STATE OF NEW JERSEY v. QUEVIL AUSTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4586-06T44586-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUEVIL AUSTIN,

Defendant-Appellant.

_________________________________________________

 

Submitted December 16, 2009 - Decided

Before Judges Cuff and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

05-05-0639.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Raquel Y. Bristol,

Assistant Deputy Public Defender, of

counsel and on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Mary E. McAnally, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant, Quevil Austin, appeals from his conviction for the lesser-included disorderly persons offense of simple assault on Passaic Police Detective Juan Clavijo, N.J.S.A. 2C:12-1a(1); the lesser-included offense of third-degree aggravated assault on Officer Andrew Harmel, N.J.S.A. 2C:12-1b(7); third-degree aggravated assault on Officer Rafael Ortiz, N.J.S.A. 2C:12-1b(5)(a); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2); and resisting arrest by use of physical force against a police officer, N.J.S.A. 2C:29-2a(3). He appeals as well from the imposition of a discretionary extended term sentence of six years, subject to a three-year period of parole ineligibility for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and a consecutive six-month sentence, for the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1).

On appeal, defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL, AND MADE SEVERAL ERRORS IN INSTRUCTING THE JURY. THE CUMULATIVE EFFECT WAS A COMPROMISE VERDICT THAT DENIED DEFENDANT THE RIGHTS OF DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1 1, 10.

A. An Accomplice Liability Charge Was Inapplicable.

B. The Court Erroneously Tailored The Accomplice Liability Charge And Gave An Inadequate Curative Instruction.

C. The Court Erred In Denying Defendant's Motion for Acquittal.

D. The Erroneous Charge Resulted In The Jury Reaching A Compromise Verdict As Noted In Christener And Wilder That Constituted A Violation Of Defendant's Rights To Due Process And A Fair Trial.

POINT II

THE COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL BECAUSE THE ADMISSION OF TESTIMONY REGARDING THE CO-DEFENDANT/ OTHER UNDERCOVER OFFICER CONFRONTATION WAS IRRELEVANT, UNDULY PREJUDICIAL, CONFUSING OR MISLEADING IN VIOLATION OF EITHER N.J.R.E. 401 OR N.J.R.E. 403a.

POINT III

THE PROSECUTOR'S MISCONDUCT IN CROSS-EXAMINATION OF THE DEFENDANT AND IN SUMMATION SHIFTED THE BURDEN OF PROOF AND CONTRADICTED CLAWANS PRINCIPLES. INDIVIDUALLY AND CUMULATIVELY, THESE CONSTITUTE VIOLATIONS OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. Const. Amend. V, VI, XIV; N.J. Const. Art. I, 1, 9, 10.

POINT IV

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1, 1, 10.

POINT V

THE DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO FIND APPLICABLE MITIGATING FACTORS, AND IMPOSED BOTH A CONSECUTIVE AND AN EXTENDED TERM.

We affirm.

I.

The record discloses that, on February 10, 2005, Officers Harmel and Doreen Mullarkey, posing as junkies, sought to purchase crack cocaine from defendant for ten dollars. Defendant, in turn, sought to lure the two into a nearby building to complete the transaction. Defendant was unsuccessful, and he subsequently exited the building with a man named Bequa Brown and another unidentified male. After a brief conversation, defendant snatched a ten dollar bill from Harmel's fist while hitting him on the left side of the jaw, causing him to fall to the ground. Brown then assaulted Mullarkey, pushing her to the ground and removing money from her pockets.

Thereafter, defendant and Brown walked away quickly, while laughing, but were soon met by arrest teams called to the scene by Clavijo, who had been overseeing the undercover buy from an unmarked car. The team members wore vests that identified themselves as police. Brown was apprehended, but defendant ran. Eventually, Clavijo found defendant crouching in a fetal position on a metal awning. Clavijo identified himself as a police officer, directed defendant to surrender, and when he did not, Clavijo pulled him down by the leg, engaging him thereafter in a scuffle. Clavijo was assisted in trying to arrest defendant by Ortiz, who likewise scuffled with defendant. Following the arrival of additional backup, defendant was eventually arrested and handcuffed. Clavijo and Harmel sustained injuries as the result of defendant's assaults. Defendant spent three days in the hospital with injuries to his head that required multiple stitches.

