. . . . After obtaining the warrant, . . . we just had no idea where [defendant] was. So we were looking for locations of information that we had and I was one of the ones that actually went to the Mountain[side] Inn . . . because that was the information that we had that he was there.

Q. And there was no Mr. Miller, correct?

A. He wasn't physically there, but he had a room rented there and [motel personnel] were familiar with him.

. . . .

Q. Okay. After not seeing Mr. Miller there what, if anything did you do?

A. Um, that was it for that day. The next day we were notified that he had been arrested by Washington Borough police.

[Emphasis added.]

Defendant immediately objected, and the trial judge again instructed the jury that "we have been over that ground before." He nevertheless reminded the jury that

[t]he fact that somebody gets arrested, it can happen to us, [it] doesn't mean we are guilty of anything, the police had some contact. I'll sustain that objection. Disregard that answer.

Again, at a sidebar, defendant unsuccessfully requested a mistrial.

We are chagrined about the State's failure to abide by its stipulation to avoid presenting other-crimes evidence and the insistence of its witnesses to utter the very thing that defendant sought to preclude and the prosecutor vowed to prevent. Notwithstanding the unfortunate blurting out of this potentially prejudicial information, we find no abuse of discretion in the judge's handling of the matter and we find no reason to second-guess the judge's discretionary denial of defendant's requests for a mistrial. State v. Harvey, 151 N.J. 117, 205 (1997). The question whether a mistrial should be ordered generally turns on whether the potential prejudice may be eradicated through cautionary instructions. State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). The inappropriate comments, which the prosecutor did not attempt to elicit from either witness, were brief, and the judge forcefully instructed the jury to disregard them.

We also find no prejudice to defendant because soon after the evidence was blurted out and the jury was instructed by the judge, defendant reopened the door by asking Detective Brown during his cross-examination whether he knew "what time [defendant] was arrested." Brown replied that he did not know because he was not present and reiterated that Washington Township police had arrested defendant. Defendant asked the same question again, to which the trial judge ruled that the question "ha[d] been asked and answered," in an apparent attempt to foreclose any further inquiry by defendant into the very area as to which he had previously objected. Notwithstanding that effort, defendant then referred Detective Brown to his investigative report and again asked if he knew what time defendant had been arrested in Washington Township. Brown responded that "[w]e reported an incident occurred at Washington [Township at] approximately 7:02 a.m." Later, during additional testimony regarding certain photographs, the prosecutor responded that photographs revealing defendant's "condition when he was arrested in Washington" were provided in discovery.

After the jury was excused for the day, defendant again moved for a mistrial in light of the prosecutor's reference, during the discussion about photographs, to defendant's arrest in Washington Township. The prosecutor argued that the reference was inconsequential in light of the fact that defendant repeatedly elicited testimony about his arrest from Detective Brown. The trial judge indicated that an explanation regarding the Washington Township arrest might be necessary in light of the fact that both parties had commented upon it.

The next day, the trial judge revisited the issue, pointing out to defendant that "[t]he jury now knows that you were arrested" and asking defendant what he wanted the court to do about it. Defendant first asked for a curative instruction but then moved for a mistrial. The judge denied the motion for a mistrial but indicated he would give another curative instruction over defendant's objection that this would only "reinforce" the prejudice. The judge then instructed the jury that:

I've talked about [defendant's] arrest on two occasions. I'm going to talk about it one more time. After his arrest for the first degree armed robbery or between that arrest and the commission of the alleged crime, [defendant] was arrested for a disorderly persons offense in Washington [Township]. That's a minor offense, that's like a traffic offense. . . .

The fact that he was arrested is irrelevant. You may not consider that in any way in dealing with the offense of the alleged armed robbery. Just disregard that. It happened. I want to tell you what it was. It was not a serious offense. It was a disorderly persons offense. It has nothing to do with this case and you are not to consider that for any fashion.

Defendant again objected, arguing that this instruction "attract[ed] more attention to the arrest" and again requested a mistrial. The judge rejected this, correctly observing that this information came up during defendant's examination of Detective Brown and that the arrest had ceased to be a "secret." As a result, the judge concluded, and we agree, that "it [was] best to clarify" the situation and he did so by advising the jury of its innocuousness and by forcefully directing the jury not to consider that information for any reason.

