STATE OF NEW JERSEY v. GARY SAYERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2074-08T42074-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

GARY SAYERS,

Plaintiff-Appellant.

___________________________________________

 

Submitted March 1, 2010 - Decided

Before Judges Rodr guez, Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865.

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

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, of counsel and on the brief).

PER CURIUM

Following a joint jury trial with co-defendant Derrick Johnson, defendant Gary Sayers was convicted of five counts of first degree robbery, N.J.S.A. 2C:15-1; one count of second degree burglary, N.J.S.A. 2C:18-2; five counts of third degree criminal restraint, N.J.S.A. 2C:13-2; five counts of fourth degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); three counts of second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-5b; and three counts of third degree unlawful possession of a handgun, N.J.S.A. 2C:29-5(b). Shortly thereafter, the judge convicted defendant of second degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. The judge granted the State's motion for extended term sentencing and imposed concurrent terms aggregating fifty years with a NERA parole disqualifier to run consecutive to two ten-year terms with five-year parole disqualifiers for the convictions of possession of a weapon by a convicted felon and second degree burglary.

This is a summary of the proofs. At 11:00 p.m. on June 22, 2006, the T.G.I. Friday's restaurant in Somers Point closed. About twenty minutes later, only five employees remained: Eric Yaeger, William McCamy, Eugenia Juarez, Brian Katinas, and Shawn Brown. Katinas dragged several garbage cans from the kitchen out to the dumpster, leaving one to prop open the back door. He was confronted by a masked man pointing a gun at him. A second masked, armed man stood nearby. The first gunman ordered Katinas to tell him how many people were left in the building and where they were located. Katinas did so. The masked men brought Katinas inside at gunpoint to the dry goods storage area. Along the way he encountered Juarez and Brown. They were also escorted to the storage area. By the time they reached the storage area, a third masked gunman joined them. McCamy noticed the gunmen approaching and alerted Yaeger, who was busy tending to the cash drawer. The first gunman then followed McCamy back toward the storage area at gunpoint, while the second gunman emptied the cash drawer and demanded that Yaeger bring him to the safe in the office. The first gunman told the third gunman to shoot McCamy, but after an interruption from Brown, decided instead to rob McCamy, along with Juarez and Katinas, taking cell phones and money from their pockets. He then produced a roll of duct tape and ordered McCamy to bind everyone else's hands.

Meanwhile, the second gunman followed Yaeger to the office. Once there, Yaeger emptied the safe and handed over the contents. The gunman then ordered him to empty the bottom part of the safe, where money already prepared for deposit is dropped. Initially, when Yaeger told him that he could not access that part of the safe, the gunman "jabbed [him] in the back of the head with the pistol and told [him] to open the [f***ing] safe." Soon, though, he accepted Yaeger's explanation that the only key was held by an armored guard that picked up the contents twice weekly, and directed Yaeger back to the storage area.

The gunmen promptly herded everyone into the beer cooler and told them to stay put. Unknown to the gunmen, the cooler had a faulty lock. The employees waited a short time to ensure the robbers had left before escaping and calling the police.

Steven McGuire, the third gunman, eventually turned himself in and identified defendant and Johnson as his cohorts. Both were arrested. A search of defendant's apartment revealed two woolen masks, a black hoodie, and nine gloves. McGuire testified for the State pursuant to a plea agreement.

Deborah Elliot, defendant's ex-girlfriend, who lived in New Hampshire, testified that defendant owned a small silver revolver that matched the description of that used by the second gunman. Shortly before the robbery, defendant and Elliot broke up. Defendant took the gun with him. Elliot overheard a telephone conversation between defendant and Johnson before he left her house for New Jersey. Defendant told Johnson that he had a gun and asked Johnson "what he had," and said that when he returned to Atlantic City, they were "going to roll." Elliot saw defendant again in New Hampshire on several occasions shortly after the robbery. Defendant was often accompanied by McGuire or Johnson. He appeared nervous and mentioned trouble with the police.