At trial, defendant testified on his own behalf. He stated that he had spent the day with his aunt in the building from which he exited, and that his aunt expressed displeasure as to the drug dealing within and in front of her building. Defendant denied knowledge of Brown, but admitted to hitting Harmel, stating he did so out of anger at junkies and because he believed Harmel made a threatening gesture toward him.

Defendant was indicted for third-degree assault on a police officer, Juan Clavijo, N.J.S.A. 2C:12-1b(5)(a) (Count One); second-degree robbery of Andrew Harmel, N.J.S.A. 2C:15-1a(1) (Count Two); third-degree assault on a police officer, Rafael Ortiz, N.J.S.A. 2C:12-1b(5)(a) (Count Three); second-degree robbery of Doreen Mullarkey, N.J.S.A. 2C:15-1a(1) (Count Four); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2) (Count Five); and third-degree resisting arrest by physical force or violence against law enforcement officers, N.J.S.A. 2C:29-2a(3). Count Four was dismissed prior to trial. As previously stated, following trial, the jury found defendant guilty, on Count One, of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a(1), and, on Count Two, of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). He was found guilty as charged on the remaining counts.

II.

On appeal, defendant first claims that the trial court erred in denying his motion for an acquittal on the robbery charge contained in count two of the indictment. However, defendant did not seek acquittal on that count, and moreover, he was not found guilty of robbery, but instead was found guilty of the lesser-included charge of aggravated assault on Harmel. Thus, no error has been demonstrated.

Defendant also argues that the trial judge erred in instructing the jury that it could find defendant guilty of accomplice liability on the robbery count and on its lesser-included offenses of aggravated and simple assault. The charge was given with respect to the allegations of robbery as the result of uncertainty as to who had snatched the money from Harmel. Although the jury was initially instructed that it could find defendant guilty as an accomplice for aggravated and simple assault on Harmel, at the conclusion of the charge, the prosecutor objected, noting that there was no evidence presented that Brown had assaulted Harmel, whereas defendant had admitted to the assault. The judge agreed, and on the following day, before deliberations commenced, he re-instructed the jury as follows:

[B]efore I complete the instructions, I just want to clarify something that perhaps may not have been as clear as it should have been initially.

You'll recall that the defendant is charged in this indictment with the count of second degree robbery, that is he is accused of committing a second degree robbery on Andrew Harmel, the undercover police officer, on February 10th. And as I explained to you, he is charged in the indictment as acting as a principal that is that he is the person who committed the offense against the individual, Andrew Harmel.

I also indicated to you that based upon the evidence in the case, that you could consider whether he was also guilty as an accomplice. And I [read] to you the accomplice liability charge. And I believe I may have indicated to you that you should consider the included offenses of aggravated assault and simple assault, as they arise out of the count dealing with robbery.

Just to be clear. You may consider the defendant's liability for a second degree robbery in this case, based upon his conduct as a principal, as it is charged in the indictment, and as I read to you in the instructions earlier. And you may also consider whether he was an accomplice with respect to that charge, that is second degree robbery.

You may also consider, if you find him not guilty of robbery in the second degree, either as a principal or as an accomplice, whether he has any liability if the State has proven beyond a reasonable doubt that he committed an aggravated assault, significant bodily injury, or simple assault, as lesser included offenses. Those particular offenses he would be considered only as a principal and not as an accomplice.

We are satisfied that, as the result of uncertainty as to who took the ten dollars from Harmel, and as the result of defendant's admission that he had hit the officer, an instruction to the jury that it could find defendant guilty either as a principal or as an accomplice to second-degree robbery was proper. State v. Roach, 146 N.J. 208, 223 ("When a defendant may be found guilty either as a principal actor or as an accomplice, the jury should be instructed about both possibilities."), cert. denied sub nom., Roach v. New Jersey, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Further, we are satisfied that the judge's elimination of accomplice liability from his instruction on the lesser-included offenses of aggravated and simple assault adequately addressed any error that might have existed in the initial charge on those matters. State v. Smith, 21 N.J. 326, 334 (1956) (approving procedure utilized).

