STATE OF NEW JERSEY v. CHARLES A. DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4303-07T44303-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES A. DAVIS, a/k/a ALLAN

BELL, a/k/a ALLEN KNIGH,

a/k/a ALLEN KING, a/k/a CHARLES

A. KNIGHT, a/k/a CHARLES DUNN,

a/k/a CHARLES WHITE, a/k/a

CHARLES BLESH, a/k/a CHARLES BELSH,

a/k/a CHARLES BELL, a/k/a CHARLES

DAVIS, a/k/a ALLEN KNIGHT,

Defendant-Appellant.

____________________________________

 

Submitted June 1, 2010 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0605.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Uniman, of counsel and on the briefs).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Robert J. Cino, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Charles A. Davis was tried before and jury and found guilty of theft by unlawful taking, in violation of N.J.S.A. 2C:20-3. He was sentenced to nine years of incarceration, with a four-year period of parole ineligibility, which was to be served consecutively to a sentence defendant was then serving. Defendant appeals from the judgment of conviction dated March 17, 2008. We affirm.

I.

The appeal arises from the following facts. Defendant was charged under Indictment 06-06-0605 with second degree robbery, N.J.S.A. 2C:15-1 (count one); third degree burglary, N.J.S.A. 2C:18-2 (count two); third degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count three); and third degree receiving stolen property, N.J.S.A. 2C:20-7 (count four). Thereafter, counts two, three and four were dismissed.

Defendant moved to suppress the statement he provided to the police. The court denied the motion, because the issue had previously been raised, argued and litigated before the Law Division in Middlesex County, and the court had determined that defendant provided his statement after the knowing and voluntary waiver of his constitutional rights. Defendant then was tried on the charge in count one.

At the trial, the State presented testimony from Kathryn Olsen (Olsen), who stated that on April 10, 2006, she was in the parking lot of a department store in Westfield, New Jersey. Olsen testified that she saw an older woman walking to her car. She then saw the woman grabbing her pocketbook from a person in a car.

Olsen said that she briefly observed the person in the car. Olsen stated that the person was a "dark-skinned individual." She described the person as "slight, not muscular." She said that he weighed "maybe 165 pounds, [or] 150 [pounds]." Olsen also stated that the vehicle was "a small red compact car." Olsen called 9-1-1 from her cell phone and reported that a robbery was taking place.

Olsen gave the person taking the 9-1-1 call the license plate number of the car. Olsen said that the car "took off" and "headed out of the parking lot." She testified that there were two individuals in the red car. Olsen went over to the woman. According to Olsen, the woman "was a little shaken up[.]" She told Olsen that someone had stolen her pocketbook. The woman had a cut on her hand, which was bleeding. Olsen remained with the woman until the police arrived.

On cross examination, Olsen stated that she could not definitively recognize the two individuals who were in the red car. Olsen acknowledged that, in the statement that she gave to the police after the incident, she said that she did not see "any visible injuries[.]" On redirect, Olsen said that, when the police asked her about the woman's injuries, she had forgotten to mention the cut on the woman's finger.

Marguerite Tristram (Tristram), testified that on April 10, 2006, she was shopping at the department store in Westfield. Tristram was eighty-two-years old. She was alone. Tristram remained in the store about an hour. She exited the store shortly after noon and walked to her car, which was parked in an angled parking space facing the railroad tracks. As Tristram approached her car, she pressed the electronic device that opens the car door. Tristram was holding a bag of items she had purchased in the store. Her pocketbook was on her left shoulder.

Tristram testified that she felt someone "tugging" on her pocketbook. She turned around and "saw somebody pulling [her] pocketbook off [her] arm." Tristram was face-to-face with the perpetrator. She asked him what he was doing but he did not respond. She said that the perpetrator was "a good looking black man, [with an] athletic build, [and he was] about six feet tall." She thought the man was about twenty-years old.

Tristram tried to hold onto her pocketbook but could not do so. The perpetrator took her pocketbook and walked quickly back to his car, which was about two spaces away from Tristram's car. Tristram tried to catch the man and retrieve her pocketbook. She was angry. She said the perpetrator's car was "dark red[.]"

Tristram stated that the window of the red car was open. Tristram reached into the car. She told the perpetrator that he should give the pocketbook back to her. She testified that she was yelling "robber, thief, whatever [she] could think of[.]" Tristram grabbed the man's clothes and ripped his shirt.

Tristram stated that eventually her pocketbook was returned to her. The money had been taken out of the wallet but the wallet was put back in the purse. Tristram's pocketbook also had contained an envelope with her church offering in it. The money in the envelope had been taken. A pair of eyeglasses also was taken.

