STATE OF NEW JERSEY v. MALIK R. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1539-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK R. SMITH,

Defendant-Appellant.

________________________________________________________________

 

Argued December 17, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-04-0824.

Rachel Kugel argued the cause for appellant (The Kugel Law Firm, attorneys; Ms. Kugel, on the brief).

James F. Smith, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor; Mr. Smith, of counsel and on the brief).

PER CURIAM

Defendant, Malik R. Smith, appeals from his May 17, 2006 conviction following a trial by jury on charges of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count seven); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count eight).

The record reveals that in the early morning hours of December 24, 2002, while Craig Packman, the bartender of the Maritime Tavern in Atlantic City, was speaking with a friend toward the rear of the building, two masked men burst into the bar. One of the two, later identified as defendant, pulled a gun from his pocket and waved it in the air while announcing, "this is a f---ing holdup. Put your f---ing money on the bar." Packman, armed with his own handgun, drew it. Seeing Packman's gun, defendant fired one or two shots at Packman who was able to return fire before collapsing. Packman died shortly thereafter. One of the shots fired by Packman struck defendant's accomplice, Gary Sayers, who died a few hours later. Trial testimony established that co-defendant Heleena Hendricks had entered the bar before defendant and Moore to find out how many people were inside.

Approximately seven hours after Packman's murder, police knocked on the apartment door of Ivy Moore, defendant's girlfriend. She awoke defendant, who told her not to open the door. After first trying to hide his gun inside a television, defendant disassembled the weapon, putting one part into a tub of butter in Moore's refrigerator and a second part into a box of hamburgers in the freezer. Defendant and Moore managed to slip away from police by sliding through an opening in a closet floor that led to "open passageways" located beneath several adjacent houses. Prior to trial, Moore entered a negotiated plea of guilty to second-degree conspiracy to commit robbery in which she agreed to testify on behalf of the State at trial.

Following defendant's conviction, and after all appropriate mergers, defendant was sentenced to a sixty-year term of imprisonment on count four, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. On counts seven and eight, the judge imposed, respectively, consecutive terms of five years and eighteen-months of imprisonment, consecutive to the sentence on count four. The aggregate sentence was sixty-six and one-half years of imprisonment. Appropriate fines and penalties were imposed.

Defendant appealed, raising the following issues:

I. THE TRIAL JUDGE FAILED TO TAKE INTO CONSIDERATION THE REAL TIME CONSEQUENCES OF THE NO EARLY RELEASE ACT

II. THIS MATTER SHOULD BE REMANDED FOR RECONSIDERATION AND RESENTENCING BECAUSE THE TRIAL JUDGE ASSUMED AGGRAVATING FACTORS THAT WERE NOT SUPPORTED BY THE RECORD

III. THE COURT RUSHED THE JURY TO RENDER A VERDICT AND THE POSSIBILITY OF WEEKEND DELIBERATIONS WAS COERSIVE THEREFORE DEFENDANT SHOULD BE GRANTED A NEW TRIAL.

We reject defendant's claim that the judge's non-committal response to a juror's inquiry about the possibility of weekend deliberations "coerced" a guilty verdict. We likewise reject defendant's contention that the sentence imposed resulted from aggravating factors that are not supported by the record. We affirm defendant's conviction and sentence.

I.

Defendant confines his appeal from the conviction to a single claim, which pertains only to the judge's response to the possibility of the jury being required to deliberate over the weekend, which is set forth in Point III.

After eight days of testimony, the jury began deliberating at 9:00 a.m. on Wednesday, February 22, 2006. Shortly before 4:30 p.m., the jury sent a note to the judge that read, "for now we are hopelessly deadlocked." The words "for now" were crossed out. Upon receiving the note, the judge proposed to give the jury the instruction approved by the Court in State v. Czachor, 82 N.J. 392, 405-06 n.1 (1980). At the request of defendant, the judge also instructed the jury that in light of the "number of defendants, the number and nature, and the seriousness of the charges, against each defendant, it is not possible for [the court] to conclude that this jury has exhausted all possibility of reaching verdicts that these charges present." The judge then gave the proposed instruction, and defendant interposed no objection.

The next day, February 23, was a Thursday. At 4:30 p.m., the jurors sent a note to the judge stating they were "finally making progress" and asking to retire for the weekend. The judge excused the jury for the day, but instructed them to return the next morning. Upon hearing that instruction, juror number fifteen spontaneously asked the judge whether the jurors would be required to deliberate over the weekend if they were unable to reach a verdict by the end of the next day, which was a Friday. The judge responded, "we will address that late tomorrow afternoon." Defense counsel, other than commenting that he had "a zillion appointments" over the weekend, did not make any objection to the judge's response to the juror's inquiry about the possibility of deliberating over the weekend. There was no further discussion of that subject by the judge or jury. In the early afternoon of the next day, Friday, February 24, the jury returned its verdict, convicting defendant and acquitting Hendricks.

