STATE OF NEW JERSEY v. WILLIE DENMARK

 
(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NOT FOR PUBLICATION WITHOUT THE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-4343-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE DENMARK,

Defendant-Appellant.

____________________________

October 14, 2010

 

Submitted September 14, 2010 - Decided

Before Judges Parrillo, Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-03-0326 and 05-03-1767.

Yvonne Smith Segars, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Steven J. Harbace, Assistant Prosecutor, on the brief).

PER CURIAM

 

Tried by a jury, defendant Willie Denmark was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He later pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7, charged in a separate indictment. The weapons offense was merged with the armed robbery, for which defendant was sentenced to a twelve-year term subject to the 85% parole ineligibility bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also received a concurrent four-year term with a two-year period of parole ineligibility on the drug offense. Appropriate fees and penalties were imposed. Defendant appeals, and we affirm.

Defendant's conviction arose out of an armed robbery of Terrence Askew in Jersey City around midnight on October 28, 2004. According to the State's proofs, while walking to a bus stop, Askew saw a group of men walking in front of him and at one point observed two of the men walking behind him, pulling hoods over their heads. Both men then reached for their guns, but he actually observed only one silver handgun held by the shorter of the two men. Askew caught a glimpse of one of the robbers from about the distance of two cars before they ordered Askew to turn around and not look at their faces. The robbers commanded Askew to face the wall and then threatened to pistol whip him if he did not empty his pockets. Askew complied, and the two men took an Orioles jersey (Number 14), beige Timberland boots, and a black North Face jacket from him. He was then ordered to lie on the ground face down, which he did until he heard the men's footsteps at a distance. Prior to their departure, Askew did manage to glance back a second time and, because of their proximity, look directly at their faces.

Immediately after getting up, Askew ran into Jersey City Police Sergeant Harmon, who, from his unmarked police vehicle, radioed for assistance. When Officer Critelli arrived, he observed Askew shaken up, disheveled, wearing a tee-shirt, jeans and shoeless. Askew informed both officers that he was robbed by two men at gun point: one man wearing a hooded sweatshirt and one wearing a black jacket and black skull cap on his head, covering almost to his eyes. He also described the shorter man, later identified as defendant, as a dark-skinned male with a little beard or goatee, about 5'6" or 5'7", and average build. The other male was taller, about 5'11", also of average build, but with medium complexion. Although he could not describe his attackers' hair or eyes because of their head coverings, he did identify the items stolen tan Timberland boots, black puffy coat and a Baltimore Orioles jersey with a number 14. Officer Critelli then broadcast the robbers' descriptions on the radio transmission and to the dispatcher. Thereafter, Detective William Logan, who was also present, went to the robbery scene, where he discovered Askew's wallet and some papers strewn about.

Meanwhile, Officers Broderick and Donnelly received a description of the robbery suspects from someone viewing the closed circuit television (CCTV), an outdoor camera system that monitors a neighborhood in a two block radius. The description was of four black males who were wearing grey hooded sweatshirts and black jackets. A silver handgun had been observed. The men were seen walking northbound on Ocean Avenue and one of the men was holding boots and a black jacket in his hands. When the officers located the group, at the northwest corner of Ocean and Woodlawn Avenues, Donnelly actually observed only three suspects, who then scattered in different directions, after discarding the boots and black jacket. One suspect was never found, and another was immediately apprehended and arrested by Detective Broderick. The remaining suspect fled the scene, running east on Woodlawn Avenue. Officer Donnelly chased him for about a block, but lost him in the backyards.

Donnelly and Detective Logan then proceeded to search the area, but without success. Shortly thereafter, however, Officer Broderick came upon defendant, out of breath and wearing a black Orioles jersey. Broderick recognized defendant as the man Officer Donnelly had been chasing but lost. Upon arriving at the scene, Officer Donnelly also identified defendant as the person he chased and lost.

Defendant and the other apprehended suspect were then taken to the police precinct, where they were positioned by Officer Broderick at the front desk, facing Detective Logan's office. On one side of the door to this office was a one-way mirror that was, in actuality, two-way glass. Askew was behind the door with Detective Logan to view the suspects. According to Logan and Broderick, these were the only two men in the show-up: a taller juvenile wearing a black coat and defendant, the shorter of the two, wearing the Orioles jersey.1 When told by Detective Logan that "we had two possible suspects,"2 Askew identified defendant as one of his two assailants but could not identify the other. The victim recognized defendant because of his forehead, which was prominent and which he noticed during the robbery when he glanced back a second time and observed defendant putting his hoodie on over his skull cap. Askew also noted that the jersey worn by defendant, the black North Face jacket, and beige Timberland boots found at the scene belonged to him.

