STATE OF NEW JERSEY v. DAVID MACKOON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4227-06T44227-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DAVID MACKOON a/k/a MIKE MACKOON

a/k/a MICHAEL MACKOON,

Defendant-Appellant.

__________________________________

 

Submitted: October 16, 2008 - Decided:

Before Judges Cuff, Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1276.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant David Mackoon was found guilty of three counts of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Counts One, Seven and Sixteen); first degree robbery, N.J.S.A. 2C:15-1 (Count Seventeen); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count Eighteen); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Nineteen); and second degree tampering with a witness, N.J.S.A. 2C:28-5 (Count Twenty-one). On Count One, defendant was sentenced to a ten-year term of imprisonment subject to a NERA 85% parole ineligibility term. A similar term was imposed on Count Seven. After merging Counts Sixteen and Nineteen with Count Seventeen, the judge imposed a discretionary extended (persistent offender) thirty-year term of imprisonment subject to a NERA parole ineligibility term. On Count Eighteen, the judge imposed a discretionary extended term of five years with a two-year period of parole ineligibility; and on Count Twenty-one, defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility. All terms are to run concurrently. The aggregate term is thirty years with 85% parole ineligibility. The appropriate fines, penalties and assessments were imposed.

The charges against defendant arise from robberies of three jewelry stores in Bloomfield, East Orange and Orange between July 3, 2002 and October 29, 2003. The following evidence regarding each episode was produced at trial.

At 2:00 p.m. on July 3, 2002, three masked and armed men "stormed" into Goldenland Jewelry (Goldenland), located at 23 Broad Street, Bloomfield. One man ran toward Tony Istebryan, Goldenland's owner, the owner's father, and a female employee. This man held them at gunpoint in the corner of the store, saying "don't move." A second man, who stood behind the first, also pointed a handgun at Istebryan, his father, and the employee and stated "don't move." The third man smashed display cases and filled a large black garbage bag with jewelry.

The three men were not in Goldenland very long. The owner estimated the three men were in the store no more than forty-eight seconds. Nevertheless, they took an estimated $30,000 worth of jewelry from the store. Before running out of the store, the first man struck Istebryan in the right temple with the butt of a handgun. The three attackers ran out of the store and drove away in a Jaguar which had been double-parked on Broad Street.

Istebryan summoned the police, who arrived two minutes later. He described the three attackers and the get-away driver as black males. The incident was recorded on the store's surveillance camera.

The next incident occurred several months later. At approximately 10:30 a.m. on December 18, 2002, several men entered All Page Jewelry (All Page), located at 615 Central Avenue, East Orange. Mikail Alaskaykali and his co-worker, Bashar Korbeh, were in the back office of the store when they saw the door open on the store's closed-circuit television. Korbeh walked toward the front of the store. Alaskaykali followed him. Before reaching the front of the store, Alaskaykali saw Korbeh raise his hands and heard him say "okay, okay." Korbeh then told Alaskaykali to get down on the floor. Alaskaykali saw an armed and masked man, described by Alaskaykali as light skinned and between 5'4" and 5'5" tall. The armed man held Alaskaykali at gunpoint and told him to lay down on the floor. Alaskaykali then heard breaking glass in the front of the store and the armed man speaking to others in the front of the store.

Alaskaykali did not recall how long the attackers were in the store. After the attackers ran out of the store, Alaskaykali and Korbeh collected jewelry dropped by the fleeing gunmen, called All Page's owner, and summoned the police. Alaskaykali estimated the gunmen took jewelry worth $20,000. The incident was recorded by a surveillance camera.

The next incident occurred ten months later. At 11:00 a.m. on October 29, 2003, three masked men entered Hot Stop jewelry store, located at 309 Main Street, Orange. Nabil Akary was assisting his co-worker when the first of three men entered the store and jumped behind a glass and metal showcase. Akary turned to apprehend the man when two armed men entered the store. When one of the assailants pushed him, Akary pretended to fall and triggered the alarm.

The men smashed two showcases and loaded jewelry into a cloth bag. At the time of the robbery, a female customer and four young boys were in the store. The intruders allowed the customer and the boys to leave. Akary estimates that a minute to a minute and a half elapsed during the robbery. After the men left, Akary ran outside. He observed the get-away car, which had been double-parked outside the store. Police arrived five to ten minutes later. The robbery was caught on surveillance camera.

