STATE OF NEW JERSEY v. VICTOR BAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3891-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR BAYLOR,

Defendant-Appellant.

_____________________________________

 

Submitted May 25, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-03-0367.

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

Paula T. Dow, Attorney General, attorney for respondent (Leslie-Ann M. Justus, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Victor Baylor appeals from his conviction by a jury on charges of armed robbery and related offenses. He also appeals his sentence as excessive. We affirm defendant's conviction and sentence for first-degree armed robbery. We reverse his conviction on aggravated assault and firearms charges and the consecutive sentence imposed on one of those charges.

The relevant facts were developed at trial through the testimony of police officers and the victims of the robbery. On the night of October 24, 2005, Segundo Reyes, the owner of Santana Deli in Trenton, was sitting near the cash register in his store. Three of Reyes's family members were working in the store his nephew, Luciano Peralta; his daughter, Yvonne Reyes; and his brother, Teofilo Reyes-Peralta. One or more customers were also present.

Shortly after 9:00 p.m., two masked men walked into the store. Segundo and the others described the men's masks as head coverings and clothing, like shirts, with holes cut out for the eyes and mouth and pulled over the men's faces. The shorter masked man put a handgun to the head of Segundo. Luciano, who was standing near Segundo, instinctively grabbed at the gun, and a struggle ensued. The taller masked man, who was behind the counter in the area of the cash register, punched Segundo in the face. The taller man then fought with Luciano and punched him two times in the face, causing Luciano to release the shorter man. During the fight, the loose masks of the two men came off their faces. Segundo, Luciano, and Teofilo recognized the two robbers as frequent customers of the deli.

During the fight, Teofilo yelled to Yvonne to call the police. As the struggle continued, Segundo found a small knife near the cash register and stabbed the taller man near his right eye and in the left side of his abdomen. The two robbers fled the store without taking any money.

The police immediately responded to the call for aid and spoke to the victims within minutes of the robbery. The police then checked with local hospitals and quickly learned that a man had come to the emergency room of St. Francis Hospital at about 9:30 p.m. with stab wounds above the eye and in his abdomen. Police officers were dispatched to the hospital. Detective Crosby arrived at about 10:00 p.m. and spoke to the injured man. At first, the man claimed that he had been mugged by two Hispanic men on the street. When Detective Crosby accused the man of lying, he changed his story and claimed that he had been at the Santana Deli during a robbery but had been injured while trying to help the victims fight off a robber. The police brought Teofilo to the hospital, and he immediately identified the injured man by nodding his head and saying "si, si, si, si." The injured man had given a false name when signing into the emergency room, but after the police arrested and charged him, he gave his true name, Kawan Bolt.

Later that night, Segundo, Luciano, and Teofilo were shown photographs of potential suspects at police headquarters. They readily identified a photograph of defendant Baylor as the shorter of the two robbers, whom they recognized as a regular customer of the deli. Segundo and Luciano also knew his name was Victor. At the joint trial of defendant and Bolt, the three victims identified both defendants in the courtroom as the robbers.

In the defense case at trial, Bolt testified, repeating his claim that he walked into the store while a robbery was occurring, and he tried to aid the victims against the robber. He claimed that he and Luciano had reached for the robber's gun at the same time. Bolt also testified that he had been a regular customer of the deli for two years and that he was familiar with co-defendant Baylor, although he did not see Baylor in the deli on the night of the robbery and did not see a gun. Defendant elected not to testify at trial.

The jury found both defendants guilty of all charges: (count one) first-degree armed robbery, N.J.S.A. 2C:15-1; (count two) third-degree attempted theft, N.J.S.A. 2C:5-1 and 2C:20-3a; (count three) fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4); and (count four) second-degree possession of a weapon, namely a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a. After the jury's initial verdict, the State presented evidence against defendant Baylor only on the fifth count of the indictment, second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b, and the jury found him guilty of that charge also.

At sentencing, the court merged counts two through four into count one and sentenced defendant for first-degree armed robbery to fifteen years' imprisonment, with eighty-five percent of the sentence to be served before eligibility for parole and five years of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count five, possession of a firearm by a convicted person, the court sentenced defendant to a consecutive term of seven years' imprisonment with five years of parole ineligibility. Defendant's aggregate sentence, therefore, was twenty-two years in prison with seventeen years and nine months to be served before he could be paroled. The court also imposed appropriate statutory money penalties.

On appeal, defendant makes the following arguments:

POINT I DETECTIVE CROSBY'S REFERENCES TO THE "PICTURE LINK" SYSTEM IMAGES WHICH REYES VIEWED AS BEING A MODERN VERSION OF A MUG BOOK IMPROPERLY IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT.

POINT II INADMISSIBLE HEARSAY WAS ADMITTED REGARDING THE CONTENTS OF INFORMATION PROVIDED TO POLICE DISPATCHERS AND RESPONDING OFFICERS. (Not raised below).