Johnson's fiancé testified as an alibi witness for him. At the conclusion of the trial, defendant and Johnson were convicted of different charges.

Defendant appeals, contending:

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (Not Raised Below).

We disagree.

Near the beginning of his summation, the prosecutor argued:

Maybe Deborah Elliot and Steven McGuire got together and conspired to set up [defendant]. That's the kind of stuff the defense wants you to believe because Steven McGuire is such a master mind. He's such a genius. That's how [defendant's counsel] wants to portray him. He sets it up so far back to set these two guys up and this is what he's going to do and as should be in a [S]uperman or [B]atman movie. He's going to come here and try and help these guys. That's what he's doing. Where does the nonsense come from? It's an argument that a lawyer makes in trial, trying to help him. These are the guys who did the robbery. . . . Trying to help them?

Defense argues that the only evidence that the State has to prove that these two [d]efendants are guilty is the testimony of Steven McGuire. That's all. They have to argue that. That's what they want to convince you. That's why they gloss over all the other important evidence. . . . There's a mountain of circumstantial evidence that . . . independently establishes these [d]efendants are guilty. (Emphasis added).

The prosecutor subsequently warned the jury that it should not rely on "what [defendant's counsel] conjure[d] up" to attack McGuire's credibility, and that counsel was "try[ing] to distract [them] from getting to the truth" when he pointed out inconsistencies in evidence regarding defendant's height. Further, the prosecutor characterized several of defense counsel's arguments as "nonsense," the testimony of two defense witnesses as "laughable," and the alibi to which those witnesses testified as "bogus."

Johnson's counsel objected after the prosecutor's summation, arguing that the prosecutor denigrated him by accusing him of "conjuring," "distracting the jury," and "gloss[ing] over" evidence. Defendant's counsel objected separately regarding another issue not relevant here. The judge instructed the jury that although he "did not find anything inappropriate that anybody said or inapplicable that anybody said," the jury must remember that "the arguments of [c]ounsel are simply not evidence."

A prosecutor is "charged not simply with the task of securing victory for the State but, more fundamentally, with seeing that justice is served." State v. Reddish, 181 N.J. 553, 641 (2004). Consequently, although "afforded considerable leeway" during summation, "a prosecutor must refrain from improper methods that result in wrongful conviction." State v. Smith, 167 N.J. 158, 177 (2001). Specifically prohibited, as relevant here, are "unjustified aspersions on the defense or defense counsel" or unsupported attacks on a defense witness's credibility. State v. Nelson, 173 N.J. 417, 461 (2002).

We evaluate challenged remarks not in isolation but in the context of the summation as a whole. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Carter, 91 N.J. 86, 105 (1982)). Reversal is warranted only if the remarks were "clearly and unmistakably improper" and "substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Ingram, 196 N.J. 23, 42 (2008). In evaluating the remarks, we consider: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Smith, supra, 167 N.J. at 182.

The Supreme Court has deemed unsubstantiated attacks on a defense witness's credibility as grounds for reversal. Nelson, supra, 173 N.J. at 462-63; State v. Rose, 112 N.J. 454, 518-19, 524 (1988). In both Nelson and Rose, the prosecutors argued, without any support in the record, that the expert testimony was contrived in cooperation with defense counsel. In Nelson, the prosecutor also argued that the defense expert was a "partisan," that he had an "agenda," and that he was "wearing the same color jersey as the other people on [the defendant's] team." 173 N.J. at 461-63. Similarly, in Rose, the prosecutor argued that the experts "were explained the law by the lawyers, as to what [the defendant's] being charged with, what he faced[,] and how he could beat the penalty that the law provides for him" and designed their testimony accordingly. 112 N.J. at 518 (emphasis removed). The Court found that such errors justified reversal. Nelson, supra, 173 N.J. at 460-61.

