STATE OF NEW JERSEY v. DERRICK HARRIS, SR

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4290-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK HARRIS, SR.,

Defendant-Appellant.

__________________________________________________

November 5, 2010

 

Submitted October 20, 2010 - Decided

 

Before Judges Cuff, Fisher and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-10-2407.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

 

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Shortly before midnight on August 9, 2006, Glen Davies left his home in Neptune to drive his son and his son's girlfriend to the train station in Bradley Beach. Glen's wife, Cynthia, went to bed and, after a few minutes, turned out the lights in her bedroom and fell asleep. She woke a short time later to find someone on top of her with one hand across her mouth and nose and the other at her throat. When she struggled, the intruder commanded her to be quiet and asked: "where's the money" and "is anybody else in the house?" Cynthia said the only money in the house was in her purse in the kitchen, her husband was on his way home, and their daughter was asleep in another bedroom. The intruder left her bedroom and headed toward the kitchen. With that, Cynthia locked her bedroom door and dialed 9-1-1. While awaiting the police, Cynthia watched defendant's movements through the window in her bedroom door. Defendant departed before the police arrived.

In the investigation that followed, Cynthia told police the intruder was "a black male," between "five seven and six foot" with "a thin build," and that he was "maybe" around thirty years old, possibly older. Cynthia described the intruder's face as "scruffy," "like it was unshaven and kind of scratchy." She also told police the intruder had "large teeth."

During the investigation that night, Glen Davies was asked whether he had recently seen a stranger or anyone suspicious in the neighborhood. Glen recollected that a man had come to their door approximately a month earlier asking to do odd jobs. Glen described him as "maybe like a street person, a little bit disheveled . . . a black guy, . . . on the thinnish side [and] had like bad teeth or like buckteeth."

In the morning, police showed Glen and Cynthia photographic arrays. Cynthia could not identify the intruder, and Glen could not identify the stranger he saw a month earlier, in the arrays then examined. A few days later, Cynthia examined another array consisting of six photographs, one of which depicted defendant. Upon seeing defendant's photograph, the third in the group, Cynthia exclaimed, "[t]hat's him." She was shown the same photographs in reverse order and again positively identified defendant as the man who intruded into her home on August 9, 2006. Glen was also shown this array but could not identify any of the individuals depicted as the stranger he had seen in the neighborhood approximately a month earlier.

Defendant was indicted and charged with second-degree robbery, N.J.S.A. 2C:15-1, and second-degree burglary, N.J.S.A. 2C:18-2. A trial in early 2008 resulted in a hung jury. Defendant was retried over the course of four days in September 2008. The jury convicted defendant of second-degree robbery; he was acquitted of second-degree burglary but convicted of the lesser-included offense of third-degree burglary. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant was sentenced to a six-year prison term subject to an 85% period of parole ineligibility on the robbery conviction and a concurrent four-year prison term on the burglary conviction.

In appealing, defendant argues:

I. THE TRIAL COURT ERRED IN FAILING TO CAUTION THE JURY CONCERNING POLICE POSSESSION OF MR. HARRIS'S PHOTO, WHICH WAS COMPOUNDED BY THE PROSECUTOR'S QUESTIONS TO POLICE DETECTIVE AS TO WHETHER HE KNEW MR. HARRIS PRIOR TO THE INCIDENT, SUGGESTING THAT MR. HARRIS HAD A CRIMINAL HISTORY. THIS ERROR DENIED MR. HARRIS DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const., Amends. VI and XIV; N.J. Const. Art. I, pars. 1, 10. (Not Raised Below).

 

II. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING MR. HARRIS'S CONVICTIONS COULD BE USED TO IMPEACH HIM.

 

III. MR. HARRIS WAS DENIED DUE PROCESS WHEN DEFENSE COUNSEL WAS PROHIBITED FROM QUES-TIONING A WITNESS WITH REGARD TO MR. HARRIS'S WAIVER OF HIS MIRANDA[1] RIGHTS, WHERE NO STATEMENT WAS INTRODUCED INTO EVIDENCE.

