STATE OF NEW JERSEY v. ROBERT LICHTENBERGER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5102-05T45102-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT LICHTENBERGER,

Defendant-Appellant.

_________________________________________________

 

Submitted October 2, 2008 - Decided

Before Judges Stern, Payne and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No. 04-12-0821.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes,

Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent (Timothy P. Ward, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction for second-degree robbery

and fourth-degree unlawful possession of a weapon. On this appeal he argues:

POINT I THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT.

POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S USE OF CRIMINAL DISPOSITION EVIDENCE TO PROVE ITS CASE. (Not Raised Below)

POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF UNDULY PREJUDICIAL HEARSAY EVIDENCE. (Not Raised Below)

POINT IV THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED A HIGHLY PREJUDICIAL EXPERT OPINION THAT SHOULD HAVE BEEN EXCLUDED.

POINT V PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below)

POINT VII THE SENTENCE IS EXCESSIVE

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

We reverse defendant's conviction because of the development of repetitive testimony by the State of what must have been understood by the jury as defendant's propensity to commit crime. However, we find no basis to disturb the denial of defendant's motion to suppress, and conclude that the evidence seized by the Lawrence Township Police Department may be introduced at the re-trial.

I

The testimony on the motion to suppress was as follows:

On December 19, 2003, at approximately 1:00 p.m., Detective Ruth Hochreiter of the Lawrence Township Police Department was standing near the management desk at the Toys-R-Us store in Lawrence Township. She was there, while off duty, to pick up a paycheck for her work as a security guard, when she spotted defendant, whom she recognized as a repeat shoplifter, standing with another man approximately seven or eight feet from the exit. After making eye contact with Hochreiter, whom he appeared to recognize, defendant began walking toward the exit, but turned around and walked back towards the middle of the store just before reaching the security sensor near the exit.

After a brief wait, defendant walked out of the store in the "middle" of a group of people who were simultaneously exiting the building. As defendant left the store, the sensor was set off. Defendant continued to walk away from the store as Detective Hochreiter "hollered" and ran out after him. When she shouted defendant's first name, announced herself as a police officer, and told him to return to the store, defendant replied, "I ain't got nothing lady. I ain't got nothing," and continued to walk away.

As Hochreiter caught up to defendant and grabbed his jacket, a CD player of the sort sold at Toys-R-Us fell out. The CD player was not in a bag and there was no evidence that it had been purchased. Following a brief struggle in the parking lot, Hochreiter saw that defendant had a razor blade in his hand. She therefore "backed off," and defendant ran toward the back of the building.

Hochreiter reached a dispatcher from the State Police through a 9-1-1 call on her cell phone as she chased defendant. She again attempted to stop and detain defendant when he slipped on a snow bank. Defendant then produced a knife and threatened to "cut" Hochreiter if she would not let him go. Soon thereafter, Investigator Kristen Marcus of the New Jersey Division of Criminal Justice, who was also at the Toys-R-Us on her lunch hour, pulled up in her car and offered Hochreiter assistance. She advised Hochreiter to "let him go" when she saw that defendant had a knife. Following a brief struggle, Hochreiter did let defendant go, but chased him after calling her headquarters on her cell phone. Marcus called the State Police.

Defendant ran into the woods along Route 1 North with Hochreiter following about seven to eight feet behind and still communicating with the Lawrence Township Police Department on her cell phone. Along the way, she observed defendant drop a second and third CD player as he kept running before being apprehended.

We need not detail the proofs at trial which developed the matter further. We note only that defendant was caught and arrested by Officer James Vardanega of the Lawrence Township Police Department, who, among others, had been dispatched to the scene.

We reject defendant's contention that the warrantless search was illegal because Hochreiter did not actually observe defendant "conceal any merchandise." Defendant asserts "[t]here is no authority . . . that permits the police to seize individuals on the basis of prior offenses," that Hochreiter chased defendant because of her knowledge of his record, and that Hochreiter lacked even the requisite reasonable suspicion to justify an investigative stop. Defendant contends that when the sensor activated, he was leaving the store with a group of people, that there was no proof "that the sensor actually worked properly," and that therefore the officer merely "guessed that the defendant was the person responsible for activating the sensor," and there was no "reasonable suspicion" to stop him.

However, "[f]acts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." State v. Birkenmeier, 185 N.J. 552, 562 (2006) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)); see also State v. Stovall, 170 N.J. 346, 368-69 (2002) (quoting State v. Citarella, 154 N.J. 272, 279-80 (1998)).

While defendant correctly indicates that he could not permissibly be targeted for an investigatory stop solely on the basis of prior criminal history, the record developed on the motion to suppress reveals an objective basis for Hochreiter's reasonable suspicion. Defendant's flight while being chased by Hochreiter after the sensor alarm went off, and while he was being told to stop, "only add[ed] 'weight to the already existing, reasonable articulable suspicion.'" See State v. Pineiro, 181 N.J. 13, 26 (2004) (citing Citarella, supra, 154 N.J. at 281). As a result, Hochreiter permissibly grabbed defendant's jacket to effectuate the investigative stop. See State v. Doss, 254 N.J. Super. 122, 127-28 (App. Div.), certif. denied, 130 N.J. 17 (1992) (citing Kolender v. Lawson, 461 U.S. 352, 366, 103 S. Ct. 1855, 1863, 75 L. Ed. 2d 903, 915 (1983) (Brennan, J., concurring)) (when reasonable suspicion is present, non-lethal force may be used by an officer "to compel compliance with [a] command" to halt for an investigative stop). At least by the time CD players of the type sold at the store fell out of defendant's jacket in plain view and Hochreiter was threatened by defendant with a weapon, there was probable cause to arrest defendant. See State v. Johnson, 171 N.J. 192, 206-08 (2002) (noting plain view requirements).