We assume for present purposes that the testimony regarding the Washington Township disorderly conduct arrest constituted other-crimes evidence rendered inadmissible by N.J.R.E. 404(b) and that Detectives Leahy and Brown improperly blurted out this information during direct examination. Whether those comments warranted the granting of a mistrial was a matter that rested in the sound discretion of the trial court, Harvey, supra, 151 N.J. at 205; Witte, supra, 13 N.J. at 611, and we are satisfied that the judge did not abuse his discretion in this regard. Instead, the judge quite appropriately and effectively sustained defendant's objections in front of the jury and gave the jury strong cautionary instructions.

That would have been a satisfactory end to the matter but for defendant's insistence upon reopening that door on a number of occasions during his own cross-examination of Detective Brown. Once defendant so persisted, the judge quite correctly concluded that it was no longer sufficient to simply instruct the jury to disregard this testimony but that he should instead explain to the jury what occurred and why it should play no role in the jury's ultimate determination of the issues. We conclude that defendant's own invitation to Detective Brown to testify about the Washington Township arrest suggested that defendant did not deem this information to be prejudicial and, as a consequence, we reject defendant's arguments to the contrary.

II

Defendant also argues that his right to a fair trial was violated when the prosecutor vouched for the truthfulness of the State's witnesses during his summation.

It is true, as the State argues, that "[p]rosecutors are afforded considerable leeway in closing arguments [so] long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). However, it is improper for a prosecutor to express a "professional belief or opinion as to the truth or falsity of any testimony." State v. Marshall, 123 N.J. 1, 154 (1991) (citations omitted); see also State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div.), certif. granted, 192 N.J. 481 (2007); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993).

Here, the prosecutor discussed in his summation the testimony of Patel and Lieutenant Brian Graupe about Patel's identification of defendant from the photographic array. He rhetorically asked whether it was conceivable that Graupe acted improperly with regard to the identification process, which was fair comment, but then exceeded proper bounds by answering his rhetorical question with "I would sincerely doubt it," and by affirmatively stating that the testimony of Patel and Graupe was "similar and it was consistent because it was both the truth" (emphasis added).

This vouching was not an isolated incident. The prosecutor later argued in his summation that nothing "came out" during the cross-examination of Patel "as a lie" because "[n]othing was," and that Patel was "calm and [told] you what happened" during cross-examination, as he faced defendant, and "nobody was telling a lie because he didn't lie." The prosecutor also argued to the jury on two occasions that Patel had made a "perfect ID" of defendant.

Again, a prosecutor may forcefully argue that a witness is credible so long as "the prosecutor does not personally vouch for the witness." Bradshaw, supra, 392 N.J. Super. at 437 (citing State v. Walder, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004)). This means that the prosecutor may argue that the evidence should persuade the jury that a witness was telling the truth, but the prosecutor may not provide a personal belief that the witness testified truthfully. Marshall, supra, 123 N.J. at 154. We agree with defendant that the prosecutor crossed this fine line of advocacy.

However, defendant did not object to these comments during the trial and has made these arguments for the first time in this appeal. As a result he was required to convince us that these erroneous comments were clearly capable of producing an unjust result. R. 2:10-2. After carefully considering defendant's arguments in light of the overwhelming evidence of his guilt and in light of the prosecutor's entire summation, as well as the jury instructions given by the judge after this summation, which indicated that counsel's statements do not constitute evidence, we are not convinced that the prosecutor's improper vouching was capable of producing an unjust result.

III

The merger argument posed by defendant in Point VI need not long detain us. Defendant contends that his conviction for third-degree possession of a weapon for an unlawful purpose should have merged for sentencing purposes with his conviction for first-degree robbery. We agree with that argument, which is fully supported by State v. Diaz, 144 N.J. 628, 636 (1996). In addition, the State concedes that the convictions should have merged at the time of sentencing. We remand for the amendment of the judgment of conviction to reflect this merger.

With the exception of our remand for an amendment of the judgment, we affirm. We do not retain jurisdiction.

 
 

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A-6080-05T4

 

February 5, 2008