STATE OF NEW JERSEY v. ERIC SHERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6512-06T46512-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC SHERMAN a/k/a

RASHAWN DAVIS,

Defendant-Appellant.

___________________________________

 

Submitted January 6, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

04-10-0690.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Sharon A. Quinn, Designated

Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent (Dorothy

Hersh, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Eric Sherman was tried before a jury and convicted of second-degree robbery, N.J.S.A. 2C:15-1; third-degree residential burglary, N.J.S.A. 2C:18-2; third-degree criminal attempt to commit theft by unlawful taking, N.J.S.A. 2C:20-3a; and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. The same jury acquitted defendant of third-degree terroristic threats, N.J.S.A. 2C:12-3a, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

The trial court sentenced defendant to an aggregate extended term of twelve years. In accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the court ordered that defendant serve eighty-five percent of his twelve-year sentence without parole eligibility, and imposed a three-year period of parole supervision to commence immediately upon his release.

These are the relevant facts derived from the evidence presented at trial.

On December 10, 2003, Danuta Wiaktor left her home located in the Township of Lawrenceville to help serve Christmas dinners at the Princeton Senior Center. She drove directly home when the dinner ended around 5:30 p.m. When she arrived at her home, she decided to leave her car in the driveway, as opposed to parking it inside the garage, because she intended to go to the store later that evening.

Wiaktor locked her car and went inside the house. As soon as she entered, she heard her dog barking from the kitchen area where the animal was confined. When she went to the kitchen to investigate, Wiaktor noticed the curtain moving from the breeze coming through the open window. Being the month of December, she specifically remembered that she had not left the kitchen window open. At this point, a feeling that something was "terribly wrong" came over her. She gave the following description of what transpired next.

So right away I try to run through the door, through the front door. However, I didn't manage to escape or to leave the house because I saw, when I reached the family room, like two-third I saw on the staircase, almost at the end, [a] black male coming down dressing in like very dark clothes. His face was covered with some kind of woolen scarf, and I was so shocked I couldn't believe what I see. [sic]

Under his right arm he had a new handbag that I just purchased because I was preparing for vacation. In the left hand he no, in the left hand he had the handbag and in the right hand he had a huge screwdriver. So, I looked at him, he looked at me, and he said, give me your fucking money because I kill you. Well, I didn't have any money. So, I look at the guy, and I said to him that I don't have any money, but I can drive you to the nearest ATM because I live in the area that lots of banks are close by.

At this point, the intruder looked at a set of keys hanging at the door, and asked Wiaktor: "Where is [sic] your fucking keys?" Since the man was looking directly at the house keys hanging on the door, Wiaktor surmised that he wanted her car keys. As she ran to the nearby table to retrieve the keys, the man grabbed a number of items Wiaktor kept in the house, including a dish containing loose change and a number of handbags. He then snatched the car keys from Wiaktor's hands and drove off in her car, taking with him keys for the backdoor, car, and garage.

Wiaktor's description of her assailant to the police included that man's race, complexion, approximate age, and the clothing he wore. She also told the responding officers that she could identify him if she saw him again. She gave the police a list of the items taken, including a rosary. A forensic examination of the home revealed that the assailant was injured in the course of ransacking the victim's residence. The police were able to recover blood samples from stains found in Wiatkor's bedroom.

The day following the incident, a police officer responded to Wiaktor's home to show her a series of photographs. According to Wiaktor's trial testimony, the officer placed each picture, "one by one, on the table." Wiatkor correctly selected defendant's photograph from the ones shown to her by the police. Also on this day, the police located Wiatkor's car with two occupants inside: a man identified as Ike Owens and a woman named Barbara Simmons. The car had the keys in the ignition, and contained a number of items that Wiaktor had reported as have been stolen by her attacker. Owens did not match Wiaktor's description of the assailant.

After questioning Owens and Simmons, the police responded to a residence located at East Paul Avenue in the City of Trenton. Upon arriving at this location, one police unit remained with Owens and Simmons for the purpose of having them confirm whether the individual present was the same person who had "loaned them" the car.

After both Owens and Simmons confirmed that the person at the residence was the one who had given them the car, the other responding officers were dispatched to the location. Once there, the officers saw "a black male standing on the stoop of the porch." As they walked closer, they saw that the man was wearing a rosary around his neck and was brushing his teeth. The man identified himself as "Brian Stewart."