Tristram also testified that after the incident, she did not know whether she had been injured but there was blood on her jacket. She said that she had been wearing a ring on her finger and she believed that, when she grabbed the perpetrator's shirt, the ring cut her finger and she "brushed [her] hand" on her jacket. The blood was on "that side of [her] jacket." Tristram added that, when she got home, she observed black and blue marks on both of her arms. She testified that she did not have any cuts or bruises on her body before she went to the parking lot of the department store.

On cross examination, Tristram stated that she did not recognize defendant as the person who took her pocketbook. She said that she did not believe defendant was the person involved. She stated that the perpetrator looked different. Tristram additionally testified that the man did not have hair on his face like defendant. She added that defendant also looked "a little thinner than he did then." She also said that the person who took her purse appeared to be more muscular.

Detective Joseph Costanzo (Costanzo) of the Westfield Police Department (WPD) testified that on April 10, 2006, he responded to the parking lot of the department store in Westfield and took statements from the witnesses. He was given a description of the perpetrator's car and its license plate number. Costanzo said that on April 13, 2006, he received a call from the Edison Police Department (EPD). The Edison police had detained a burgundy Honda, with a license plate number that matched the plate number of the car seen during the April 10, 2006 incident at the parking lot in Westfield.

Costanzo was informed that the Edison police had two individuals in custody, specifically defendant and Bilal Muslim (Muslim). Costanzo went to the EDP. There, he saw defendant who he described as being about six feet in height, with a slender build, dark hair and dark eyes. Costanzo identified defendant in court as the individual who was in custody at the EPD.

Costanzo spoke with defendant and Muslim concerning the incident in the parking lot in Westfield on April 10, 2006. Detective Alan Sciarrillo (Sciarrillo) of the EPD read defendant his Miranda warnings. Defendant said that he understood them and signed the Miranda waiver forms. Defendant agreed to speak with Costanzo about the incident. Detective Lieutenant Frank Burnell (Burnell) from the WPD also was present.

Defendant gave the detectives a formal statement, which was audiotaped. Defendant acknowledged that on April 10, 2006, he was with Muslim in a burgundy Honda. Defendant was driving and Muslim was in the front passenger seat. Muslim told him to pull into the parking lot of the department store and said that they needed "one of those[,]" meaning "[a] bag, a pocketbook [or] a purse."

Defendant got out of the car and grabbed a pocketbook from an older, white lady, who was walking to her car. Defendant said that he "[j]umped" into the car. The lady reached into the window of the car, grabbed defendant's shirt and ripped it. He started the car and drove off. Muslim went through the lady's pocketbook, took the money, and gave defendant some of the money.

The jury found defendant not guilty of robbery, but guilty of third degree theft by unlawful taking, a lesser-included offense. The court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3. On March 17, 2008, defendant was sentenced to a nine-year term of incarceration, with a four-year period of parole ineligibility. The court ordered that the sentence be served consecutively to a sentence defendant was then serving. This appeal followed.

Defendant raises the following issues for our consideration:

I. THE JUDGE'S JURY CHARGES OPERATED TO DEPRIVE DEFENDANT OF A FAIR TRIAL WITH REGARD TO (partially raised below)

A. IDENTIFICATION CHARGE

B. DENIAL OF CROSS-RACIAL IDENTIFICATION CHARGE

C. FAILURE TO PROPERLY CHARGE

1. BOLSTERING [KATHRYN] OLSEN'S TESTIMONY

2. INADEQUATELY CHARGING ON DETECTIVE COSTANZO'[S] INCONSISTENT STATEMENTS

II. DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY THE

A. COURT'S DENIAL OF A MIRANDA HEARING AND RELIANCE ON RES JUDICATA

B. COURT'S FAILURE TO ADJOURN FOR AN EXPERT WITNESS

C. DETECTIVE'S FAILURE TO PROPERLY ADMINISTER MIRANDA WARNINGS

III. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE MATERIAL EVIDENCE FAVORABLE TO THE DEFENSE

A. WAS WITHHELD IN VIOLATION OF BRADY V. MARYLAND

B. WAS NEWLY DISCOVERED AND A MISTRIAL SHOULD HAVE BEEN GRANTED

C. WAS NEWLY DISCOVERED AND THE JUDGE ERRED IN DENIAL OF THE NEW TRIAL MOTION

IV. DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT DURING SUMMATION (not raised below)

V. THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR

VI. THE SENTENCE WAS EXCESSIVE

Defendant has filed a supplemental pro se brief in which he raises the following arguments:

Point I:

THE COURT'S RELIANCE ON THE DOCTRINE OF "res judicata" DEPRIVED THE DEFENDANT OF THE RIGHT TO A FULL MIRANDA HEARING AFFORDED UNDER BOTH THE UNITED STATES CONSTITUTION FIFTH AMENDMENT AND NEW JERSEY'S CONSTITUTION (1947) article 1[,] par[.] 10. BECAUSE WHILE DETAINED AT THE EDISON POLICE DEPARTMENT, THE DETECTIVE FAILED TO PROPERLY ADMINISTER MIRANDA WARNINGS TO THE DEFENDANT, AND THE DEFENDANT WAS INTERROGATED THREE SEPARATE TIMES ON THE SAME SUBJECT MATTER VIOLATING THOSE PROTECTIONS UNDER MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 [L. Ed.] 2d[] 694 (1966)[.]