POINT III THE COURT ERRONEOUSLY INFORMED THE JURY OF HEARSAY INFORMATION WHICH IT RECEIVED FROM THE TRIAL INTERPRETERS REGARDING THE SPANISH TRANSLATION OF THE WORD "ASSAULT".

POINT IV THE COURT ERRED IN NOT CONDUCTING AN INQUIRY INTO THE LANGUAGE PROFICIENCY OF THE INTERPRETER WHO TRANSLATED THE TRIAL TESTIMONY OF TEOFILO AND THE EXTENT TO WHICH HER INTERPRETATION DEVIATED FROM A WORD-FOR-WORD TRANSLATION OF TEOFILO'S TESTIMONY (Not raised below).

POINT V THE TRIAL COURT'S JURY INSTRUCTIONS CONTAINED MULTIPLE DEFICIENCIES WHICH SINGULARLY AND CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL (Not raised below).

POINT VI DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS.

POINT VII DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

In addition, defendant has filed a pro se supplemental brief in which he raises the following arguments:

The trial court erred by not granting defendant's motion for a Wade hearing to determine the admissibility of the inherently suggestive out of court photo line up employed by law enforcement at the time of displaying the photo array of the suspect to the victim.

Trial counsel was ineffective by not correcting the factual error established by the State at the time of the admissibility hearing to determine whether or not defendant's photo array procedure was suggestive thereby rendering ineffective assistance of counsel in violation of defendant's Sixth Amendment rights and due process law.

With the exception of an erroneous jury charge concerning the nature of the weapon used by defendant, we find no error. The erroneous charge, however, requires that we reverse and dismiss three counts of conviction and vacate defendant's sentence for possession of a firearm by a convicted person.

I.

Defendant argues that his conviction should be reversed because Detective Crosby twice referred at trial to a computer program used at police headquarters for photographic identification of the defendant, describing the program as a modern version of a "mug book."

In his testimony, Crosby identified a photograph of defendant as the one selected by Segundo through the Picture Link system and described how the system works:

This photograph was obtained by putting in the general physical descriptors of the individual. And then twelve pictures at a time come up on the computer screen, and in about every ten seconds or so you get another twelve. And it keeps going until the individual, if they see the person who is a suspect, identifies them, or we run out of pictures. It is like the old-fashioned mugbook, like they used to have in the movies.

Defense counsel did not object to Crosby's reference to a mug book. On cross-examination by the attorney for co-defendant Bolt, Crosby again referred to the Picture Link system as similar to a mug book, and again, there was no objection. Bolt's attorney then repeated Crosby's statement that the Picture Link system was similar to "the old-fashioned mugbook."

In his charge to the jury, the trial judge gave a limiting instruction about use of photographs of the defendants by the police in conducting identification procedures:

There is evidence photos that were used to identify Defendants Bolt and Baylor, in this case . . . . You are not to consider the fact that the Trenton Police Department obtained a photograph of defendants as prejudicing them in any way. The photographs are not evidence that a given defendant has ever been arrested or convicted of any crime. Such photographs come into the hands of law enforcement from a variety of sources, including, but not limited to driver's license applications, passports, ABC identification cards, forms of government employment, private employment requiring state regulation, applications, security guard applications, et cetera, or from a variety of other sources totally unconnected to criminal activity. So what I'm saying, the photographs come from a number of different ways. Please understand that.

A written copy of the jury charge was provided to the jury for its use during deliberations.

During deliberations, the jury requested a read-back of portions of Crosby's testimony, which happened to contain the second reference to a mug book. Defense counsel did not ask for a redaction but requested that the court restate its limiting instruction to the jury. The court did so as follows:

Before you all leave, the term mug shot was used in that description. I've already told you in the identity portion of the instructions that you have on page 14, you shouldn't consider the fact that the Trenton Police Department obtained photographs of the defendants as prejudicing them in any way. So when the phrase mug shot was used, they were describing a system, the link system, not that the defendants are in a mug shot, that type of thing. And even though you know some of the background of Mr. Bolt, you must not consider it as mug shots or anything of that nature, but that the photographs are just obtained in a variety of different ways. I commend you to read that section of the instruction, page 14.

Defendant now argues that Crosby's references were highly prejudicial and that the court's instruction was insufficient to cure the prejudice.

Because defendant did not object to Crosby's references at trial, or to the limiting instructions given by the trial judge, we review defendant's contentions on appeal under the plain error standard of review. Under that standard, an error is reversible only if it was "clearly capable of producing an unjust result." R. 2:10-2. The error must have been "'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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), overruled on other grounds by State v. Boretsky, 186 N.J. 271 (2006).

We conclude that the references to the Picture Link system as the equivalent of a mug book were error, but did not rise to the level of plain error with a capacity to have produced a result the jury otherwise might not have reached.