Here, Johnson's counsel objected. The judge had an opportunity to consider the issue and give curative instructions. In contrast to Nelson and Rose, the prosecutor's argument attacking the credibility of the defense's alibi witness finds support in inconsistencies in [that witness's] own testimony, which the prosecutor outlined during summation. In particular, he emphasized the differences between her trial testimony and what she had earlier written in letters to Johnson's counsel. The prosecutor did suggest in inappropriately harsh language that her testimony was contrived (the "grand final[e] of desperation") and was an attempt to "subvert the trial." However, those attacks were not unsubstantiated and this language in itself is not sufficiently prejudicial to warrant reversal. In short, they were fair arguments on the alibi witness's testimony.

On the other hand, we disapprove of characterizations of defense counsel's strategy as "conjur[ing]" attacks on the credibility of the State's witnesses, "distract[ing]" the jury from the truth, and arguing "nonsense" of the sort "that a lawyer makes in trial." These remarks were clearly improper. See State v. Frost, 158 N.J. 76, 86 (1999) (prosecutor characterized defense counsel's summation as merely "lawyer talk"); State v. Kounelis, 258 N.J. Super. 420, 428-29 (App. Div.) (prosecutor suggested that "defense counsel's function was to ask 'confusing questions, make confusing statements and things of the like . . . because that's what they're paid to do'"), certif. denied, 133 N.J. 429 (1992). Although the State argues that those remarks, considered in context, were merely direct responses to defense counsel's arguments and as such were not disparaging, a prosecutor is permitted to make only a "measured response . . . to 'right the scale.'" State v. Murray, 338 N.J. Super. 80, 88 (App. Div.) (emphasis added), certif. denied, 169 N.J. 608 (2001). Furthermore, those remarks were not isolated, and the court's comment that it "did not find anything inappropriate that anybody said" substantially diminished the value of its otherwise prompt and accurate instruction.

However, such remarks do not invariably justify reversal. See Kounelis, supra, 258 N.J. Super. at 429 (improper but not reversible error for prosecutor to suggest "that defense counsel's task was to confound and confuse the jury.") Where they have been grounds for reversal, they usually have formed a pattern of misconduct including inherently more egregious and prejudicial elements. In Frost, the primary source of prejudice to the defendant's right to a fair trial arose not from disparaging remarks about defense counsel's arguments, but from the prosecutor's assertion that "the police officers would not lie because of the 'magnitude' of charges that could be brought against them," because the officers' credibility was a critical issue in the case. 158 N.J. at 86. Likewise, in State v. Acker, 265 N.J. Super. 351 (App. Div.), certif. denied, 134 N.J. 485 (1993), the prosecutor not only disparaged the defense, but made allegations unsupported by the record and, "[s]till more egregious[ly]," implied that the jurors could not fulfill their responsibilities or do justice unless they returned a conviction. Id. at 356-57.

Here, in contrast, although many remarks entailed inappropriate language, considered as a whole, there is nothing substantively in the prosecutor's summation that carries such a risk of distracting the jury from a fair evaluation of the evidence so as to require reversal. Indeed, the jury did acquit defendant of one count of second degree burglary, demonstrating that it carefully discerned the separate roles of defendant and Johnson in committing the offense. However, we conclude that in the context of this case, a reversal is not warranted.

Defendant also contends:

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CONDUCT NOT MERELY OBJECTING TO A PORTION OF DEFENSE COUNSEL'S SUMMATION, BUT BY IMPROPERLY PROVIDING INFORMATION TO THE JURY, WHICH WAS NOT PART OF THE TRIAL RECORD AS PART OF HIS OBJECTION (Raised Below In Part).

During summation, defense counsel argued that Elliot's "story change[d] when the details were challenged" and implied that Elliot had sufficient time to plan her testimony. He cautioned the jury to "[k]eep in mind [that] Elliot came all the way from New Hampshire to try and figure out what she had to say to screw things up for [defendant]." The prosecutor objected, stating, "She came under subpoena. That's inappropriate. She did not come down here on her own. We had to make an application under State and Federal law." Defense counsel questioned whether that fact had been established at trial. The judge could not recall that it had been and promptly instructed the jury:

So the question is, if it's in evidence, you can consider it. If it's not in evidence and it's a lawyer saying something, then you can't consider it. That's the bottom line. If it's testified to, then you can consider it. Because it's in evidence. If it's not testified to and the lawyer just tells you something, it was not part of the trial, [sic] that's not evidence. Not to be considered. Plain and simple.