After defendant was apprehended, police officers searched the entire pursuit area, but no gun was found. However, the next day, within twelve hours or less of the robbery, Officer Broderick heard a general radio broadcast that a gun was subsequently discovered by a homeowner in her driveway on Woodland Avenue. Officer Broderick then called his precinct and informed them that the weapon could be related to an armed robbery occurring the night before. On October 29, 2004, at approximately 8:45 a.m., Officer Currie responded to the dispatch to recover the gun. Upon arrival, the Woodland Avenue homeowner informed Currie that she had found a silver handgun in front of her house, two or three feet from the sidewalk near her driveway and in the grass, and had brought it inside. However, neither the officer nor the homeowner utilized gloves in handling the gun so as to avoid contaminating the object for purposes of fingerprint analysis. Officer Currie determined the gun, which he identified as a Lorcin caliber 380 automatic, was unloaded. He admitted that he had mistakenly indicated on the "Property and Evidence Report" that the serial number on the gun was obliterated.

Crediting the State's version, the jury convicted defendant of armed robbery and possession of a weapon for an unlawful purpose. On appeal, defendant raises the following issues for our review:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EYEWITNESS'S IDENTIFICATION BECAUSE THE LINE UP IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, THEREBY CAUSING A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

 

II. THE COURT ERRED BY ALLOWING THE GUN INTO EVIDENCE AS IT LACKED RELEVANCY AND WAS MORE PREJUDICIAL THAN PROBATIVE.

 

III. THE COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT.

 

IV. THE COURT ERRED BY NOT GRANTING THE DEFENSE'S MOTION FOR A MISTRIAL.

 

V. THE COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A JUDGMENT OF AQUITTAL NOTWITHSTANDING THE VERDICT.

 

VI. THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE MODEL JURY CHARGE ON IDENTIFICATION, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW (NOT RAISED BELOW).

 

VII. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

 

We address these issues in the order raised.

I.

Defendant contends his show-up identification was impermissibly suggestive and irreparably tainted its reliability. He raised the same objection at the Wade3 hearing, at the conclusion of which the trial judge found that even if the identification procedure was suggestive, there was no risk of misidentification under the totality of the circumstances:

Mr. Askew says that he did notice, although he was nervous and afraid, however, he did notice the person with the goatee and he did notice a striking feature which was a forehead and that he did have an opportunity to glance at this individual more, it appears than others. And that one was who he had glanced to see. And also the degree of attention. Although slight he did say that he was aware and because of certain features that's who he was able to identify. And the accuracy of his description that is what the Court has to consider. And also the time between the crime and the confrontation which is around 20 minutes.

. . . .

 

In this case, although the defendant had . . . an Oriole[s] jersey on . . . and the . . . alleged victim in this matter, Mr. Askew, says that that was his jersey. He did give a description as to the height of the individual to the police officer, the complexion he testified to as dark skin and also a goatee. He testified that . . . the other person who was a juvenile who did have a . . . black jacket on, that was he could not positively identify that person [sic]. That person who was the juvenile was released.

The Court finds that Mr. Askew who was the only witness, relied on his recollection of the crime to identify the defendant and that there is, in this case, the Court does not find there was a risk of misidentification. His attention and opportunity to view the defendant at the time of the crime were ample. He said it was just one individual but he says he because he gave a detailed description as to the height and what he saw and the striking mention of his forehead, that is what he had relied on [sic]. So, therefore, even if there was suggestiveness because of the fact that the person had the jersey on, he gave other description to identify [defendant] [sic]. And as a result of his identification of the defendant, the Court finds that it was reliable and should not be suppressed. The defendant's motion hereby is denied.

 

We agree.

Identification evidence will be deemed inadmissible where it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 197, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401, 410 (1972); State v. Cook, 330 N.J. Super. 395, 417 (App. Div.), certif. denied, 165 N.J. 486 (2000). Due process requires suppression of identification evidence in such an instance, Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199, 1204 (1967). "As a result, our courts are obligated to utilize great care in the application of the governing principles in order to prevent an accused from being convicted on the basis of unreliable eyewitness evidence." State v. Henderson, 397 N.J. Super. 398, 416 (App. Div.), certif. granted and denied, 195 N.J. 521 (2008), and remanded by 2 009 N.J. LEXIS 45 (Feb. 26, 2009).