Although there is an "inordinate capacity for prejudice to a defendant which inheres in the jury's knowledge that he has already been convicted of a criminal charge[,]" State v. Taplin, 230 N.J. Super. 95, 98 (App. Div. 1988), "where identification is an issue and the State's use of a mug shot is reasonably related to that issue, we have held that the mug shot is admissible for that purpose, in as neutral a form as possible and despite the inferences it nevertheless raises." Id. at 99.

Reference to an identifying photograph as a mug shot was deemed to be reversible error in State v. Cribb, 281 N.J. Super. 156, 162 (App. Div. 1995). There, identification of the robber was the only issue in the case, and the victim used the phrase mug shot despite defense counsel's prior objection and notice to the prosecutor to avoid that reference. Id. at 159, 162. Also, a police detective had "exacerbated" the prejudice to defendant by testifying that he had discussed a description of the robber with other officers and they had suggested defendant as a suspect. Id. at 161. Additionally, the court's curative instruction about the reference to mug shot was inadequate. Id. at 160.

In Taplin, supra, 230 N.J. Super. 95, identification was not at issue. We held the trial court erred in admitting a photograph of defendant, despite defendant's objection, because the jury could reasonably infer the photograph was a mug shot suggestive of the defendant's prior criminal record. Id. at 99. We said there was "no purpose for its admission other than unfairly to permit the jury to draw the inference that defendant had a prior criminal record." Ibid.

On the other hand, in State v. Porambo, 226 N.J. Super. 416, 425-26 (App. Div. 1988), we held that a detective's reference to the defendant's mug shots was not plain error. The judge gave a proper curative instruction and the reference was "fleeting and not subject to prolonged examination." Id. at 425-26; see also State v. O'Leary, 25 N.J. 104, 115-16 (1957) (police officer's reference to defendant's photograph as having come from "our gallery" held not to require reversal and retrial); State v. Miller, 159 N.J. Super. 552, 561-62 (App. Div.) (reference to defendant's "mugshots" held improper but harmless, because the reference was "solitary and fleeting," and the court gave a cautionary instruction), certif. denied, 78 N.J. 329 (1978).

In this case, identification of defendant as one of the robbers was squarely in issue. The trial judge's limiting instruction, substantially the same as Model Jury Charge (Criminal), "Identity - Police Photos" (1992), was sufficient to cure any potential prejudice caused by Crosby's passing reference. The jury was also given a written copy of the instruction and, thus, could be reminded of the limited evidentiary use of defendant's photo throughout its deliberations. That neither defense attorney objected to Crosby's reference to a mug book allows our inference that, "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quotations and citations omitted).

In reading back Crosby's testimony during deliberations, the reference to a mug book should have been redacted, but defense counsel did not make such a request, and the court repeated the cautionary instruction as a reminder to the jury not to reach an improper inference from police use of defendant's photograph to conduct an identification procedure.

We conclude that, as to use of defendant's photo, the jury received "accurate," State v. Jordan, 147 N.J. 409, 422 (1997), "clear and correct jury instructions[,]" State v. Brown, 138 N.J. 481, 522 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997), and that the passing references to a mug book were not so prejudicial as to create a reasonable doubt as to the jury's improper use of that evidence.

II.

Next, defendant contends that he was prejudiced by inadmissible hearsay regarding information received by the police dispatcher and responding officers. Defendant argues that a hearsay description of the incident at the deli was admitted in evidence as recorded in the Trenton Police Department's Computer Aid Dispatch System (CAD) records, which documented the initial 911 call and follow-up information as received by the police on the night of the robbery.

Detective Crosby described how the CAD system operates:

[W]hen the radio room or the dispatcher received the call, first thing they do is key the information into the CAD system, and it generates a case number automatically. And then as they dispatch units and hear other comments, the dispatcher fills that in to the system and it becomes a running record that the radio room maintains.

The CAD system was first referenced at trial in defense cross-examination of Officer Aaron Kelsey, the first witness to testify. The prosecution did not question Kelsey about the CAD system, but Bolt's attorney used the written CAD report to challenge the accuracy of descriptions of the robbers provided to the police in comparison to the defendants on trial. Kelsey was cross-examined as follows:

Q. Is it fair to say that your alert did not actually give a specific height, correct, that it said tall black male or B.M., stab wound above left eye; is that fair to say?

A. I would not say that is fair to say.

Q. Well, was this over the dispatch?

A. This was over the air. I think I gave two -- I gave a general description, I think it was a little more descriptive of just tall. It wasn't very descriptive, but it was a little more descriptive than that.

. . . .

Q. And the description that you provided would have been contained in the dispatch records; is that correct?

A. If they were to capture what I said and put it in on the CAD system, the computer system, not necessarily verbatim, but there should be the fact that I did broadcast the alert. And that I did, at least some portion of the description should be in the CAD system.