Defendant argues that he was denied a fair trial because the remark was particularly prejudicial, in that it bolstered Elliot's credibility, and that the curative instruction was insufficient to dispel the harm. We are not persuaded.

A prosecutor may not mention before the jury any facts not directly established or inferable from evidence in the record. State v. Bradshaw, 195 N.J. 493, 510 (2008). Nonetheless, a clear and prompt curative instruction ordinarily ensures that an inappropriate remark will not prejudice a defendant's right to a fair trial. See Reddish, supra, 181 N.J. at 644 (holding that prompt instruction eliminated risk of prejudice from inappropriate comments).

Such is the case here. The offending comment itself presents minimal risk of prejudice, because the extent to which Elliot's trip was voluntary is negligibly probative of her credibility compared with discrepancies in her testimony that were, of course, the focus of defense counsel's argument. To be sure, the judge failed to strike the comment, likely because he could not then recall whether the comment indeed strayed from the record. He gave an immediate instruction. This was sufficient to ensure that the comment would not compromise defendant's right to a fair trial.

Defendant also contends:

THE TRIAL COURT ERRED IN DETERMINING THE DEFENDANT'S PRIOR CONVICTIONS, ALL OCCURRING MORE THAN TEN YEARS PRIOR TO TRIAL, WERE ADMISSIBLE TO ATTACK CREDIBILITY.

Defendant argues that the court abused its discretion by ruling that evidence of his prior convictions were admissible to impeach his credibility if he chose to testify.

The judge considered the length of defendant's criminal history as well as the sheer number of his prior convictions. He concluded that those convictions were not so remote as to warrant their exclusion, provided that they be sanitized pursuant to State v. Brunson, 132 N.J. 377, 394 (1993).

Evidence of past criminal convictions may be introduced to impeach a defendant's credibility. N.J.R.E. 609. Such evidence should ordinarily be admitted unless the court concludes within its sound discretion that the conviction is sufficiently remote either in time or in the nature of the offense, and that the risk of undue prejudice from its admission substantially outweighs its relevance to credibility. State v. Spivey, 179 N.J. 229, 243 (2004). A defendant bears the burden of justifying the exclusion of evidence of his or her prior convictions, and, particularly, "[w]hen a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one[.]" State v. Sands, 76 N.J. 127, 145 (1978).

Defendant did not meet that burden here. He was convicted of: receiving stolen property, burglary and theft in 1985; escape in 1987; possession of a controlled dangerous substance with intent to distribute in a school zone in 1990; unlawful possession of a handgun in 1996; and possession of a controlled dangerous substance with intent to distribute and possession of a weapon by a convicted person in 1997. Although none of those convictions were recent, we conclude that the judge was well within his discretion in finding that defendant's substantial criminal history was not so remote that its probative value with respect to defendant's credibility substantially outweighed any risk of prejudice in its admission.

Defendant also contends:

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VII CHARGING SECOND DEGREE BURGLARY BASED UPON THE EXISTENCE OF A DEADLY WEAPON INTO COUNTS II THROUGH VI CHARGING FIRST DEGREE ROBBERY BASED UPON THE EXISTENCE OF A DEADLY WEAPON (Not Raised Below).

Defendant argues that the judge committed plain error by failing to merge count 7, which charged defendant with second degree burglary, with counts 2 through 6, which charged defendant with first degree robbery.

Under appropriate circumstances, merger of convictions ensures that a defendant will avoid "double punishment for a single wrongdoing." State v. Diaz, 144 N.J. 628, 637 (1996). We use a flexible approach that compares offenses in light of the legislative intent in proscribing them, as well as the facts of each case. State v. Cole, 120 N.J. 321, 327 (1990) (citing State v. Davis, 68 N.J. 69, 81-82 (1975)). To that end, a court should consider

the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[Davis, supra, 68 N.J. at 81.]

