STATE OF NEW JERSEY v. DAVID L. BAKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6028-06T46028-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID L. BAKER,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 1, 2009 - Decided

Before Judge Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-03-0335.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was the subject of a four-count indictment, charging him with (1) second-degree robbery, N.J.S.A. 2C:15-1a(1); (2) second-degree burglary, N.J.S.A. 2C:18-2a(1); (3) third-degree theft, N.J.S.A. 2C:20-3a; and (4) third-degree hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3b(4). Prior to trial, on the State's motion, the theft count was dismissed. At the close of the State's case, the court granted defendant's motion for a judgment of acquittal on the robbery and burglary counts because the evidence of identification of defendant as a perpetrator of the crimes was insufficient to induce any reasonable juror to find defendant guilty of those charges beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967); R. 3:18-1. Only the hindering count went to the jury, and the jury found defendant guilty. The judge imposed a "time served" sentence of 319 days in the county jail.

On appeal, defendant argues:

POINT ONE

THE POLICE OFFICERS LACKED PROBABLE CAUSE TO ARREST THE DEFENDANT (NOT RAISED BELOW).

POINT TWO

FAILURE TO GIVE MIRANDA WARNINGS AFTER CUSTODIAL INTERROGATION VIOLATED DEFENDANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHTS (NOT RAISED BELOW).

POINT THREE

PROSECUTOR'S STATEMENTS ROSE TO THE LEVEL OF MISCONDUCT WHEREIN HE:

A. DECLARED IN OPENING "THE STATE KNOWS THE DEFENDANT IS A ROBBER" (NOT RAISED BELOW).

B. "BACKDOORED" IMPLICATION OF GUILT USING INDICTMENTS THE JUDGE DISMISSED (NOT RAISED BELOW).

C. MISSTATED THE DEFINITION OF REASONABLE DOUBT (NOT RAISED BELOW).

POINT FOUR

PLAIN ERROR OCCURRED WHEN THE:

A. COURT FAILED TO DOWNGRADE TO DISORDERLY PERSONS OFFENSE ONCE OTHER INDICTMENTS WERE DISMISSED (NOT RAISED BELOW).

B. COURT ALLOWED PROSECUTOR'S BACKDOORING OF ACCUSATION AND IMPLICATION OF GUILT REGARDING THE INDICTMENTS THAT HAD BEEN DISMISSED FOR LACK OF EVIDENCE (NOT RAISED BELOW).

POINT FIVE

INEFFECTIVE ASSISTANCE OF COUNSEL

A. FAILURE TO REQUEST DOWNGRADE TO DISORDERLY PERSONS OFFENSE (NOT RAISED BELOW).

B. INTRODUCTION OF HEARSAY EVIDENCE WHICH EARLIER IN TRIAL HE SUCCESSFULLY OBTAINED RULINGS TO EXCLUDE (NOT RAISED BELOW).

C. FAILURE TO REQUEST MISTRIAL WHEN PROSECUTOR INSINUATED IN CLOSING THAT DEFENDANT WAS GUILTY OF DISMISSED CHARGES (NOT RAISED BELOW).

POINT SIX

VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (RAISED IN PART).

POINT SEVEN

DEFENDANT'S SENTENCE WAS EXCESSIVE.

These arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Accordingly, we affirm. We nevertheless set forth a brief summary of the facts and limited comments on the arguments raised by defendant.

I

On November 6, 2003, at about 9:30 a.m., two officers responded to the Edgewater Manor Apartments, after the local police department received a report of a strong-arm robbery. They interviewed the victim and obtained a general description of the two perpetrators and of the items stolen. The victim was acquainted with one of the perpetrators, but described the other only as a "black male." The victim was confined to a wheelchair and was unable to defend himself. The assailants ran from his apartment with the items they stole, including a TV controller, a DVD player and DVDs, a phone, a set of three Japanese samurai swords, and various other items.

One of the officers canvassed the area and obtained information from a maintenance person leading him to believe the suspects ran toward N building. The officer noticed that a sliding glass door of one of the apartments in that building appeared to be "broken or unhinged" and "appeared to have been jimmied off of its track and opened and then forced closed." The officers learned that the occupants had been evicted from that apartment, and, indeed, the front door contained a notice to that effect.