Bolt's counsel then marked the CAD report for identification as a defense exhibit. On redirect examination, Kelsey said that the CAD records were a condensed version of his call to the dispatcher, that the suspects were "five foot eight, the other six foot, wearing black hoodies, black masks, armed with a nine millimeter handgun."

Later, in Detective Crosby's direct examination, the prosecution marked for identification blowups of portions of the CAD report. Defendant's attorney did not object to the State's examination of Crosby using the CAD records and specifically stated "no objection" when the prosecution offered the blowups in evidence.

Crosby testified about the content of the CAD report as follows:

You have CAD dispo [sic]; the investigator report; the CAD CSF, call for service, which is a robbery in progress; and 224 is kind of like cop lingo.

I went up to report due. Incident report. Priority is two, which is the urgency. Received by 9-1-1 lines. Call taker was John Donahue. And the CMS is the console he was sitting at in the radio room so you can kind of identify where everybody is seated. . . .

The comments, these are the initial comments typed in. In this, two BMs[,] which again [is] cop lingo, black males with gun just robbed store. And then call received from Santana at mini-Market. And owner stabbed robber. . . . T.E.M.S. means the ambulance is dispatched. Again, not full sentences because they're kind of typing under duress. You get the gist of the stuff into the record.

Again, defendant did not object to this testimony. Rather, defense counsel cross-examined Crosby on whether "the name Victor appears anywhere in those records." In summation, defense counsel argued: "We saw the police dispatch records. And I believe it was Detective Crosby, I asked him, the information that the officers received when they arrived on the scene, wouldn't that information be in the dispatch records." Thus, defendant attempted to use the CAD report affirmatively to show the police misidentified the perpetrators of the robbery.

Defendant now argues that the information in the CAD report that a robbery was in progress, that two black men with a gun had just robbed the deli, and that the owner of the store had stabbed a robber was testimonial hearsay that violated his constitutional rights. See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004).

Initially, we reject defendant's argument that admission of the CAD documents prejudiced his opportunity to argue that an assault committed by the victims had occurred, as opposed to a robbery of the victims. Defendant's contention that "[t]he jurors could have found . . . that Reyes, Teofilo and Luciano made up their claim of the robbery to cover up their criminal assaultive behavior toward the two men who fled" is a far-fetched defense theory and an afterthought on appeal that not even defendant's trial attorney thought worthy of attempting before the jury. There was no evidentiary support for such a defense. Even co-defendant Bolt's testimony would have contradicted the rank speculation it involved since Bolt testified that a robbery was in progress when he stepped into the deli.

More to the point, we reject defendant's constitutional and hearsay arguments because the testimony about the contents of the CAD reports was elicited by defense counsel to challenge the accuracy of the identification of defendants as the robbers, because the testimony was not inadmissible hearsay, because defendant's Sixth Amendment right of confrontation was not violated by the testimony, and because, even if an objection on hearsay or constitutional grounds might have been sustainable, the admission of the testimony was not plain error.

Our Supreme Court recently addressed a similar contention, raised for the first time on appeal, that the trial court had erred in admitting hearsay contained in documents. N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328 (2010). At trial, the defendant had not objected, but rather had consented, to the admission of the documents. Id. at 340. Applying the invited error doctrine, see, e.g., State v. Jenkins, 178 N.J. 347, 358 (2004); Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996), the Court stated that "by consenting to the admission of the documents, defendant deprived the Division [of Youth and Family Services] of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides." Id. at 341. The Court also noted "where defense counsel may have made a strategic decision to try the case based on the documents, instead of possibly facing a witness's direct testimony, it would be unfair . . . to reverse on this issue." Id. at 342.

For the same reasons, defendant in this case may not challenge the admission of the CAD documents after consenting to their use at trial and, in fact, making a strategic decision for their admission to facilitate his own arguments of misidentification.

With respect to defendant's argument based on erroneous admission of hearsay, had a timely objection been made and the trial court been given the opportunity to explore the foundational evidence, the prosecution might have shown a combination of evidentiary rules that would have made the CAD contents admissible. Hearsay exceptions under N.J.R.E. 803(c)(2), excited utterance, and N.J.R.E. 803(c)(1), present sense impression, may have addressed the contents of the 911 call itself, and N.J.R.E. 803(c)(6), the business record hearsay exception, would have applied to the CAD report as the documentation of the 911 call. Additionally, the trial court could have considered whether the CAD report was not hearsay at all because it was not being offered for the truth of its contents, see N.J.R.E. 801(c), or as admissible prior statements of the witnesses who testified, see N.J.R.E. 803(a).

As to defendant's constitutional argument pursuant to Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197, the United States Supreme Court held that the Sixth Amendment's confrontation clause forbids the use of "testimonial" out-of-court declarations if the declarant is not a witness at trial subjected to cross-examination. Here, three of the employees of the deli who provided the information contained in the CAD report were witnesses at trial and subject to cross-examination.