The motion to suppress was properly denied.

II

Defendant argues that testimony alluding to his prior criminal history constituted evidence of other crimes used to prove that he had acted with a predisposition to commit crimes. Specifically, defendant challenges testimony that Hochreiter recognized him upon seeing him at the Toys-R-Us, suggesting to the jury that he had a prior criminal record. More significantly, there was repeated testimony that defendant had shouted during the chase and struggle leading up to his arrest that he did not want to go back to jail. Defendant did not testify and his convictions were not used to impeach him.

Hochreiter testified before the jury that when she first grabbed defendant, he "spit out a razor blade out of his mouth and turned to me and . . . said he wasn't going back to jail." When describing the chase into the "grassy area" and what defendant said when pulling out a knife, the prosecutor asked if Hochreiter "remember[ed] any of the other things he was saying at that point," and she responded that defendant "[j]ust kept saying he didn't want to go back to jail."

On cross-examination, Hochreiter was asked whether defendant asked her to "let [him] go" when defendant was holding the razor blade. Hochreiter answered in the affirmative, and counsel then asked whether defendant "repeated that a couple of times?" (Emphasis added.) Hochreiter added that defendant told her "[l]et me go, I do not want to go back to jail. I'm not going back to jail."

On her direct testimony, Investigator Marcus also testified that, in response to identifying herself "as a law enforcement officer," she thought defendant said "I'm not going back to jail." She added the statement was part of a "very quick scenario."

We acknowledge that the other crime evidence may be admitted to prove defendant's motive pursuant to N.J.R.E. 404(b), and the endeavor to escape apprehension and assault of the officer could be understood in terms of implementing the desire not to return to jail. See N.J.R.E. 404(b). But here, the unsanitized and repeated references to defendant's desire not to return to jail must be understood as meaning he had previously been there, and this is particularly true as a result of the inference which flowed from Hochreiter's recognition of defendant, his reaction to being observed by her, and the fact she pursued him alone among the group of people leaving the store. No required limiting instruction was given here with respect to the use of such evidence. But see, e.g., State v. Williams, 190 N.J. 114, 133-34 (2007) (requiring limiting instruction for evidence under N.J.R.E. 404(b)); State v. Stevens, 115 N.J. 289, 304 (1989) (same with respect to former rule). See also State v. Kemp, 195 N.J. 136, 147-50 (2008).

The State points out that the testimony was also part of the res gestae and presented a "full picture of the encounter, permitting [the jury] to conclude" defendant knew Hochreiter was a police officer. The State further notes "res gestae evidence requires no limiting instruction." See State v. Martini, 131 N.J. 176, 242 (1993), overruled in part on other grounds, State v. Fortin, 178 N.J. 540, 646-47 (2004); State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001). See also Kemp, supra, 195 N.J. at 146-47. Neverthe-less, here the repeated unsanitized references clearly related to incarceration for other crimes as well as res gestae, and the jury should have been properly guided as to the use of the evidence. See State v. Jenkins, 356 N.J. Super. 413, 431 (App. Div. 2003), aff'd and remanded, 178 N.J. 347 (2004). See also State v. Hardaway, 269 N.J. Super. 627, 630-31 (App. Div. 1994) (need to minimize effect of prejudicial "other-crime" evidence).

While we recognize there was no objection to the testimony or request for a limiting instruction, a limiting instruction was required. See R. 2:10-2 (plain error scope of review); N.J.R.E. 404(b); Stevens, supra, 115 N.J. at 304 (a limiting instruction must accompany other-crime evidence).

The State argues that defendant's "acquitt[al] of resisting arrest and several other crimes" proves the testimony was harmless. But the jury that found defendant not guilty of resisting arrest, assaulting Detective Hochreiter or possessing a razor blade, nevertheless found that he committed a robbery and illegally possessed a knife. We cannot say the error was harmless.

III

We do not believe any other issue warrants comment. R. 2:11-3(e)(2). They can of course, be considered by counsel and the court in deciding how to retry the case.

The judgment is reversed and the matter is remanded for a new trial.

Hochreiter testified at trial that during a search of the area several packages of batteries were found. One of them had blood on the lower left corner. No knife or razor blade were discovered, but at trial Hochreiter stated she saw blood on defendant's hand. At trial Marcus testified she also observed defendant drop a fourth CD player, saw blood on his hands and saw defendant "swing" the knife she saw in his hand.

It also constituted the basis for elevating a theft to robbery. Defendant was acquitted of aggravated assault on Hochreiter, threatening to kill her, possession of a razor blade, possession of the knife for unlawful purpose and resisting arrest.

The jury was charged on first-degree robbery, robbery and shoplifting.

(continued)

(continued)

11

A-5102-05T4

February 5, 2009