 

IV. THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. HARRIS UNLAWFULLY ENTERED THE DAVIES HOME WITH THE INTENT TO COMMIT A ROBBERY AND THE GUILTY VERDICT ON THOSE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED (Not Raised Below).

 

V. THE PROSECUTOR'S STATEMENTS DURING HIS SUMMATION PREJUDICED MR. HARRIS AND CAUSED AN UNJUST RESULT.

 

A. The Prosecutor's Disparaging Comments About Defense Counsel During Summations Led to an Unjust Verdict and Requires Reversal.

 

B. The Prosecutor Improperly Vouched For the Only Eyewitness In This Case Which Led To an Unjust Verdict and Requires Reversal.

 

VI. THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

 

VII. AT SENTENCING, THE COURT OVER[]VALUED AGGRAVATING FACTORS AND UNDER[]VALUED MITIGATING [FACTORS] RESULTING IN AN EXCESSIVE SENTENCE.

 

We reject these arguments and affirm.

In Point I, defendant argues that the trial judge failed to give a timely instruction regarding the admission of the photographic array. Putting this argument in its proper setting, we observe that defendant acknowledges "identity was the most significant issue at the trial." Indeed, defendant argues that other than Cynthia Davies's identification of defendant as the intruder, "there was no other evidence introduced, physical or otherwise, that connected [defendant] to the Davies home on the night of the incident" and that his "sole defense was that he was misidentified as the intruder." In this circumstance, the State was entitled to the admission of the photographic array in seeking to convince the jury that Cynthia Davies's identification of defendant was reliable and worthy of being credited.

Indeed, defendant does not argue that the photographs were inadmissible. Instead, he argues that the photographs were not presented to the jury in "as neutral a form as possible," State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988), and that their admission should have been accompanied by simultaneous cautionary instructions. Because defendant did not seek a more neutral presentation of the photographs in the trial court and did not request instructions to the jury at the time the photographs were admitted or when first referred to by the witnesses, we must consider whether these purported errors were clearly capable of bringing about an unjust result. State v. Burns, 192 N.J. 312, 341 (2007).

Having closely considered the matter, we find no error in the admission of the photographic array in its existing form despite the fact that the jury might have perceived the photographs as mug shots. The circumstances that have led to the reversal of convictions in prior cases were not present here. For example, there was no written material on the photographs that proved problematic, such as in State v. Onysko, 226 N.J. Super. 599, 605 (App. Div. 1988), where information on the back of the mug shot admitted in evidence revealed defendant had used an alias and was a burglar. We have also reversed convictions where mug shots have been admitted in cases where identification was not an issue because, in that circumstance, the mug shot would convey nothing of relevance to the jury except the prejudicial fact of defendant's prior criminal history. See, e.g., State v. Cribb, 281 N.J. Super. 156, 160 (App. Div. 1995).

Here, unlike Cribb, identification was at issue, as defendant has acknowledged. Indeed, as defendant concedes, his sole defense was misidentification. Accordingly, the means by which Cynthia Davies identified defendant as the intruder -- the photographic array -- was highly relevant. Accord Taplin, supra, 230 N.J. Super. at 99 (holding that "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"). The photographic array was clearly admissible despite the fact that it consisted of mug shots,2 and there was nothing more that could be done -- since the photographs contained no written information or any extraneous material -- to present the photographs in a more neutral manner.3

We thus turn to defendant's only colorable argument on this point: that the judge should have given an immediate instruction when the photographic array was first presented at trial. The first and only occasion on which the judge cautioned the jury about the photographs was during his final charge. At that time, the judge told the jury that "many or all of the photographs appeared to have been taken by a law enforcement agency or some other government entity," and advised the jury:

You are not to consider the fact that the agency obtained a photograph of the defendant as prejudicing him in any way. The photographs are not evidence that the 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; various forms of government employment, private employment requiring state regulation, including but not limited to casino license applications, security guard applications, etcetera [sic]; or from a variety of other sources totally unconnected with criminal activity.