Responding Lawrenceville Township Police Officer Detective Sharon Micinski testified that, at that point, she decided to arrest the man alleged to be Stewart, who was subsequently identified as defendant. Based on the totality of the circumstances, which included that the man: (1) matched the description given by the victim of the burglary; (2) was wearing an item of jewelry or religious artifact (rosary) that matched the description of one of the stolen items; and (3) was previously in possession of the stolen car, Detective Micinski concluded that she had probable cause to arrest defendant.

After he was handcuffed, the police noticed fresh cuts, approximately one half inch in length, on defendant's right palm. Through the expert testimony of a State Police forensic DNA scientist, the State established that, within a high rate of probability, defendant's DNA profile matched the DNA extracted from the blood recovered from the victim's bedroom.

Against this backdrop, defendant now appeals raising, through counsel, the following arguments:

POINT I

THE INITIAL DETENTION OF THE DEFENDANT CONSTITUTED AN ILLEGAL ARREST.

POINT II

THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED PURSUANT TO AN ILLEGAL ARREST.

POINT III

THE TRIAL JUDGE ERRED IN PERMITTING A JUROR TO CONTINUE TO DELIBERATE AFTER THE JUROR ADMITTED THAT HE HAD A RELATIONSHIP WITH A MEMBER OF THE PROSECUTOR'S OFFICE STAFF AND HAD CONDUCTED AN EX PARTE CONVERSATION WITH THAT EMPLOYEE.

POINT IV

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE AND ILLEGAL.

We reject these arguments and affirm. As to Points I and II, we are satisfied that the police officers at the scene had probable cause to arrest defendant. Therefore, any evidence gathered by the police incident to that lawful arrest was admissible at trial. As our Supreme Court has made clear in State v. Moore,

We have often stated that the probable cause standard is not susceptible of precise definition. Nevertheless, our jurisprudence has held consistently that a principal component of the probable cause standard "'is a well-grounded suspicion that a crime has been or is being committed.'" "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."

In determining whether there is probable cause, the court should utilize the totality of the circumstances test . . . . That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place."

[ 181 N.J. 40, 45-46 (2004) (internal citations omitted.)]

Here, the police found the victim's stolen car in the possession of two individuals. Inside the car were a number of items reported by the victim as stolen from her home the previous day. These unlawful occupants led the police directly to defendant. Once at the scene, the occupants of the stolen car confirmed to the police, prior to any arrest, that defendant was the person who had given them the car. As they approached defendant, the responding officer noted that defendant matched the description of the assailant given by the victim. Under these circumstances, the responding officer had probable cause to arrest defendant at the scene. Ibid.

As to Point III, we are satisfied that the trial court's actions here were proper, and did not affect in any way defendant's right to a fair trial. The accidental encounter between one juror and a clerical employee of the prosecutor's office, during a time when the trial was not in session, was innocuous and inconsequential. Once this matter was brought to her attention, the trial judge correctly interviewed the juror directly to ascertain exactly what had occurred. Thereafter, the judge confirmed that the juror's ability to remain a member of the jury had not been compromised. Under these circumstances, we discern no abuse of discretion by the judge in permitting this juror to continue to serve in this trial. State v. Hightower, 146 N.J. 239, 266-67 (1996).

The remaining argument in Point IV lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentence imposed by the trial court was a reasonable one in light of all of the relevant factors considered. State v. Cassady, ___ N.J. ___, ___ (2009), (slip op. at 29).

Affirmed.

 

Detective Micinski also testified that she believed defendant was going to elude apprehension because he had "the 10,000 yard stare, looking past me, giving me the indication that there was a possibility he might run or escape." Defense counsel's timely objection was overruled by the trial court. The officer's interpretation of defendant's demeanor as indicative of an immediate propensity to flee is, at best, a hunch. The statement's capacity for prejudice thus far outweighed any remote probative value. Pursuant to N.J.R.E. 403, defense counsel's timely objection should have been sustained, accompanied by an appropriately worded curative instruction. This error, however, does not constitute a basis for reversing defendant's conviction.

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A-6512-06T4

April 6, 2009