None of the victims were able to identify any of their assailants. In support of its case, the State produced Derrick Knight, who testified that he was recruited by defendant to participate in each robbery. He testified that defendant recruited the participants in each robbery, defendant drove the get-away car in two of the three robberies, and defendant was the "lead man" in the second robbery. The "lead man," according to Knight, was the first man into the store who detained the employees and any customers. Knight also identified defendant from the surveillance film of the second robbery and confirmed that defendant had short arms.

Dr. Zafer Termanini, an orthopedic surgeon, also testified on behalf of the State. He testified that the person shown in the surveillance video of the second robbery had movements consistent with a person with a congenital condition of shortened upper limbs and limited use of the hands. He also examined defendant, confirmed that he suffered from this deformity, and that he had surgery to address the condition. He also testified that the movements of the lead man depicted in the surveillance video of the second robbery were consistent with the physical capabilities of a person with defendant's condition.

Defendant was arrested on April 10, 2004, as a result of a domestic violence report. Officers Rudolph Simmons and Dashawn Williams of the Orange Police Department responded to a domestic violence call involving a firearm. The officers reported to defendant's mother's home, where she pointed to defendant as he passed the house in a car. The officers followed defendant a short distance and stopped him, removed defendant and his passenger from the vehicle, and searched defendant and the interior of the vehicle for the firearm. Defendant was arrested and the officers seized various items from his person both at the scene and at the police station.

On appeal, defendant raises the following arguments:

Point 1 The trial court erred in denying defendant's motion for a mistrial during the jury deliberations.

Point 2 The trial court erred in permitting Dr. Termanini to testify as an expert witness for the State.

Point 3 The trial court erred in denying defendant's motion to suppress the mask police seized upon his arrest.

Point 4 The trial court erred in denying defendant's motion to sever the tampering with a witness charge from the substantive offense.

Point 5 Defendant's sentence is excessive.

We commence our discussion of the arguments presented by defendant by addressing his contention that the trial judge should have declared a mistrial during jury deliberations. An outline of the fractious deliberations is in order to establish the context of defendant's request for a mistrial.

Trial commenced on September 20 and continued on September 21, 26 and 27, 2006. Summations occurred on September 27, and the trial judge charged the jury on September 28. The judge completed the charge before lunch. After lunch, the jury reassembled, received instructions on the use of video equipment and supplemental instructions concerning Count Twenty-one (tampering with a witness) of the indictment. The jury commenced its deliberations. The record does not reveal the time jury deliberations started, but at 4:05 p.m., the judge reported the jury had a question. Marked as Exhibit C-2, the jury inquired "Please describe in plain words what 'legally accountable' means in regards to the defendant." The judge informed the jury he would respond to their question the next day.

The following morning, the trial judge responded to the question. At 10:35 a.m., the jury asked another question. Marked as Exhibit C-3, the jury asked, "If decisions are not unanimous how do you record it on verdict sheet?" Then, at 10:45 a.m., the judge received another question. Marked as Exhibit C-4, the jury asked, "Can we change foreman?" The judge informed the jury that its verdict must be unanimous on each charge and that "all twelve of you must agree as to the verdict." As to the C-4 inquiry, the judge told the jury it could change the foreman.

At 11:45 a.m., the jury sent another note marked as Exhibit C-5. This time, the jury inquired whether juror number one, the originally designated foreman, could be replaced by one of the alternates. The jury informed the judge that "[juror number one] is very disrespectful of -- pre-judgmental." After considerable consultation with counsel, the judge addressed the jury as follows:

It is your duty as jurors to consult with one another and to deliberate with the view to reaching an agreement if you can do so without violence . . . 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 -- but do not surrender your honest conviction as to the weight or -- evidence solely because of the opinion of your fellow juror -- purpose of returning a verdict. You are not partisans, you are judges, judges of the facts.

I will repeat, there is nothing different in the way a jury is to consider the proof in a criminal case in that which all reasonable people treat any question depending upon evidence presented to them. You're expected to use your own good, common sense. Consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction in the light of your knowledge of how people behave. It is the quality of the evidence, not simply the number of witnesses that control.

The judge then asked each juror "will you and can you follow the

Court's instruction?" When each responded affirmatively, the jury resumed its deliberations.