While the 911 call appears to have been made by Yvonne, who did not testify at trial, the prosecution did not use the contents of the CAD report as indicating that a witness other than the three victims who testified corroborated their versions of the incident or their descriptions of the robbers. Moreover, the 911 call was likely admissible as non-testimonial hearsay.

The meaning of "testimonial" out-of-court declarations was explained in Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006), and by the New Jersey Supreme Court in State ex rel. J.A., 195 N.J. 324, 345-47 (2008).

Nontestimonial statements are those "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Testimonial statements are those made in "circumstances objectively indicat[ing] that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

[Id. at 345 (quoting Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237) (citation omitted).]

Here, the 911 call was made to meet an ongoing emergency and not in the course of police interrogation for purposes of later criminal prosecution.

Finally, the admission of the CAD report added little to the prosecution's direct evidence from the victim-witnesses. They had identified both men through photographs and again identified them in the courtroom. They had recognized the robbers as frequent customers of the deli. At trial, the witnesses described the incident that occurred in the store in much greater detail than the bare contents of the CAD report. The CAD report only became relevant as a result of defense attempts to show inconsistencies in the original report to the police and the testimony of the witnesses. It was not plain error to admit the CAD report in evidence, or the related testimony of the police officers.

III.

A.

Defendant argues that the trial judge improperly told the jury about information imparted to him by the certified interpreters, who had been translating the testimony of Teofilo.

Two interpreters were sworn pursuant to N.J.R.E. 604. On direct examination, they translated Teofilo's testimony as stating that defendant and Bolt attempted to rob the store. On cross-examination, Teofilo again described the incident as a robbery. Bolt's attorney sought to impeach Teofilo with his testimony at a pretrial hearing, which had been interpreted by a different interpreter, to suggest that Teofilo had previously described the incident as an assault rather than a robbery:

Q. And do you remember being asked the following questions and giving the following answer, on page 5 line 9?

A. Yes. Yes.

Q. Question by [the prosecutor] to you, "Did a robbery occur at the store on October 24th, 2005? Answer: It was kind of an assault."

A. A robbery, yes, a robbery. The come in with guns and it is a robbery.

. . . .

THE COURT: Do you remember him asking you what happened and you said there was an assault, or like an assault?

THE WITNESS: Yes. Yes. Yes.

. . . .

Q. And do you remember being asked yet again a second time, . . . again from [the prosecutor], "Now, you said the incident was kind of an assault? Yes, it was an assault."

. . . .

Sir, did you give the following answer a second time, "yes, it was an assault?"

A. Yes.

Following a lunch recess, the trial judge advised the attorneys that the trial interpreters had approached him in chambers and informed him that the Spanish word, "asulto," had two meanings, assault and robbery. Concerned that Teofilo's cross-examination may have misled the jury because of the translation discrepancy, and further noting that in the English translation of his trial testimony, Teofilo had used both assault and robbery to describe the incident, the judge proposed to instruct the jury about the interpreters' clarification. Both defense counsel took the position that the court should not provide an explanation or clarification and "that the witness's answer stand as stated." The judge disagreed, stating that the issue was "squarely" before the court because "[t]he court interpreters are an arm of the judiciary, to aid and assist."

When the jurors returned from the lunch break, the court instructed them as follows:

Now, another issue that has come up, the court reporters that we have today approached me at lunchtime and said, you know, there may be differences in interpretation of a given word, assault. And assault, they indicate may mean robbery in Spanish. Well, that could be important in this case. We have an interpretation from a couple of days ago. . . .

There was a record from a couple days ago, and you heard the questioning in that connection by [defense counsel], he asked was it a robbery, and the answer a couple of days ago, it was an assault. Or it was a robbery, kind of an assault, and then he was further asked, he said it was a robbery. He said it was a robbery.

But there is much confusion in my mind that I felt I had to delve into this with this explanation, particularly so because today he did use both the phrases or both terms, and I asked our court reporter to read it back to everyone at lunchtime before you got here, and he said, yes, the assault, the robbery. So, there you are.

I'm not testifying, I'm only telling you that there is a question concerning that interpretation. I think counsel may ask questions to further clarify this of the witness himself. It is terribly important to have an understanding from him as to what he means by a given word. That is really the critical aspect of it, as I see it.

We reject defendant's contentions on appeal that the judge's instruction to the jury was error because it constituted hearsay, testimony by the judge, or expert evidence without proper foundation.

The role of the interpreter is to be a "conduit from the primary witness to the trier of fact." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 604 (2010). An interpreter should, "as far as is possible, . . . translate word-for-word exactly what the primary witness has said." State in Interest of R.R., 79 N.J. 97, 117-18 (1979).