(a) The [c]ourt's reliance on the "res [j]udicata" doctrine further operated to preclude the defendant from calling [w]itnesses where it was necessary to establish in totality the violations of Miranda, involuntary confession, and coercion.

Point II:

THE SUGGESTIVE IN-COURT IDENTIFICATION OF MARGUERITE TRISTRAM WAS UNRELIABLE AND INCONSISTENT TO THE STATE POLICE ARTIST DRAWING GIVEN BY MS. TRISTRAM AFTER THE INCIDENT, CONTRARY TO STATE v. GINARDI. IT WAS ALSO UNRELIABLE WITH REGARD TO THE PHOTO ARRAY AFFORDED TO THE WITNESS BY THE WESTFIELD POLICE DEPARTMENT.

(a) and (b) Withholding of Identification Evidence contrary to Brady v. Maryland, and State v. Earle, deprived the defendant the right to the due process[,] Confrontation and Compulsory Clauses of both the U.S. Const. VI, XIV Amendments and the State's Const[.] (1947) Art. 1[,] par[.] 10.

II.

Defendant argues that the court's instructions to the jury were erroneous. We disagree.

Defendant first argues that the trial court erred by instructing the jury on identification. Defendant maintains that the court erroneously stated that Costanzo had identified him when he exited the car used in the April 10, 2006 incident. Defendant additionally argues that the court erred by failing to tell the jury that there had never been an identification "connecting him to the offense." Defendant also argues that the court erroneously implied that such an identification had been made.

We note initially that defense counsel requested that the court provide the jury with an instruction on identification. Furthermore, the court specifically instructed the jury that Tristram had never identified defendant as the perpetrator at the time of the offense or in court. In addition, the court corrected its statement regarding Costanzo's identification of defendant and told the jury that Costanzo did not see defendant get out of his car and the first time he saw defendant was at the EPD.

Moreover, in his summation, defense counsel pointed out that no witness had identified defendant as the person who committed the offense. We are therefore satisfied that the court's instructions on identification were not erroneous. However, even if we assume that the court erred in any of its instructions to the jury on identification, any such error was harmless.

Defendant next argues that the court erred by failing to provide the jury with a cross-racial identification pursuant to State v. Cromedy, 158 N.J. 112 (1999). However, the trial court correctly found that the charge was not required in this case. Here, no witness specifically identified defendant as the person who took Tristram's pocketbook on April 10, 2006. Thus, there was no identification of defendant as the perpetrator in this case, let alone a cross-racial identification.

Defendant additionally contends that, when instructing the jury regarding Olsen's testimony, the court improperly bolstered her testimony by endorsing her explanation for the difference between her trial testimony and the statement she gave to the police after the incident. Defendant further contends that the court failed to provide the jury with an instruction regarding Costanzo's inconsistent statements.

We are satisfied that the court's instructions on these issues were not erroneous. The court instructed the jury that it could consider a witness's prior inconsistent statement when assessing the witness's credibility and as substantive evidence. The court emphasized that "the extent to which such inconsistencies or omissions reflect the truth is for you (the jury) to determine."

The court did not endorse the explanation Olsen gave for any difference between her trial testimony and the statement she gave to the police. Furthermore, while the court did not specifically point out any specific inconsistencies between Costanzo's trial testimony and his prior statements, the court told the jury that its instructions regarding prior inconsistent statements applied to "all witnesses who testified."

III.

Next, defendant argues that the trial court erred by refusing to conduct an evidentiary hearing on his suppression motion and by ruling that collateral estoppel precluded him from re-litigating the issue of whether he gave his statement to the police after a knowing and voluntary waiver of his Miranda rights. Again, we disagree.

Here, the record shows that, when the Edison police apprehended defendant, he was found in the burgundy Honda used during the April 10, 2006 incident in Westfield. Defendant had also been implicated in several offenses that had been committed in Middlesex County. Defendant was taken to the EPD, where he was questioned by detectives from the WPD and the EPD. Defendant gave a statement to the detectives.

Defendant was charged in Middlesex County with various offenses including robbery and theft. Defendant moved in the Law Division, Middlesex County, to suppress the statement that he gave to the WPD and EPD detectives. The Law Division conducted an evidentiary hearing, at which defendant, Costanzo and Sciarrillo testified. The court denied defendant's motion to suppress. In this case, the court refused to permit defendant to re-litigate the issues and denied his motion to suppress.