Defendant additionally complains that the trial judge erred in permitting too much testimony regarding the interaction between Brown and Mullarkey, which had no bearing on defendant's criminal liability. The testimony, he claims, should have been excluded as lacking relevance pursuant to N.J.R.E. 401 or as unduly prejudicial, confusing, or misleading pursuant to N.J.R.E. 403. However, we find no abuse of discretion in the admission of this evidence. Mullarkey and Harmel acted together as a team. The attack upon Mullarkey occurred simultaneously with that upon Harmel; Clavijo viewed both attacks from his surveillance location; and Clavijo's summoning of arrest teams resulted from witnessing both assaults. Thus, the limited introduction of evidence regarding Mullarkey and Brown that occurred was necessary to acquaint the jury fully with what had taken place and the reasons for police action. A misleading and potentially confusing view of events would have been presented if the involvement of Mullarkey and Brown had been excised.

Defendant also argues that the trial court overcharged the jury by including instructions with respect to robbery because the record was insufficient to support that charge. We disagree. Testimony was presented by Harmel that, when defendant left the building, Harmel asked him if he had the "shit." Defendant responded by asking if Harmel had the money. When Harmel displayed it in his hand, defendant punched him in the jaw, knocking him backward, at which point the money was snatched from Harmel's hand. Thus, evidence, viewed in a light most favorable to the State, State v. Reyes, 50 N.J. 454, 459 (1967), supported the elements of robbery. State v. Lopez, 187 N.J. 91, 98 (2006). Inconsistencies in police testimony and evidence regarding the source of the money may have undercut the credibility of the testimony provided. However, the evidence was sufficient to establish that money was supplied to Harmel, he held the money in his hand during the confrontation with defendant, defendant demanded the money, and either he or Brown obtained the money by use of force.

Because we do not view the charge given by the trial judge, as amended, to have constituted an overcharge, we do not find that an unjust result took place. R. 2:10-2; State v. Wilder, 193 N.J. 398, 418 (2008). We note that, in Wilder, the Supreme Court rejected the principles that it had set forth in State v. Christener, 71 N.J. 55, 71 (1976), upon which defendant in part relies. See Wilder, supra, 193 N.J. at 413-18.

III.

Defendant further argues that the court erred in denying his motion for a mistrial as the result of the admission of Detective Clavijo's rebuttal testimony. We again disagree. In defendant's testimony on his own behalf, defendant stated that he walked, alone, out of his aunt's building, encountering Harmel, an apparent junkie, who repeatedly and insistently asked defendant for drugs, and at one point made an attacking gesture that defendant countered by striking him. Although defendant admitted that a female junkie was also present, defendant professed no knowledge of an assault on her, testifying merely that the woman had dropped to her knees, apparently to aid Harmel. Defendant denied witnessing anyone going through the woman's pockets. Further, defendant denied knowing Brown, and he denied walking away with him after the assaults had taken place. Defendant claimed that he did not know that any other person was present until he reviewed the discovery in the case.

At the conclusion of defendant's testimony, the State sought to call Clavijo as a rebuttal witness. Over defense counsel's objection, the judge permitted the testimony, observing:

Well, your client [defendant] did just testify that he saw Mullarkey after Harmel was knocked he said against the building. That she went down to her knees apparently in an effort to sounds like it was in an effort to aid Harmel.

Now, because I tried the first case [Bequa Brown], I know that that's not what the State's version was in terms of what happened to Mullarkey. But my recollection is that she was pushed to the ground by the other individual and then was robbed of the money that she had on her person at that time. Isn't that a question now of if your client has disavowed any knowledge of Bequa Brown. His testimony would have indicated and the jury could certainly infer that from his direct testimony that he was the only one there other than the other individual who went into the building. It was only on cross-examination that it had become apparent that there was another person there, and he says now that he became aware of that only through discovery. Well, shouldn't the prosecutor be able to elucidate that? She had elected not to produce substantial evidence on that particular point in the first place. But now isn't that really relevant?

Following further defense argument that the testimony was not relevant, the judge ruled:

Well, because now it's part of the res [gestae]. And your client's credibility, of course, is being challenged in respect of what he said happened. The State isn't in a position, can't be put in a position where they can't respond. Your client has a version of events and they can't respond to it because they made a decision [not to charge defendant with robbery of Mullarkey].