In light of these events, defendant argues "the court rushed the jury to render a verdict and the possibility of weekend deliberations was coer[c]ive[.] Therefore, defendant should be granted a new trial." Defendant relies on State v. Figueroa, 190 N.J. 219, 240-42 (2007), in support of his contention that the judge's non-committal remark concerning the possibility of weekend deliberations caused the jury to return a guilty verdict on Friday afternoon that it would not have otherwise rendered. Because defendant did not object to the judge's response to the juror's inquiry, we review this claim under the plain error standard. We will not reverse unless any such error was "clearly capable of producing an unjust result." R. 2:10-2.

We agree with the State's argument that Figueroa is distinguishable for two reasons. First, in Figueroa, the trial judge failed to remind the jurors that they should not "surrender their honest convictions" merely to return a verdict. 190 N.J. at 227. Second, in Figueroa, the judge actually informed the jurors that they would be required to deliberate over the weekend if they did not return a verdict before then. Ibid.

Moreover, after the inquiry from juror number fifteen on Thursday afternoon, the jury never communicated any further with the judge about weekend deliberations. To conclude on this record that the jury returned a guilty verdict for fear of being required to deliberate over the weekend would be to engage in unwarranted speculation. We decline to do so.

II.

The remaining issues raised by defendant relate to the sentence that was imposed.

Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

In Point I, defendant argues that "[t]he trial judge failed to take into consideration the real-time consequences of the No Early Release Act." As is evident from the record, the judge was well aware of the real-time consequences of the sentence he imposed on the felony murder count. In particular, the judge observed that defendant would be required to serve fifty-one years before becoming eligible for parole. During appellate oral argument, defense counsel clarified the claim raised in Point I as follows: the judge imposed an excessive sentence on the felony murder count because defendant will be seventy-four years old at the time he becomes eligible for parole. We will consider that argument in conjunction with our analysis of Point II, in which defendant maintains that he is entitled to a remand for reconsideration of his sentence because the trial judge assumed aggravating factors that were not supported by the record.

III.

In Point II, defendant identifies three portions of the judge's comments during the sentencing proceeding, arguing that the judge treated each of the three as the equivalent of an aggravating factor. Defendant argues that the judge's findings are not supported by the record. The first such instance, according to defendant, occurred when the judge commented that defendant knew where the gun used to shoot Packman was located but refused to reveal that location to police. The judge stated:

[T]he tampering with the weapon, which we don't know where it is. As far as we know, it's out there somewhere and it's this court's strong sense that [defendant] or someone he knows, knows where it is.

. . . .

[W]ith law enforcement virtually at the door of Ivy Moore's apartment, wherein [defendant] was hiding, he disassembled the semi-automatic handgun and hid it in a hamburger box. To this day, the weapon remains at large in society. Where is it? And who knows where it is? Only [defendant] most likely knows and he remains silent. That's troubling. Indeed, he refused to share the identity of his "good friend, Raheem," who gave him the gun, when questioned [during cross-examination] at trial. Stated otherwise, from his own testimony, he continues to protect and defend the notion and the reality of unlawful ownership of unregistered guns, by unlicensed people, . . . [as] a form of vigilantism, taking the law into your own hands, protecting one's self in the neighborhood. Unsettling.

The judge later commented that he might have been inclined to impose less than the maximum sentence on count eight, had defendant revealed the whereabouts of the firearm.

Second, defendant contends that "without foundation or supporting evidence in the record, the [judge] strongly implied that [defendant] was committing robberies or other crimes to support himself because he was unemployed for four years prior to the incident in question." Defendant points to the judge's observation that:

[Defendant] has been unemployed for four years, well predating the date of these offenses. Unemployed for four years. [He] supported himself somehow . . . . He had a gun. . . . [T]he court is left wondering what this young man was doing, in an economic sense, prior to the date of this offense and whether it was lawful. The record does not competently answer, so the court is left only wondering.