 

Defendant does not argue that these instructions were incorrect or insufficient; he argues only that they should have been given earlier.

Although it would have been preferable for the judge to have instructed the jury that the photographs contained in the array should not be viewed as evidence of prior criminal activity, see State v. Fortin, 189 N.J. 579, 601 (2007) (emphasizing that a curative instruction is most effective when given at the time the evidence in question is admitted as well as in the final charge), there was only a short delay between the admission of the photographs and the judge's instructions. The trial transcript reveals that the testimony defendant has cited to us as prejudicial came from the State's final witness. That testimony was followed by the parties' brief argument on defendant's motion for a judgment of acquittal, a lunch break, a brief charge conference, and the summations of counsel. Because the delay in giving the cautionary instruction was relatively brief, we find no merit in the argument that the lack of a cautionary instruction earlier in the trial -- raised for the first time on appeal -- was clearly capable of producing an unjust result.

In Point II, defendant argues that the trial judge abused his discretion in ruling that defendant's fourteen-year old convictions for possession of controlled dangerous substances (CDS) could be used to impeach defendant if he testified. The judge's determination on this point stems from N.J.R.E. 609, which provides that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The party seeking to bar use of a conviction must demonstrate why it should be excluded. State v. Sands, 76 N.J. 127, 144 (1978).

The matter largely turns on remoteness and the level of seriousness of the prior conviction. As our Supreme Court has held, the trial judge "must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. The trial judge applied this test and determined that defendant's fourteen-year old convictions were sufficiently serious and not so remote as to bar their use had defendant taken the stand. That decision rested within the sound discretion of the trial judge. Id. at 144; State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987).

The State sought to use defendant's 1994 convictions arising from two separate indictments of third-degree CDS possession; at that time, defendant received concurrent three-year probationary terms. The record further reveals that, in 1995, defendant violated the terms of probation and was incarcerated. Defendant was also convicted in municipal court of numerous other offenses, including: shoplifting in 1994; shoplifting and possession of burglar's tools in 1995; trespassing in 2004; shoplifting and possession of a hypodermic needle in 2004; and shoplifting in 2006. The judge recognized that the municipal convictions could not be used to impeach defendant's credibility but viewed these intervening municipal convictions as sufficient to "bridge the gap" in time between the 1994 CDS convictions and defendant's 2008 trial. That holding was entirely consistent with Sands, where the Court instructed that

it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When 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 in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earlier crime, although committed many years before, as well as intervening convictions should be admissible.

 

[76 N.J. at 145.]

 

We find no abuse of discretion in the judge's finding that the fourteen-year old CDS convictions were not too remote in light of the intervening municipal convictions, see State v. McBride, 213 N.J. Super. 255, 267 (App. Div. 1986) (finding no abuse of discretion in a determination that a fourteen-year old indictable conviction was not remote in light of a municipal conviction for possessing marijuana six years prior to trial), or in the determination that the third-degree CDS convictions were of sufficient import to justify their use for impeachment purposes in a trial accusing defendant of robbery and burglary, see State v. Lagares, 247 N.J. Super. 392, 397 (App. Div. 1991) (holding that a CDS conviction has "a bearing on defendant's credibility"), aff'd in part, rev'd in part on other grounds, 127 N.J. 20 (1992).

We find insufficient merit in the remainder of defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2Although the photographs in the array were not labeled "mug shots," they consist of front and side views of the individuals depicted in the classic form that photographs are taken of individuals when arrested.

3We further note in this regard that the only reference to the photographs as "mug shots" that the jury heard came from defense counsel, who asked a police witness: "And when someone is arrested, is it standard procedure to take a mug shot?"