Thus, a reviewing court must first determine whether the identification process was impermissibly suggestive, and if so, must then decide whether the identification was nevertheless reliable under the totality of the circumstances. State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Romero, 191 N.J. 59, 75 (2007)). This involves "'weighing the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Romero, supra, 191 N.J. at 76). Factors to be considered include the "'opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation.'" State v. Madison, 109 N.J. 223, 239-40 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). Where these and any other relevant factors have been considered and a court is convinced that the identification is reliable, the out-of-court identification should be admitted into evidence. Adams, supra, 194 N.J. at 204 (citing State v. Herrera, 187 N.J. 493, 503-04 (2006)). Reliability is clearly the dispositive factor in determining whether the out-of-court identification may properly be introduced at trial. Ibid.

Thus, while one-on-one show-ups are "inherently suggestive" because the victim can only choose from one person and generally that person is in police custody, such a procedure does not necessarily subvert the reliability of the identification. Herrera, supra, 187 N.J. at 504. Indeed, the Court has recognized that in some circumstances, on-or-near-the-scene identifications "'are likely to be accurate, taking place, as they do, before memory has faded[] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Ibid. (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)).

In Herrera, although the defendant was identified while he sat handcuffed in the back of a police vehicle, the Court found that this inherently suggestive identification "did not render the identification procedure per se improper and unconstitutional." Id. at 505 (citing State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003)). Rather, based on the totality of the circumstances, including additional corroborative evidence that enhanced the reliability of the identification, the Court found the procedure did not result in a substantial likelihood of misidentification. Id. at 505-06, 508-09. There, the record revealed that the victim had seen the defendant on a daily basis in the month prior to the incident, had sufficient opportunity to observe the defendant during the attack, quickly identified the defendant, and only five hours passed between the incident and the identification. Id. at 509.

To be sure, the fact that defendant here was shown wearing a jersey identical to that stolen from Askew contributed to the inherently suggestive nature of the show-up. However, as in Herrera, we are satisfied that the identification here was reliable and did not result in a substantial likelihood of misidentification. In particular, the show-up took place shortly after the offense. Askew twice observed defendant during the attack4 and gave a description of his assailants to the police consistent with his later trial testimony. Specifically, Askew described defendant as a dark-skinned male, with a little beard, about 5'6" or 5'7", average build and wearing a black ski cap pulled down around his eyes and a black coat. At trial, Askew explicitly rejected the notion that his identification of defendant was based on the jersey he was wearing.5 Instead, the victim pointed to defendant's distinct forehead as the prominent facial feature that permitted him to identify his attacker. Askew also provided a description of defendant's cohort, who was a male, about 5'11", average build with a medium complexion, wearing a grey hooded sweatshirt.

Moreover, there was additional corroborative evidence that enhanced the reliability of Askew's identification. Defendant was seen in a group of suspects, one of whom was discarding the boots and black jacket taken from the victim. Both Officers Donnelly and Broderick identified defendant as the man Donnelly had been chasing but lost. And when defendant was apprehended shortly thereafter not far from the scene of the crime, he was wearing the black Orioles jersey stolen from Askew. This is strong evidence in support of the reliability of Askew's identification of defendant. Based on the totality of the circumstances, we conclude that the trial court properly admitted Askew's out-of-court identification of defendant.

II.

Defendant next contends the trial court erred in admitting the gun into evidence because "[t]here is no forensic or testimonial evidence linking this gun to the crime" and "[e]ven assuming there is some relevancy [since] it was found on the same street where the police officers chased [the] suspect, it should be excluded from evidence as its probative value [does not] outweigh[] the prejudice to [defendant]." We disagree.

Here, the gun was admitted as demonstrative evidence inasmuch as the victim testified that the silver-colored handgun marked as Exhibit S-1A was "[s]imilar" to that used in the robbery. Moreover, the State stipulated to the lack of forensic evidence linking the weapon to defendant. Indeed, the stipulation entered into between the parties explicitly provided:

It is hereby agreed to and stipulated by the defendant, Willie Denmark, and the State of New Jersey that the fingerprints of the defendant, Willie Denmark, were not found on the weapon or magazine which was inserted inside the weapon recovered and allegedly used in the incident of October 28, 2004.