Third, defendant argues the judge made "additional inappropriate and emotionally charged commentary that has no place in what is supposed to be a solemn and controlled process." He points to the judge's comment during sentencing that:

In the end, these offenses constitute, in this court's view, yet another tragic instance wherein the intellectually unimpaired, the emotionally undisturbed, the educationally uninterested, the vocationally unmotivated, the institutionally unresponsive and un-responsible [sic] specifically as relates to attempts to rehabilitate this individual as a juvenile, the legally un-compliant, the financially un-legitimate, by that I mean money for weapons, alcohol, survival, no work, and mostly generally, culturally unconnected, band together with other[s] similarly inclined, in unjustified furtherance of mob-like violence toward others . . . shredding not just societal peace, but human flesh as well.

Defendant argues that in the aggregate, these comments had the potential to result in an unfair sentence. He acknowledges that the record does not reveal how much weight the judge afforded these "unfounded aggravating factors," but urges us to remand this matter for reconsideration and re-sentencing with instructions that such factors be disregarded.

In addition to the comments we have quoted, the judge provided a comprehensive review of his reasons for concluding that the following aggravating factors apply: aggravating factor three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of defendant's prior record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9).

We turn to a review of defendant's claim that his sentence was excessive. A defendant found guilty of felony murder must be sentenced to anywhere from thirty years to life imprisonment. N.J.S.A. 2C:11-3(b)(1). The judge is required to impose a parole ineligibility term of eighty-five per cent of the sentence imposed. N.J.S.A. 2C:43-7.2(a) and (d)(1). Here, the judge imposed a sixty-year term, with eighty-five per cent to be served without parole eligibility.

We begin by reviewing the aggravating factors the judge found. As to aggravating factor three, the record supports the judge's conclusion of the strong risk that defendant will commit another crime. As the judge observed, at the time of sentencing, defendant was only twenty-three years old, yet he had prior adult convictions for possession of a weapon for an unlawful purpose and conspiracy to distribute a controlled dangerous substance. Defendant's juvenile record consists of seventeen separate adjudications of delinquency and eleven convictions for violation of probation. Unquestionably, the record supports the judge's conclusion that defendant's prior convictions and adjudications of delinquency created a strong risk of repeat offenses, thereby satisfying aggravating factor three. Those same convictions also amply justify the judge's conclusion that aggravating factor six, the extent of defendant's prior record and seriousness of convicted offenses, was satisfied.

As to aggravating factor nine, the need for deterrence, we agree with the judge's conclusion that the senseless murder of a bartender during a robbery requires strong general deterrence. We likewise agree with the judge's conclusion that this particular defendant, whose eleven adjudications for violation of probation demonstrate an unwillingness or a refusal to conform to court orders and society's rules, is in need of strong individual deterrence. Under those circumstances, the finding of aggravating factor nine was well-justified.

Defendant does not argue on appeal that the judge failed to find mitigating factors that were supported by the record. At sentencing, he argued that mitigating factor four applied, i.e. "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). Specifically, defendant argued he was raised in a rough neighborhood by a single mother who had six other children. The judge rejected mitigating factor four, finding that although such circumstances might have had some slight impact on defendant's record as a juvenile, they have no bearing on the commission of the present offense, which was committed when defendant was twenty years old. Defendant does not argue on appeal any error pertaining to the judge's rejection of mitigating factor four. An issue not briefed is deemed waived. Sciarrotto v. Global Spectrum, 392 N.J. Super. 403, 405 (App. Div. 2007), rev'd on other grounds, 194 N.J. 345 (2008). Consequently, we do not address that issue.

Applying the standard adopted by the Court in Roth, we are satisfied that the sentence imposed should not be disturbed. The aggravating factors found by the judge are fully supported by the record, and appropriate weight was given to each. We do not regard the judge's offhand comment--that he might possibly have imposed less than the maximum sentence on count four had defendant revealed the whereabouts of the gun--as part of the judge's sentencing rationale. The sentence does not "shock the judicial conscience." Roth, supra, 95 N.J. at 364-65.

While some of the judge's remarks were, as defendant argues, ill-advised, unnecessary and not expressly related to the statutory aggravating factors, we reject defendant's suggestion that these comments had a bearing on the actual sentence the judge imposed. Nonetheless, these gratuitous comments had no place in a sentencing proceeding. "Pronouncement of judgment of sentence is among the most solemn and serious responsibilities of a trial court." Id. at 365. The three comments we have quoted detracted from the solemnity of the proceedings.

Affirmed.

 

The jury returned a verdict of not guilty on conspiracy to commit robbery (count one).

Life imprisonment is deemed to be seventy-five years. N.J.S.A. 2C:43-7.2(b).

The judge referred to arrests. We have confined our review to actual adjudications of delinquency.

(continued)

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A-1539-06T4

January 9, 2009