At 4:10 p.m., the judge received another question from the jury. Marked as Exhibit C-7, a juror requested permission to leave the jury. The note stated,

I, juror number six, would like to step down from this jury box because I am being influenced against my will from juror number one that David Mackoon is guilty of every charge which I do not feel that way, so I am not judge this case -- so I cannot judge this case fairly. I will seriously hurt this old man if I am stuck in here any longer. Thanks, juror number six.

The judge received another note from the jury at the same time as Exhibit C-7. This note advised the court that "Juror number four is about to get violent with juror number one because of his behavior and the way he is proceeding (actually stalling) the verdict decision. This is not going anywhere because of juror number one. We cannot come to a unanimous decision."

Then, another note was received at 4:20 p.m. Marked as Exhibit C-9, the note stated, "Honorable, judge, I would like to request at sidebar in private with you and other attorney please, newly appointed foreperson juror number twelve!!" September 29 was a Friday. Due to the late hour, the judge instructed the jury to return on Tuesday, October 3. As the jury was leaving the courtroom, juror number one slipped a note to the judge's team leader. This note, marked as Exhibit C-10, contained the following message from juror number one:

Jurors keep attacking my person because of my vote, and there's four exclamation points there, . . . And then underneath that it says juror number one. Then underneath that it says one saying, [']you're mental[']. Two saying, [']you're childish[']. Three saying, you're like a mother talking to a two year old child. Jurors did not deliberate 4:15 to 4:25.

On October 3, defendant moved for a mistrial. Defendant argued that "the deliberative process has been exhausted" and the notes had also revealed the deliberative process and "the count." Thus, the "sanctity" of the deliberative process had been violated. Alternatively, defendant urged the judge to conduct a voir dire in which he inquired of each juror whether they could continue to deliberate. The judge quickly rejected the mistrial motion stating that "I don't entertain for one second that a mistrial is required under these circumstances." He observed that some jurors strongly disagreed with each other but found continuation of deliberations was not unjust.

The judge did, however, question individual jurors, specifically jurors number twelve, six, four, and one, and then the entire panel to determine whether they were able to review the evidence and deliberate fairly and impartially. Each responded they could do so. The responses given by individual jurors, however, revealed a volatile and emotionally charged jury room. Juror number twelve initially requested to be relieved because "[t]he volatility that's in the room is just putting too much stress on me. I can't do this anymore." Juror number six reported that juror number one was

trying to say that he can be here forever, which I can't because I have a job and -- To him, I guess, this is a joke or he doesn't mind staying here forever and the way he's coming out, . . . unless he gets his way, it's his way or no way and he'll be here forever.

Once the jurors who had sent the notes responded that they were capable of continuing their deliberations and could do so fairly and impartially, the judge asked the entire panel to answer the following question: "Whether you the jury can [reach] unanimous verdicts on any counts, period." The judge instructed the panel to respond to the question in writing in a single word, yes or no. The jury quickly responded "yes" in a note marked as Exhibit C-11. The jury was called into the courtroom and the judge asked another "yes or no" question: "Will further time to deliberate be fruitful in connection with any of the counts for which you have not yet reached a unanimous verdict?" Once again, they were instructed to answer in writing. The judge then administered a modified Allen charge.

At 11 a.m., the jury sent a note, marked as Exhibit C-12, in which they responded that further deliberation would be fruitful. The jury was instructed through a sheriff's officer to continue deliberations, and at 11:20 a.m., the jury sent a note that their deliberations were complete and they had reached a verdict. After the jury announced its verdict, the judge polled the jury. Each juror responded that they agreed with the verdict as announced by the foreperson.

On appeal, defendant argues that the trial court "did not scrupulously protect defendant's right to a fair and impartial jury that would decide the State's case according to the evidence and arguments presented." Defendant urges that once the interpersonal problems in this jury arose and deliberations moved into the second and third day, the judge should have declared a mistrial. In addition, one of the jurors revealed the content of discussions and the source of disagreement among the jurors. The State responds that no extraneous influences were introduced to the deliberative process and dissention among jurors is not unusual.