It is hereby agreed to and stipulated by the defendant, Willie Denmark, and the State of New Jersey that the fingerprints of the defendant, Willie Denmark, were not found on the weapon recovered and allegedly used in the incident.

 

[(emphasis added).]

 

In denying defendant's motion to exclude the gun from evidence, the trial court reasoned:

[T]here . . . will be a stipulation that no fingerprints link to [defendant] and it will be up to the jury to determine the surrounding facts of the case and also that there was no -- nothing else to show the Court that the governmental act as I stated before was objectionable and unreasonable.

 

And regarding the [Rule 403 analysis], the Court is not finding that -- that it would be prejudicial to the defense one because there is the stipulation and that no fingerprints link, that that will be up to the jury to determine whether or not if that would be reasonable doubt. That will be up to the jury on that.

 

We find no abuse of discretion in the court's ruling.

The admissibility of evidence is "committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). "In order for evidence to be presumptively admissible, we require only that the evidence be relevant. Relevance is measured in terms of reasoned probabilities, not hardened certainties, and is properly gauged as 'having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" Brenman v. Demello, 191 N.J. 18, 34 (2007) (quoting N.J.R.E. 401). "Once evidence is deemed relevant, it is admissible, N.J.R.E. 402, unless 'its probative value is substantially outweighed by the risk of [] undue prejudice,' N.J.R.E. 403, or some other bar to its admission is properly interposed. Nothing more is required." Id. at 34-35; see also N.J.R.E. 403.

N.J.R.E. 403 "grants considerable discretion to the trial judge to make such determinations[,]" Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 403 (2010); State v. McDougald, 120 N.J. 523, 577-78 (1990), as it sounds in the permissive, for it literally contemplates the court "may" exclude especially prejudicial proof, or it "may not." In performing the weighing process called for by Rule 403, the trial court's discretion "is a broad one." State v. Sands, 76 N.J. 127, 144 (1978). Only where there has been "a clear error of judgment" should a Rule 403 determination be overturned. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

Furthermore, "[t]here is nothing inherently improper in the use of demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). There, we noted:

In State v. Mayberry, 52 N.J. 413, 435-36 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969), the Court found no error or prejudice in the admission of a gun "very similar" to the murder weapon, which was not recovered. Likewise, in State v. Ford, 79 N.J. 136 (1979), the trial judge was found not to have abused his discretion in admitting a gun similar to the one used in the armed robbery.

 

[Ibid.]

Not only then was the gun properly admitted as demonstrative evidence, but as substantive proof of the commission of the crime as well. The silver-colored handgun was recovered, having been discarded on the front lawn of a residential property, within the area where the defendant fled from officers soon after the armed robbery. Moreover, the weapon was retrieved within hours of the incident. Equally significant, the stipulation entered into by the State and defense counsel, while admitting there was no forensic link to defendant, also expressly previewed the State's theory connecting the recovered weapon to the crime. Having earlier explicitly acknowledged the State's allegation that the recovered weapon was used in the commission of the robbery, defendant cannot now be heard to complain of its prejudicial impact. Cf. New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 340 (2010).

 

III.

Defendant contends that the trial court erred in denying his request for an adjournment at the start of trial when he first received a three-page police report detailing where the gun was found and by whom, and identifying the retrieving police officer. We find no merit in this contention.

Rule 3:13-3(g) provides:

If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

 

[R. 3:13-3(g).]

 

"Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965). "An inadvertent prosecutorial error in withholding discovery will not, if harmless, result in penalty or impugn the validity of the conviction . . . [however, a] willful violation by the prosecutor of his discovery obligations may, however, require reversal of the conviction if defendant is thereby deprived of a fair trial." Pressler, Current N.J. Court Rules, comment 7 on R. 3:13-3 (2010) (internal citations omitted); see Koedatich, supra, 112 N.J. at 319; State v. Blake, 234 N.J. Super. 166, 173 (App. Div. 1989).