Res judicata precludes "relitigation of claims or issues that have already been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). Moreover, collateral estoppel precludes the "'relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.'" Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007) (quoting Sacharow v. Sacharow, 177 N.J. 62, 76 (2003)).

As the Court explained in Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005), a party is barred from re-litigating an issue when:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[(quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)) (citations omitted).]

Here, the court correctly found that the issue of whether defendant knowingly and voluntarily waived his Miranda rights and gave his statement to the police had been litigated and decided in defendant's Middlesex County case. We are satisfied that defendant was afforded a full and fair opportunity to litigate the issue, including his claim that there was a pause in the audiotape of his confession, which an expert was required to explain. We conclude that the court correctly determined that defendant was barred from re-litigating the issue in this case.

IV.

Defendant also argues that he is entitled to a new trial because the State allegedly withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). This contention is without merit.

To establish a Brady violation, a defendant must demonstrate "'(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material.'" State v. J.J., 397 N.J. Super. 91, 101 (App. Div. 2007) (quoting State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001)). "Evidence is considered material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Ibid. (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

Defendant contends that the State improperly failed to provide him with a composite sketch prepared for the investigation of the April 10, 2006 incident and photos taken of him when he was arrested. At trial, Tristram testified that, after the incident, she provided the police with a description of the perpetrator so that they could create a composite sketch. Defendant's attorney informed the court that the State had not provided the defense with the sketch in discovery. After a brief recess, the State provided defendant's counsel with the sketch and the arrest photographs.

Defendant argued that the State violated Brady by failing to provide the sketch and the photos in discovery. The trial court found that the State's failure to provide this evidence to the defense was not a violation of Brady. In our view, the court's ruling was correct. The evidence was not favorable to the defense. As the court pointed out, defendant's arrest photos depicted a person similar to the individual depicted on the composite sketch. This comparison suggested that Tristram had accurately described the person who grabbed her purse.

Furthermore, the evidence was not material to the outcome of the case. Tristram never identified defendant as the person who grabbed her purse. In addition, defendant was apprehended because he was found driving the burgundy Honda involved in the incident in Westfield, not because of the sketch or the photos. Defendant also provided the police with a statement in which he admitted taking Tristram's pocketbook. We are therefore satisfied that the result of this proceeding would not have been different if the State had provided the defense with the sketch and photos during discovery.

V.

Defendant raises the following additional contentions in challenging his conviction. He argues that: 1) the court should have granted his motion for a mistrial because of the "newly discovered evidence" that the State had improperly withheld; 2) he was deprived of due process and a fair trial because of certain allegedly improper comments made by the assistant prosecutor in his summation; 3) the cumulative effect of the errors he complains of rendered the trial unfair. Defendant raises additional issues in his supplemental pro se brief. In our view, all of these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

VI.

We turn to defendant's contention that his sentence is excessive.

Here, the trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3. The court found the following aggravating factors: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court additionally found that the aggravating factors substantially outweighed the non-existent mitigating factors.

The court imposed an extended term of nine years with a four-year parole disqualifier. The court ordered that the sentence be served consecutively to a twenty-six-year sentence defendant was then serving.

Defendant contends that the court should have found mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant did not cause nor threaten serious harm); and two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). Defendant also says that the court should have found as a non-statutory mitigating factor that he exercised "extreme forbearance" in his response to Tristram's "forceful, albeit defensible, behavior."

Here, the trial court found that defendant's victim "was unusually vulnerable." The court further found that defendant had "created a stressful situation to the woman who tried to prevent him from snatching her pocketbook." However, even if defendant was entitled to mitigating factors one and two, it would not affect the appropriateness of the sentence in this case.

We also find no merit in defendant's contention that he should be credited for exercising "extreme forbearance" in response to Tristram's attempt to retrieve her purse. We do not believe defendant's failure to inflict more harm upon his eighty-two-year-old victim should be considered as a mitigating factor.

Defendant additionally argues that the court abused its sentencing discretion by imposing a consecutive sentence. Again, we disagree. Here, the court considered the relevant factors under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In applying those factors, the court noted that the offenses were committed at different times and in different places, and involved multiple victims. The court also noted that there are no free crimes in a system of justice for which the punishment shall fit the crime. In our judgment, the court did not err by imposing a consecutive sentence.

We are therefore convinced that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

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

Yarbough indicated that there was an overall limit on the accumulation of consecutive sentences for multiple offenses; however, that factor was eliminated by L. 1993, c. 223. The other Yarbough factors remain guides to sentencing discretion. State v. Pennington, 154 N.J. 344, 361-62 (1998).

(continued)

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A-4303-07T4

July 13, 2010