The officers knocked several times and received no answer. They obtained a key from maintenance personnel. Upon opening the door, they found that the chain lock was in place. An individual, later identified as defendant, was seen running about in the apartment. The police identified themselves and requested entry. Defendant came to the door and said he did not want to speak to the police. They told him they were investigating an incident in the area and also investigating why the side door of the apartment was knocked off its track. Defendant continued to refuse entry to the police and attempted to push the door closed. The police forced the door open and entered the apartment, breaking the chain lock.

The police directed defendant to sit on the couch. They looked through the apartment to see whether any other individuals were present. In doing so, they observed in plain view the items reported stolen.

Defendant was then placed under arrest and handcuffed. When asked his name, he said it was Terrence L. Bell. One of the officers knew Terrence L. Bell and knew that defendant had given a false name. When defendant was taken to the police station and informed that the police knew he was not Bell and was again asked his name, he gave another false name, Rodney Price. He gave his correct date of birth and social security number, from which the police ascertained his true identity.

II

We first note that defendant did not raise in the trial court any of the arguments now raised on appeal. Accordingly, our review is guided by the plain error standard, and we will not reverse on grounds of any such error unless it was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Defendant's argument that the police lacked probable cause to arrest him is meritless. Probable cause to support an arrest exists where a police officer has a well-grounded suspicion or belief of guilt. State v. Davis, 50 N.J. 16, 23-25 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968). The reasonableness of the suspicion should be considered under the totality of the facts and circumstances known to the officer at the time. Id. at 25. It is sufficient if the officer has a reasonable suspicion or belief that an offense is taking place or has occurred and the suspected individual is or was a party to it. State v. Bates, 202 N.J. Super. 416, 423 (App. Div. 1985).

Considering all of the circumstances leading up to defendant's arrest, it is abundantly clear that the police had probable cause to arrest. Defendant was found in an apartment in which he was not a resident, and in which the residents had been evicted. There were signs of unlawful entry. A witness observed suspected perpetrators of the robbery and burglary fleeing to that building. Defendant was uncooperative with the police. The stolen items were in the apartment. All of this occurred within minutes of the crime. It was plainly reasonable for the police to suspect that defendant was a party to the crime.

We reject defendant's contention that his Miranda rights were violated when he was asked his name. Routine questions asked during the booking process or for bail purposes are ministerial in nature and outside the privilege against self-incrimination. State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977).

Defendant complains of three comments by the prosecutor in his opening and closing statements. The prosecutor began his opening by saying "the State knows that the defendant is a robber." This was an improper comment, and it should not have been made. However, the comment should not be viewed in isolation. In context, this is what the prosecutor said:

Ladies and gentlemen, the State knows that the defendant is a robber. We know that on November 6th, 2003 David Baker went to the victim, James Boyd's house, and robbed him. That can't be your position now because when we start out, Mr. Baker is innocent until proven guilty.

But I'm confident that once you've had a chance to listen to the testimony and you go back in that jury room at the end of your deliberations, your position will be the same as the State's that the defendant is guilty of all of the charges as in the indictment.

Thus, the improper statement was tempered by what followed, which minimized any potential prejudice. There was no objection, which is an indication that defense counsel did not consider the comment prejudicial. The absence of an objection also deprived the court of the opportunity to issue a curative instruction. Considering the complete passage of which the offending comment was a part, the absence of objection, and the fact that defendant was not convicted of robbery, we are satisfied that the comment did not have the clear capacity to produce an unjust result. Accordingly, the error was harmless and does not warrant reversal.

Defendant also complains that in his opening the prosecutor misstated the law regarding the definition of reasonable doubt. In our view, the prosecutor's comments in this regard were innocuous and did not have the capacity to mislead the jury.

Finally, defendant argues that the prosecutor should not have been allowed in summation to discuss the substantive crimes of robbery and burglary, of which he had been acquitted on his motion by the court. We disagree. To prove its case of hindering, the State was required to prove that defendant "with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense," gave "false information to a law enforcement officer." N.J.S.A. 2C:29-3b(4). Therefore, neither the prosecution of a hindering charge nor an argument to the jury regarding that prosecution could reasonably be made in a vacuum. The prosecutor had the right to argue that defendant's purpose in giving a false name was to hinder the police in their investigation of him for committing "an offense." Whether he was ultimately convicted of the offense for which he was then being investigated is immaterial.