Here, the defense was well aware of the State's intention to admit the recovered gun into evidence well in advance of trial. Indeed, at the conclusion of the Wade hearing, the prosecutor stated that he was in possession of the gun and that he wanted to provide defendant's attorney with the opportunity to view the weapon "that was recovered a few addresses down from 17 Woodlawn that was recovered a day after" the robbery as the prosecutor "just wanted to let [defense counsel] be clear that the State will be attempting to use that weapon as evidence." The trial court noted it on the record and defense counsel represented that he had "viewed the weapon" but was waiting for supplemental reports and would "need an opportunity to review those reports and see how they tie everything up together" prior to the plea cut-off date, which the court scheduled for a couple weeks later.

Apparently, there was a later substitution of counsel, who, on the eve of trial when he first received a police report detailing the retrieval of the gun, requested an adjournment to interview the homeowner of 27 Woodlawn Avenue who discovered the weapon, and the police officer who recovered it. In denying the request for an adjournment, the trial court stated:

The Court understands the situation in which [defense counsel], you have a trial and then another one is scheduled. However, this matter stems back from March '05 although you came in on it on February '06. There was a Wade hearing, and the -- that matter was resolved.

 

Then there was as stated before, regarding the gun, fingerprints analysis and there was a request for time for that to be completed . . . on looks like 3/16. And then there was the plea cutoff 4/3/06.

 

So there is no question that there is not a surprise . . . .

 

. . . .

 

While the Court does not feel that an adjournment would be warranted for that due to the fact that at this time there is the

-- will be a stipulation that no fingerprints link to Mr. Denmark and it will be up to the jury to determine the surrounding facts of the case and also that there was no -- nothing else to show the Court that the governmental act as I stated before was objectionable and unreasonable.

 

. . . .

 

So -- and, also, the Court has stated, because this matter had been on, that whoever -- if there is a substitution of attorney that the attorney stands in as -- even though you came in in February, but the matter had been going on, that you stand in the shoes of -- of that attorney.

 

We discern no abuse of discretion in this ruling nor any manifest injustice in the denial of the adjournment request. The existence of the gun was no surprise to the defense. Moreover, by the time of trial, both defendant and the State had stipulated to the lack of defendant's fingerprints on the record. Furthermore, the police officer who recovered the weapon was scheduled to testify as a witness for the State and the trial judge gave defense counsel the opportunity to interview the property owner, who was never called as a witness at trial. Under the circumstances, the court did not abuse its discretion in denying an adjournment and no demonstrated prejudice inured to defendant as a result of this decision.

IV.

Defendant next contends that the trial court erroneously and improperly charged the jury on the weapons charge that the handgun introduced in evidence as S-1A was referred in the indictment as the gun used in the robbery, when in fact, the indictment only mentioned a "silver-colored handgun." This contention is without merit.

When first brought to the court's attention via defense counsel's motion for a mistrial under Rule 3:20-1, the trial judge denied the request, but promptly recharged the jury, providing a curative instruction in the manner suggested by defense counsel that adequately dispelled the notion that S-1A was the gun specifically mentioned in the indictment.

"[W]hether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps," Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2010), is a "determination [that] rests within the sound discretion of the trial court and it should not be disturbed when, as in this case, there is no clear showing that the court abused its discretion or that the defendant suffered actual harm." State v. Labrutto, 114 N.J. 187, 207 (1989); see also State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

By the same token, "when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984). "We hold in high regard the capacity and integrity of juries, and have no doubt that the original jury was capable of following the trial court's curative instruction." Mahoney v. Podolnick, 168 N.J. 202, 222 (2001).

Here, we are satisfied that the curative instruction properly and adequately informed the jury as to the charged offenses and the law applicable thereto. There was no demonstrable harm to defendant, much less any capacity in the claimed error to lead to a verdict that could not otherwise have been justly reached.

V.

Defendant also contends for the first time on appeal that it was plain error to fail to give the identification charge. We disagree.

We start with some well-settled principles of law. Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. "However, a defendant is not entitled to have the jury instructed in his [or her] own words." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999).

In assessing the propriety of the jury charge, this court examines the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). Upon review, the charge must be "examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "If, on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand." State v. Setzer, 268 N.J. Super. 553, 564 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div), certif. denied, 94 N.J. 531 (1983); see State v. Ramseur, 106 N.J. 123, 280 (1987) (internal citations omitted). Generally, except for plain error, under Rule 1:7-2, a defendant waives the right to contest an instruction on appeal "if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). However, because of their importance in the trial proceeding, "'erroneous instructions on material issues are presumed to be reversible error.'" State v. Lopez, 187 N.J. 91, 101 (2006) (quoting State v. Marshall, 173 N.J. 343, 359 (2002)).