However, "the use of an interpreter always presents some risk of distortion of the 'message communicated by the primary witness[.]'" Biunno, supra, 1991 Supreme Court Committee Comment to N.J.R.E. 604 (quoting R.R., supra, 79 N.J. at 116). There may be some confusion when a word with two or more meanings in a witness's native language is translated into English, especially where the alternative meanings are similar. Cf. State v. Mejia, 141 N.J. 475, 501-03 (1995) (noting "some confusion" in a Miranda warning read to the defendant through an interpreter because of the Spanish word "alquilar"), overruled on other grounds by Cooper, supra, 151 N.J. at 378. To expect the interpreter to choose the "most fitting" definition would improperly make the interpreter more than a mere "conduit." When relevant, an interpreter should inform the court of distinctions and nuances in translation, rather than unilaterally choosing one of several possible translations. Had the interpreters in this case explained the two potential meanings of the Spanish word "asulto" while translating before the jury, there could be no contention that they were imparting hearsay or expert opinion before the jury.

The judge gave explanatory instructions to the jury after the interpreters informed him of their clarification of Teofilo's testimony. The judge was no more a witness than at any other time when a trial judge instructs the jury regarding the law, a point of evidence, or the nature of a ruling that affects the jury's consideration of the evidence. Defendant's contention is untenable that the judge should have allowed a potentially incorrect interpretation to stand after it was brought to his attention. We find no abuse of discretion in the trial judge's clarification of the interpreters' translation.

B.

Defendant argues further that the court erred in not conducting an inquiry into the extent that the interpreter had deviated from a word-for-word translation of Teofilo's testimony and the proficiency of the interpreter.

Pursuant to the Standards for Delivering Interpreting Services in New Jersey, Standard 1.3, promulgated by Administrative Directive 3-04 (March 22, 2004): "The judiciary should use only interpreters registered with the New Jersey Administrative Office of Courts." An interpreter is deemed qualified if registered, and the court need not conduct an independent inquiry into an interpreter's qualifications unless particular circumstances call them into question.

In this case, while Teofilo was being cross-examined, the court stated to the interpreter: "if there is a long response, I ask you to break it up so that you can interpret as close to simultaneously as possible. Sometimes I noticed there are very long responses and you have to reconstruct it, that is not the best way to proceed, as you know." Defendant seizes upon this instruction as a "rebuke" of the interpreter's improper translation. No objection was raised at trial, however, or a request for repetition of Teofilo's testimony to assure that his Spanish testimony had been fully and accurately translated. The court's instruction to the interpreter was nothing more than the trial judge's management of the proceedings so that testimony would be accurately presented to the jury. See N.J.R.E. 611(a) ("The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, . . .").

Defendant argues, however, that the court's instruction to the interpreter was inadequate because a Spanish-speaking juror had commented to a court officer that the translation of Teofilo's testimony was not entirely accurate. After learning of the juror's comment, the judge noted that he had just instructed the interpreter to avoid long narratives so that she could translate more precisely the witness's actual words. The judge then discussed with counsel that the juror "simply . . . has to accept the interpretation given. It is an official interpretation. All the jurors have to be on the same page . . . . she cannot substitute her understanding for that of the official interpreters." Counsel agreed with these statements of the judge.

The court then instructed the jurors as follows:

One of the jurors mentioned to my Sergeant-At-Arms as you exited, that the interpretations may not have been quite accurate by the official court interpreters, and/or that it would be better perhaps if the interpreters followed more closely to the words uttered by the witness.

That is something I'm concerned with, and you heard me give an instruction concerning that. I think it is important that we not have long narrative answers and then a reconstructed interpretation.

It is very hard. We have very good interpreters, but it is very hard to do that, and I appreciate it. So I've given that instruction. I'll just note, once again, to the interpreters, let's try to do that. It is difficult.

And I'll also ask the attorneys to be careful in your questioning so that you don't talk over the interpretation that is coming, that makes it extremely difficult for our court reporter. It is very difficult when we have things interpreted.

Now, there is another issue there. If you speak Spanish, and many of you may, and you feel the interpretation was a little bit off, I have a problem with that. We can only have one interpretation of what happens in the courtroom, and it has to come from the official court interpreters. You all have to be operating on the same page, you all can't have different sets of facts that you're trying to deal with in resolving the difficult issues in this case. I think that is sensible, and that is obvious, and that is the Supreme Court's position on it, and I think it is the only one we can possibly take.

So my very specific instruction to you all is, you have to accept the interpretation as given by the official interpreters. If for some reason you feel you can't do that, it just is too bothersome, you can't do it, I'd like you to talk to me about it. I'll talk to you at side-bar or in chambers, and to see what the issue is and how much of a problem is it. If it is a problem, as I see it, maybe this is not the right case, it is not going to work somehow.

Defendant has not challenged as error the latter part of the instructions to Spanish-speaking jurors. We need not decide whether those instructions were correct in directing Spanish-speaking jurors that they must accept the interpreter's translation even if it differed from their own understanding of the Spanish words actually spoken by the witness.