Typically, a conviction for burglary, which is complete upon entering, should not merge with a conviction for a separate offense, including robbery, that the burglar intended to commit when entering. Nonetheless, given the court's flexible approach, the facts of a particular case may warrant merger. In State v. Mirault, 92 N.J. 492 (1983), although the court did not address merger in this respect, it noted without elaboration that the trial court had vacated a second degree burglary conviction and substituted third degree burglary, because the trial court "believed the defendant 'ha[d] already been sentenced on th[e] confrontation [that elevated the offense's degree], either on the robbery or on the aggravated assault,'" and should not be punished a second time for it. Id. at 495 n.1.

Defendant contends that his burglary conviction should merge into his robbery convictions, because his being armed was the factual element that elevated the degree of both offenses. However, the verdict clearly indicates that defendant's conviction for second degree burglary was based on the fact of his being armed or displaying a deadly weapon, while his convictions for first degree robbery were based on assaultive behavior apart from merely being armed. The facts of this case do not warrant a merger of defendant's burglary and robbery convictions.

Defendant also contends:

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT I CHARGING CONSPIRACY TO COMMIT ROBBERY INTO COUNTS II THROUGH VI CHARGING ROBBERY (Not Raised Below).

Defendant argues and the State concedes that the court's failure to merge count 1, which charged defendant with conspiracy to commit robbery, into counts 2 through 6, which charged him with robbery, constituted plain error. We agree. Indeed, a defendant "may not . . . be convicted of more than one offense if . . . [o]ne offense consists only of a conspiracy . . . to commit the other." N.J.S.A. 2C:1-8(a)(2). Therefore, defendant's sentence on count 1 is vacated.

Finally defendant contends:

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We disagree. Except as discussed below, we find defendant's arguments without sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(2).

A trial judge exercises considerable discretion in sentencing, and its decision will not be reversed "as long as [it] properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record" and follows the applicable sentencing guidelines. State v. O'Donnell, 117 N.J. 210, 215 (1989). Otherwise, a sentence is invalid only if it "shocks the judicial conscience." Ibid.; see also State v. Bieniek, 200 N.J. 601, 608-09 (2010).

Defendant contends that the judge abused his discretion in sentencing him to the maximum ten-year terms on counts 7 and 37 and ordering that those terms run consecutively with that on count 2 and with one another. However, maximum terms for each of these offenses were within the judge's discretion, given the clear preponderance of aggravating factors. State v. Natale, 184 N.J. 458, 488 (2005).

With respect to the judge's decision to impose the sentences consecutively, such discretion must be guided by the principle that "there can be no free crimes in a system for which the punishment shall fit the crime." State v. Carey, 168 N.J. 413, 422 (2001). To that end, a court should consider whether:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous.

[Id. at 422-23 (quoting Yarbough, supra, 100 N.J. at 644) (quotation marks omitted).]

A court must state its reasons for imposing consecutive sentences, rather than concurrent sentences, and a remand is ordinarily required where such reasoning is absent or insufficient. State v. Abdullah, 184 N.J. 497, 514-15 (2005).

Our review indicates no remand is necessary. As the court adequately reasoned, the burglary and armed robbery for which defendant was consecutively sentenced involved separate acts of violence against separate victims, and his unlawful possession of a firearm began prior to the "single period of aberrant behavior" that spawned the armed robbery. See Yarbough, supra, 100 N.J. at 644.

Defendant's last argument suggests that his aggregate sentence was manifestly excessive. Given the facts, we find that an aggregate seventy-year sentence does not "shock[] the judicial conscience." O'Donnell, supra, 117 N.J. at 215.

 
The convictions and sentences are affirmed, except that the sentence on count 1, charging conspiracy, is vacated. We remand to the Law Division merely for the entry of an amended judgment of conviction.

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

(continued)

(continued)

19

A-2074-08T4

August 24, 2010