A trial court should grant a mistrial only to prevent an obvious failure of justice. State v. Rechtschaffer, 70 N.J. 395, 406 (1976). The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court. State v. DiRienzo, 53 N.J. 360, 383 (1969). A trial judge's ruling on a motion for mistrial should not be disturbed unless there was an abuse of discretion that resulted in manifest injustice. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

When a juror indicates that the panel is deadlocked, the trial judge must inquire whether further deliberations may be productive. State v. Valenzuela, 136 N.J. 458, 469 (1994). If the judge suspects or is informed that the inability to reach a verdict emanates from interpersonal relationships among jurors, the panel should be directed to resume deliberations. Id. at 473. A mistrial is appropriate where a juror is not just "recalcitrant" but "distraught," and has "apprised the court of significant unfair treatment." State v. Vergilio, 261 N.J. Super. 648, 655 (App. Div.), certif. denied, 133 N.J. 443 (1993). "[A] juror cannot be discharged as 'unable to continue' unless the record adequately establishes that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members." Valenzuela, supra, 136 N.J. at 472-73.

Here, the trial judge followed the recommended procedures. He properly resisted the request to replace juror number one. Id. at 468. Instead, he elected to designate another juror as foreperson and randomly selected that person. Admittedly, by Friday afternoon the atmosphere in the jury room seemed particularly fractious. Following the weekend, however, the mood of the jury seemed less contentious. Each juror, who had written individually to the trial judge, advised him that they remained capable of fairly and impartially reviewing the evidence. Significantly, the source of the uproar, juror number one, also stated that he could follow the judge's instructions and was capable of fairly and impartially continuing the deliberations. Further, defendant did not object to the modified Allen charge.

Defendant attempts to liken the facts here to the facts of Vergilio. In Vergilio, supra, the juror in question was ridiculed by the other jurors, and his questions were either changed or prevented from reaching the trial court. 261 N.J. Super. at 654 n.1. Here, jurors number one, four, six, and twelve notified the court of conflicts among the jurors. Jurors number six and twelve asked to be excused. When questioned individually by the court, each juror agreed that he or she could continue deliberations fairly and impartially. The notes themselves demonstrate that no juror was prevented from expressing his or her view and no juror complained that his or her notes were not reaching the court. Here, unlike Vergilio, there is no suggestion that juror number one was coerced into unanimity.

Moreover, the verdict rendered by the jury was reasonable in light of the evidence. Defendant was convicted only of the charges stemming from the second robbery. It is this episode in which defendant was captured on videotape by surveillance cameras. It is this videotape that allowed the expert to testify that the man who entered the store, slid across a counter, and detained employees moved in a manner consistent with defendant's congenital deformity. In other words, the jury convicted defendant only of the charges for which there was evidence other than that provided by the cooperating co-defendant. In fact, the protracted deliberations appear to have ultimately benefited defendant in that he was acquitted of the majority of the charges. Under these circumstances we cannot declare that the trial judge mistakenly exercised the discretion vested in him.

We turn now to the argument that the witness tampering charge, Count Twenty-one, should have been severed and tried separately. The indictment charged defendant with witness tampering. The charge was founded on a July 30, 2005 letter sent by defendant to Mark Bowers, a participant in the July 2002 robbery of Goldenland. The letter reminded Bowers of his promise not to cooperate with the State, expressed defendant's disappointment with the news that Bowers would cooperate with the State, and exhorted him to abide by his promise. The letter also discussed Knight, a participant in the three robberies and a witness for the State at trial. Defendant referred to Knight as a "lying dog" and stated "he will get what's coming to him!"

Defendant moved prior to trial to sever Count Twenty (conspiracy to tamper with a witness), Count Twenty-one (witness tampering), and Twenty-two (attempt to fabricate physical evidence). The judge denied the motion. He found that the letter clearly expressed consciousness of guilt and that any trial of the witness tampering charge would require reference to the robbery charges to establish the motive for the letter. On appeal, defendant argues that the trial judge should have severed Count Twenty-one. He argues that the witness tampering offense arose at a different time than the robberies, it is different in character than the robbery charges, and not part of the robbery offenses. He also states that the victim, one of the participants in the first robbery, is different than the victims of the various robberies and that the State did not demonstrate that the letter to Bowers was evidential of a consciousness of guilt. We disagree.

Rule 3:15-2(b) governs severance of crimes. It provides, "If for any other reason it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment . . . the court may . . . grant a severance . . . ." The test for severance of offenses is whether proof of one offense would be admissible as proof of the other, consistent with N.J.R.E. 404(b). If so, the separate crimes have a sufficient nexus to each other to justify joinder. State v. Morton, 155 N.J. 383, 451 (1998), cert. denied, 530 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Chenique-Puey, 145 N.J. 334, 341 (1996). The decision to sever is vested in the discretion of the judge. Chenique-Puey, supra, 145 N.J. at 341. Thus, we will not disturb a denial of a motion to sever counts in an indictment unless the decision represents a clearly mistaken application of the principles guiding the considerable discretion of the judge.