Defendant is merely speculating that the interpretation of Teofilo's testimony was not accurate. Besides the use of the Spanish word "asulto," which has been addressed, defendant can point to nothing else that suggests incorrect translation. In fact, the Spanish-speaking juror's comment, occurring near the time that the judge himself perceived a problem with the translation and instructed the interpreters to translate in shorter segments and more exactly, was most likely directed to the same problem perceived by the judge, that the interpreter was being forced to reconstruct testimony through lengthy segments of translation.

When a defendant seeks reversal of his conviction based upon the alleged inadequacy of the interpretation of trial proceedings, a reviewing court must decide "whether any inadequacy in the interpretation 'made the trial fundamentally unfair.'" State v. Guzman, 313 N.J. Super. 363, 379 (App. Div.) (quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.), cert. denied, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534 (1990)), certif. denied, 156 N.J. 424 (1998). Although "the general standard for the adequate translation of trial proceedings requires continuous word for word translation . . . minor deviations from this standard will not necessarily contravene a defendant's constitutional rights." Id. at 379 (quoting Joshi, supra, 896 F. 2d at 1309). Nothing in the record suggests that the translation of Teofilo's testimony deviated from what he actually said in any more than a minor way.

Finding no unfairness in the proceedings, especially in view of the affirmative testimony of all three victims identifying defendant as one of the robbers, we conclude that defendant is not entitled to a new trial because of problems in the interpreter's translation of testimony.

IV.

Defendant argues that the trial court gave erroneous final instructions to the jury on accomplice liability, aggravated assault, possession of a weapon for an unlawful purpose, and possession of a firearm by a previously convicted felon.

Because defendant did not object at trial to any of these instructions, we review his contentions on appeal under the plain error standard. State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). That standard of review "requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

Defendant argues that the court's instructions on accomplice liability were erroneous because the State's theory of the case was that defendant was the principal actor wielding a gun and Bolt was the accomplice to the robbery. He argues that he could not be found guilty as an accomplice to Bolt. We reject this argument as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Each defendant could be found guilty as an accomplice of the other in the commission of the robbery. See N.J.S.A. 2C:2-6; Brown, supra, 138 N.J. at 520.

Next, defendant contends that the court's definition of firearm was clearly mistaken because it informed the jury that, whether the gun was real or fake, the State had satisfied its burden of proof on all charges in the indictment. We agree that the court erred in charging the jury that proof of a fake gun was sufficient to prove the elements of counts three through five, aggravated assault and the two firearms offenses.

For conviction on a charge of first-degree armed robbery, the State need not prove that an actual, operable firearm was used. State v. Hutson, 107 N.J. 222, 227 (1987). Any object that simulates a firearm is sufficient to satisfy the statutory element of use of a deadly weapon under N.J.S.A. 2C:15-1b. Ibid. Thus, a fake gun can result in conviction on a charge of first-degree armed robbery. See State v. Grawe, 327 N.J. Super. 579, 592 (App. Div.), certif. denied, 164 N.J. 160 (2000); State v. Ortiz, 187 N.J. Super. 44, 47 (App. Div. 1982).

The same is not true, however, on a charge of aggravated assault under N.J.S.A. 2C:12-1b(4), possession of firearm for an unlawful purpose under N.J.S.A. 2C:39-4a, and possession of a firearm by a convicted person under N.J.S.A. 2C:39-7b. The jury was permitted to convict defendant of those charges even if the State failed to prove that an actual firearm was used in the robbery.

Defendant objects to the following jury charge pertaining to count three, aggravated assault, specifically, the underlined portion:

The indictment is based upon the statute that reads in pertinent part that an actor is guilty of aggravated assault if he knowingly -- that's the state of mind -- under circumstances manifesting extreme indifference to the value of human life points a firearm at or in the direction of another, whether or not the actor believes it to be loaded. So whether the person, the defendant, believes the weapon to be loaded, whether he believes it to be operable, whether it has a firing pin or not, whether it's a fake gun, but certainly looks real, it doesn't matter. If he points it at the person of another under these circumstances, a violation of law has occurred.

. . . .

A firearm is defined as any pistol or other firearm, as the term is commonly used.

[(Emphasis added.)]

As to the jury charge on count four, possession of a firearm for an unlawful purpose, the court made reference to a weapon but did not specifically instruct the jury that it had to find that the handgun pointed at the victims in the course of the robbery was in fact a firearm as defined by statute. The same applies to the court's charge on count five, possession of a firearm by a convicted person. The court instructed the jury that any person convicted of possession of a sawed-off shotgun, as defendant had been, "who purchases, owns, possesses or controls a firearm is guilty" of that charge. The court further stated the elements of the offense, including that the defendant must have "possessed or controlled a firearm[,]" and that the State must prove beyond a reasonable doubt knowledgeable possession or control of "a weapon." The court did not provide the statutory definition of a firearm.