Defendant argues that his counsel was ineffective for failing to request a downgrade of the hindering charge to a disorderly persons offense. Under the Strickland/Fritz test, ineffective assistance of counsel will not be found unless a defendant satisfies two prongs: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. Neither prong is satisfied here. Counsel was not deficient for failing to seek a downgrade, because a downgrade was not legally obtainable. Defendant's argument rests on the false premise that because the robbery and burglary charges were ultimately dismissed, the gradation of the hindering charge would fall into the default category, "[o]therwise, it is a disorderly persons offense." N.J.S.A. 2C:29-3b. The gradation, however, is based upon the circumstances at the time of the conduct constituting hindering. At that time, defendant knew he was being investigated for and was "liable to be charged" with the second-degree crimes of robbery and burglary, see ibid., thus establishing the third-degree grade of the hindering charge.

Defendant's remaining claims of ineffective assistance of counsel are likewise unpersuasive. Ordinarily, claims of ineffective assistance are best addressed in the context of a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 459-60, 462 (1992). This is because many ineffective assistance claims involve collateral issues outside the trial record and may require development at an evidentiary hearing. Id. at 460. When, however, the claims may be resolved solely by reference to the trial record, the claims may be considered on direct appeal. State v. DeAngelis, 281 N.J. Super. 256, 265-66 (App. Div. 1995); State v. McBride, 213 N.J. Super. 255, 272 (App. Div. 1986). The additional claims raised here fall into this category.

Defendant complains that his trial counsel was deficient for eliciting hearsay evidence which, earlier in the trial, he had successfully excluded. This evidence was elicited from one of the police officers on the scene and involved what the maintenance worker told the officer that led him to N building. This is the testimony elicited on cross-examination by defendant's trial counsel about which he now complains:

Q Also, before you got to apartment N-2, you had seen and spoken with the maintenance worker, is that correct?

A Yes.

Q All right. Now, the maintenance worker, did he describe anybody to you?

A As I attempted to describe earlier, he described two people to me.

Q Okay. And what were the descriptions of those people?

A They were -- one light-skinned black male and -- excuse me, a black male -- and can I refer to my report for just one minute?

Q Yeah, go ahead.

A He described two subjects -- one being black and one being light-skinned, possibly Hispanic.

This evidence was obviously geared to demonstrating the absence of any meaningful description of the alleged perpetrators. Indeed, defendant's appellate counsel states in his appellate brief: "The line of questioning was probably meant to establish that there was no follow up of the maintenance person, or perhaps even cast doubt that a maintenance person existed." Eliciting this testimony was a strategic decision, and it succeeded. The judge granted a judgment of acquittal at the end of the State's case on the robbery and burglary charges due to the inadequacy of the identification. Thus, based upon the trial record, neither prong of the Strickland/Fritz test was satisfied.

Defendant's remaining ineffective assistance claim is that his trial counsel was deficient for not requesting a mistrial "when [the] prosecutor insinuated in closing that defendant was guilty of dismissed charges." This is nothing more than a rehash of the argument that it was error for the prosecutor to discuss the substantive crimes in his summation. For the reasons we have already stated, there was no impropriety. Therefore, counsel was not deficient for failing to request a mistrial. If requested, it would not have been granted, as a result of which the outcome would have been the same.

Defendant's argument that the verdict was against the weight of the evidence is not properly before us because defendant did not move for a new trial on that ground. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Nevertheless, addressing the issue on the merits, we have no hesitancy in concluding that, applying the Reyes standard, the evidence was more than sufficient to support defendant's hindering conviction.

Finally, defendant's argument that his sentence was excessive is meritless. The judge's findings regarding aggravating and mitigating factors were based on competent evidence in the record, and the sentence imposed was not manifestly excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

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

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

The court imposed a "time served" sentence of 319 days in the county jail. We note that a straight county jail sentence is not an authorized disposition for a third-degree crime. The same result could have been achieved by imposing a "split sentence," as authorized by N.J.S.A. 2C:43-2b(2), of one year probation, see N.J.S.A. 2C:45-2a, subject to the condition that defendant serve 319 days in the county jail, with a special condition that probation terminate immediately upon completion of the custodial portion of the sentence.

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A-6028-06T4

July 24, 2009