Here, defendant did not request any jury instruction on identification, nor object to its omission at trial. Therefore, the court's failure to give this instruction requires reversal only if its omission constituted plain error. See State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005). "The determination of [whether the omission of this instruction constitutes] plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." State v. Cotto, 182 N.J. 316, 326 (2005); see also State v. Salaam, 225 N.J. Super. 66, 70 (App. Div.), certif. denied, 111 N.J. 609 (1988). Independent identification of a perpetrator by multiple witnesses may constitute such corroborative evidence. See Gaines, supra, 377 N.J. Super. at 626; see also Salaam, supra, 225 N.J. Super. at 71-72.

"[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). "When identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." Cotto, supra, 182 N.J. at 325. "In the absence of a request for the charge, we do not presume prejudice but review the charge and the corroborative evidence to determine whether the deficiency was harmless, clearly incapable of producing an unjust result." Gaines, supra, 377 N.J. Super. at 623.

In order to identify any deficiency in the charge given, we consider the purposes of a jury instruction on identification. In State v. Green, [ 86 N.J. 281 (1981),] the Supreme Court identified the following three: highlighting the State's obligation to prove beyond a reasonable doubt that defendant is the perpetrator of the crime; emphasizing that defendant has no obligation to prove that he was elsewhere or to identify the culprit; and guiding the jurors' evaluation of eyewitness testimony. Id. at 293-94.

 

[Id. at 624.]

 

In Green, supra, the Court held that in a case in which eyewitness identification is the key issue, a specific charge must be given that the State has the sole burden to prove beyond a reasonable doubt that it was the defendant who committed the offense and that the failure to give the specific charge constituted plain error. 86 N.J. at 291-92. There, the victim (and only eyewitness) was attacked at night by an assailant who remained behind her while they walked to the spot, without much lighting, where he raped her. Id. at 291. Her initial description of the assailant was of a man five inches shorter and thirty pounds lighter than defendant; it did not refer to defendant's chipped tooth, a detail she provided several months after the assault. Ibid. Based on these circumstances, the Court noted that there was no corroboration or forensic evidence so that the danger of a mistaken identification was "particularly significant." Ibid.

In contrast, in Gaines, the eyewitness identification was corroborated by persuasive forensic evidence. We found that "[w]hile the instruction . . . did not include a separate, explicit reference to the State's obligation to prove that defendant was the culprit," the trial court did not commit plain error as the instruction nevertheless "included repeated, specific references to the State's obligation to prove beyond a reasonable doubt that defendant was the person who killed [the victim]." Gaines, supra, 377 N.J. Super. at 625.

Moreover, "[w]here identification is made essentially immediately after commission of the crime or when identification is not seriously in issue, it is not error to fail to give the specific identification charge." Pressler, Current N.J. Court Rules, comment 8.14 on R. 1:8-7 (2010); see State v. Benthall, 182 N.J. 373, 386 (2005); State v. Mays, 321 N.J. Super. 619 (App. Div.), certif. denied, 162 N.J. 132 (1999); State v. King, 372 N.J. Super. 227, 238-40 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005) (concluding that the omission of an identification charge was not plain error, relying in part on defense counsel's specific stipulation that an identification charge should not be given). In State v. Copling, 326 N.J. Super. 417, 434 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), where the State's proofs were a mixture of identification and circumstantial evidence, we held that "[g]iven the strength and sources of the circumstantial evidence, the issue of identification was not a key issue. Thus, a jury instruction specifically on identification was unwarranted." See also, State v. Williams, 404 N.J. Super. 147, 165-66 (App. Div. 2008)(finding no error in the trial court's failure to give a specific identification charge), certif. denied, 201 N.J. 440 (2010).

Thus, in Salaam, supra, we found that the trial court's failure to include a specific charge on identification did not constitute error, let alone plain error, where the robbery victim "observed defendant in a well-lighted store for a period of approximately five minutes, during which time he was no more than 2 1/2 feet from her as she stood behind the counter[;]" "the description which she gave to [police] was of such accurate detail that [the officers] were able to apprehend a suspect bearing identical physical characteristics less than ten minutes later[,]" and within thirty minutes, she "identified him as the person who committed this robbery without hesitation." 225 N.J. Super. at 69. The victim's "belief that defendant committed the robbery remained constant and unqualified upon cross-examination by the defense" and "the corroborative evidence offered by the State render[ed] the issue of identification far less compelling than it was in Green . . . ." Id. at 70. Thus, in Salaam, the evidence, although circumstantial, was highly corroborative of the victim's account of the crime itself and "greatly reduced the chance that defendant's conviction was the product of mistaken identity." Ibid.