A person is guilty of aggravated assault if he "[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1f., at or in the direction of another, whether or not the actor believes it to be loaded[.]" N.J.S.A. 2C:12-1b(4). In pertinent part, N.J.S.A. 2C:39-1f defines a firearm as:

any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. . . .

Thus, to be guilty of aggravated assault by pointing a firearm, the State must prove that the firearm was capable of firing a projectile. Likewise, the charge of possession of a firearm by certain convicted persons requires proof that a firearm as defined in N.J.S.A. 2C:39-1f was possessed. A fake or toy gun does not satisfy that definition. An incorrect instruction on a substantive element of an offense is reversible error. State v. Rhett, 127 N.J. 3, 7 (1992).

Because defendant's convictions on counts three and four were merged into the count for armed robbery, defendant suffered no prejudice as a result of the erroneous charge and conviction on those counts. See State v. Williams, 298 N.J. Super. 430, 434-35 (App. Div.), certif. denied, 156 N.J. 407 (1998); State v. Bryant, 288 N.J. Super. 27, 40 (App. Div.), certif. denied, 144 N.J. 589 (1996).

On count five, however, defendant was sentenced to a consecutive term of seven years' imprisonment with five years of parole ineligibility. Defendant's conviction and sentence on that charge must be reversed because of the erroneous jury instruction failing to require that the jury find that the handgun used in the robbery and possessed by defendant was a firearm as defined by statute.

Furthermore, we agree with defendant that no evidence presented at trial permitted the jury to conclude that the handgun wielded by defendant was an operable firearm as defined by N.J.S.A. 2C:39-1f. The gun was never recovered and was not in evidence. No witness testified that the handgun used in the robbery was a real handgun and that it was capable of firing a projectile. Without any evidence on that element of the offenses, defendant was entitled to a judgment of acquittal on counts three through five of the indictment.

V.

In his pro se supplemental brief, defendant argues that the trial court erred in not granting defendant's motion at a Wade hearing to suppress defendant's identification because of a suggestive photo line-up used by the police.

At a pretrial hearing, Teofilo testified that two people were involved in the attempted robbery and that he knew one of them - "[t]he littler one" - but did not know his name. Teofilo identified defendant at the hearing. When asked how many times he saw defendants before the day of the robbery, he said defendants came into the store on a daily basis.

Detective Crosby testified that he created a photo array including defendant using the Picture Link system. When shown the photo array, Teofilio picked out defendant's picture.

Based on these facts, the court concluded that the identifications of defendant and co-defendant Bolt were not influenced by impermissibly suggestive police conduct or coaching. The identifications were reliable because of the "peculiar facts and circumstances that surround this case, meaning the defendants and the knowledge of the victims of the defendants."

Furthermore, although defendant argued that his photo was "lighter than the rest of the people in the photo array," the trial judge remarked that the photo array was "as good as I have seen; remarkably so in my judgment." The photographs were "remarkably similar, and while [defendant's] photograph is a little lighter, that is true, it still has some of the background coloration of the others."

We "defer to those fact-findings made by the trial court 'supported by sufficient credible evidence in the record.'" State v. Bogan, 200 N.J. 61, 80 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)); see also State v. Adams, 194 N.J. 186, 203 (2008) (Wade motion reviewed under "sufficient credible evidence" standard). "[T]he trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Ibid. (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)).

We find no error in the trial court's identification rulings and admission in evidence of the testimony that Teofilo and the other victims had identified defendant as one of the robbers.

VI.

Finally, defendant challenges his sentence as excessive, arguing that the trial judge did not give adequate reasons for imposing a consecutive sentence on count five. Because we have reversed defendant's conviction on that count, defendant's argument is now moot. We find no abuse of discretion in the fifteen year sentence imposed on count one, first-degree armed robbery. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. Roth, 95 N.J. 334, 364-66 (1984).

VII.

The judgment of conviction on counts one and two, and the sentence imposed on count one, charging armed robbery in violation of N.J.S.A. 2C:15-1, is affirmed. The judgment of conviction on counts three, four, and five is reversed and those counts are dismissed.

 
Affirmed in part and reversed in part.

Because of the similarity of last names, we will use first names in this opinion, intending no disrespect.

During Bolt's testimony, he had been cross-examined in accordance with N.J.R.E. 609 about a prior conviction.

Available at http://www.judiciary.state.nj.us/directive/ personnel/dir_03_04.pdf.

We reject without discussion defendant's argument that the evidence was insufficient to convict him of counts one and two, robbery and attempted theft.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Defendant also argues that his trial attorney was ineffective in conducting the pretrial Wade hearing. Allegations of ineffective assistance of counsel are usually not ripe for review on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We decline to consider defendant's pro se argument on ineffective assistance of counsel without an adequate record.

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A-3891-07T4

 

August 24, 2010