Here, the lapse in time between the first robbery in October 2002 and the July 2005 letter is of no consequence. Witness tampering by its nature is an after-the-fact offense. Although the offenses are different in character, they are inextricably related. The letter clearly references the first robbery. Bowers, the recipient of the letter, participated in the first robbery. The letter also referred to another participant in the first robbery, Knight or D-Nice. Moreover, in his attempt to reinforce the initial promise among the participants not to cooperate with the State and to threaten harm to Knight's family, defendant unmistakably implicates himself in the robberies. Finally, a separate trial on this count would also require reference to the three jewelry store robberies.

While joinder of the witness tampering charge with the robbery and weapons charges undoubtedly caused prejudice to defendant, the prejudice derives from the inextricable relationship between the underlying offenses and defendant's attempt to thwart cooperation with the State by other participants. This is not the sort of prejudice contemplated by the rule permitting severance in certain situations. See, e.g., Chenique-Puey, supra, 145 N.J. at 342.

Defendant's contentions that the trial judge should not have allowed the testimony of Dr. Termanini as an expert and should have suppressed the mask seized by police when defendant was arrested are insufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that the expert had the requisite qualifications to offer his opinion that the condition he observed during a physical examination of defendant was consistent with the movements of the person depicted in the surveillance tape of the second robbery sliding across a counter in a jewelry store. Furthermore, resolution of the motion to suppress required the judge to consider the credibility of the arresting officer and defendant. He found the officer credible and denied the motion to suppress. There is no basis for this tribunal to alter the credibility determination of the trial judge.

Finally, defendant argues that the aggregate term of thirty years with a parole ineligibility term of twenty-five years is excessive. We disagree.

The trial judge sentenced defendant as a persistent offender to an extended term under N.J.S.A. 2C:44-3a. Imposition of an extended term was well-deserved. As an adult, defendant has been found guilty or pled guilty eight times. Three of his prior convictions are for robbery; four are for weapons offenses. He had been incarcerated five times prior to the commission of the July 2002 robbery, which he committed less than three months after achieving parole for a 2001 conviction of unlawful possession of a handgun. Under these circumstances, we cannot conclude that the sentence imposed by Judge Ravin is a clear abuse of his considerable discretion to fashion an appropriate sentence. State v. Cassady, ___ N.J. ___, ___ (2009) (slip op. at 25); State v. Roth, 95 N.J. 334, 364-66 (1984).

Affirmed.

 

No Early Release Act, N.J.S.A. 2C:43-7.2.

The record suggests that Exhibit C-1 is the verdict sheet.

The note containing the question reflects that the jury prepared the question at 3:00 p.m.

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

The State dismissed Counts Twenty and Twenty-two at the close of the first day of trial.

The full text of the letter was read to the jury at the close of the State's case. Marked as DM-1A, the letter states:

July 30th, 2005. "Peace Mark. I came from court on Friday. Me and Dave think you're going [to] flip on us. But I told Dave I got a letter from you the other day and you said disregard the last letter you sent him! Dave was mad and hurt at the same time just like me. Dave show me the letter you wrote him and the lawyers said you're coming [to] testify on us! Bro, what's going on, a man just have his word. And you give us your word that you will go to trial together! But when I go to court I get bad news. I'm trying to go home to my family. I am not thinking about my little wife Ni-Ni. That's the last thing on my mind right now! Don't flip on me and Dave, we are your family as well, Bro. Remember that I love you! O.K. And I respect you as well, so don't let us down. Three the hard way. Remember put all three on the beeper for the last number, bro. Me and Dave will never turn our back on you, so don't do it to us. So don't lie on us because we wasn't there at no robbery in Bloomfield. You know that. D-nice is a lying dog and he will get what's coming to him! Or it may be his sister or brother or mother, but someone will get it and you can bet or best on it bro. LA. Think about what you did bro. I love you, so cut me and Dave loose, okay. You can do it for us! Mad love bro keep your head up Dave and Dave love you. P.S. Write back ASAP and tell me what is what. Okay."

(continued)

(continued)

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A-4227-06T4

July 21, 2009