Here too, the identification was made shortly after the commission of the crime under circumstances rendering it reliable. The victim observed defendant at least twice in a well-lit area and specifically recollected his height, build, complexion and distinctive forehead. Moreover, the corroborating evidence, although circumstantial, was substantial. The police gave chase to and apprehended defendant shortly after the crime was reported, in the vicinity of the robbery, where the victim's boots and coat had been discarded, matching the victim's description, and wearing the victim's Orioles jersey. Furthermore, the court's charge clearly instructed that in order to convict, the jury must find beyond a reasonable doubt that it was defendant who committed the crimes charged. Under these circumstances, the failure to give a specific identification charge was not plain error.

VI.

Defendant argues the court erred in denying his motion for an acquittal notwithstanding the verdict. This contention is equally without merit. R. 2:11-3(e)(2).

In deciding a motion for acquittal under Rule 3:18-2, the trial judge must decide

whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt.

 

[State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).]

 

"On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." Id. at 342. A jury may draw inferences from the evidence, which in turn may be circumstantial. State v. Franklin, 52 N.J. 386, 406 (1968).

Here, there was sufficient evidence from which the jury could reasonably infer that defendant robbed the victim based not only on the victim's eyewitness identification, but also, as noted, on the strong corroborating proof including defendant's flight from the scene, his wearing Askew's Orioles jersey when apprehended, and his identification by the pursuing police officers as the man who initially eluded them.

VII.

Lastly, defendant contends his sentence was excessive. We disagree.

In sentencing defendant, the trial judge found aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1(a) (3), (6) and (9), and noted in part:

Number 6, the extent of the defendant's prior criminal record and the seriousness of the offense of which he has been convicted. As stated, he's a young man and he's already of the age of twenty-two has accumulated five felony convictions.

 

T

hese findings are grounded in competent, reasonably credible evidence and support the twelve-year term with a NERA parole disqualifier meted out to defendant, well within the permissible range for a first-degree offense. Suffice it to say, the sentence does not shock the judicial conscience, State v. Roth, 95 N.J. 334, 363-64 (1984), nor does it constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989).

Affirmed.

1 According to Askew, however, he was shown approximately two or six men, all black and of varying heights, who stood behind a one-way mirror and was asked to identify anyone from the robbery. In his pretrial testimony, Askew stated that the officer "had me identify point out which one it was because actually it was two of them." However, on cross-examination, Askew stated: that "Maybe about six. Six people they brought in" for the line-up but that he was unable to describe the six other people.

2 According to Logan, "I advised him I was going to show him two people who may or may not have been involved. I didn't want him to infer anything just because we were showing that they had something to do with it. It's the normal speech I give them, but I wanted him to take a good look. I asked him if he needed anything else, turn sideways, whatever, to let me know, and I also advised him he was looking through two-way glass so they could not see him, because I wanted to make him feel a little more comfortable."

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

4 At the Wade hearing, Askew testified:

Askew: Well, one of them, I looked him [sic] for about -- I didn't like, stare in his face, but I just kept glancing back at him every now and then.

 

Defense Counsel: So, you didn't get a good look at him?

 

Askew: I had a good -- I got a good look at him. That's -- that was my whole purpose of glancing at him.

 

. . . .

 

Askew: . . . . So when I looked back a second time, as they got closer, that's when I noticed, I'm looking and I seen [sic] him . . . putting on his hood. So, now I'm looking trying to see who it was. And as I seen him or whatever, I seen him when he went like this, and that's how I noticed his forehead because when was going [sic] it, he was standing directly under the street light. And I was trying to identify any marks or anything trying to see if I see any marks on his face or anything.

 

5 Askew testified:

Well, when they brought -- well, from what I -- when [I] seen him [sic], he had the jersey but the police had my boots and my coat, and my boots was wrapped up inside of my jacket, and he had the jersey on, but I didn't identify him by the jersey. I identified him by his face, because I seen him -- he was so close to me -- before he told me don't look at me or I'll shoot you, I seen -- I looked at his face.