In rebuttal testimony, Clavijo testified that defendant and Brown exited the building almost simultaneously. Defendant stood before Harmel; Brown stood before Mullarkey, with defendant and Brown standing "essentially side-by-side." Then, while defendant struck Harmel, Brown grabbed Mullarkey, forced her to the ground, and went through her pockets. Only two or three seconds intervened between the two assaults. Thereafter, defendant and Brown began walking toward Fourth Street at the same time, walking two steps away from each other. At the time, Clavijo heard the two men laughing out loud.

At the conclusion of the rebuttal testimony, defense counsel moved for a mistrial, arguing that, through rebuttal, the entire episode involving Mullarkey had been presented to the jury much for the second time. Thus, the testimony did not constitute proper rebuttal. The judge denied the motion, noting the difficulty of confining rebuttal testimony of this nature to matters that had not previously been presented to the jury, particularly when events were intertwined and unfolded in such a short period of time. The judge ruled:

I'm going to deny the mistrial for a number of reasons. One, although the State elected not to move count four, which charged the offense regarding Officer Mullarkey, and would have charged the defendant as an accomplice with respect to that particular crime, the events, as I indicated, are really part and parcel of a single episode. And even though an uncharged or not moved count of the indictment is [al]luded to during the course of the trial, it is clearly part of what we would call the [res gestae], the totality of the circumstances that surrounded the incident. And it would be appropriate and I think indeed it is highly appropriate for the jury to have a complete and full understanding of all the circumstances surrounding the actors in this case at least from the State's perspective, and not to limit them simply because they chose not to move the count on the robbery of Mullarkey.

"[A] trial court has wide discretion in granting a mistrial." State v. Loyal, 164 N.J. 418, 436 (2000). Additionally,

[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting effective evidence so as to make the interrogation and presentation effective for the ascertainment of the truth.

[N.J.R.E. 611(a)(1).]

In the present case, Clavijo's rebuttal testimony served to impeach defendant's version of events and to undermine defendant's position that the attack on Harmel was nothing more than a reaction to the aggressive actions of a junkie insistent on obtaining drugs from an unlikely source. It suggested a concerted plan by defendant and Brown to rob the two junkies before them of their drug money, and the men's evident satisfaction in the momentary success of their endeavor. We thus find Clavijo's rebuttal testimony to have been properly admitted.

IV.

In a final argument directed to his conviction, defendant argues, for the first time, that the prosecutor improperly shifted the burden of proof to him by asking on cross-examination whether defendant's aunt knew he was on trial and whether he knew how to contact her and by stating in closing: "Well, he has an aunt that he didn't think it was important for us to be able to get in touch with today, which is the whole reason he's mad at these junkies."

A review of the record demonstrates that, in her opening argument, defense counsel stated that defendant "was sick and tired of individuals buying and selling drugs in his neighborhood," and that his attack on Harmel, whom he perceived to be a junkie loitering near the apartment building in which his aunt lived a building containing law-abiding citizens was precipitated by that concern. At trial, defendant testified on direct examination that on February 10, he had been visiting his aunt's apartment in Building 152 for most of the day, and while there, the aunt had stated that she disapproved of the drug dealing occurring in the halls of her apartment building and immediately outside of it and that she had on occasion "run out" the junkies. As defendant left the building, he encountered two such junkies insistently seeking drugs that defendant allegedly did not possess. According to defendant, he then understood what his aunt was dealing with. Angry at the junkie's importuning and alarmed by his threatening gesture, defendant hit the junkie, who he later found out was Officer Harmel.

On cross-examination, the prosecutor sought information regarding the aunt so that the prosecutor could get in touch with her if she chose, including where she worked and what her telephone number was questions that defendant was unable to answer. The prosecutor then asked whether the aunt knew defendant was on trial that day, and defendant responded that he did not know. The prosecutor continued: "So you're so close to this aunt that you spent the whole day with her and you don't know if she knows that you're on trial for a beating that you took moments after you left her house after spending the whole day with her?" Defendant responded: "Right." Although defendant testified that he hit Harmel, in part, as the result of defendant's conversation with his aunt regarding junkies, it was established that the aunt had no knowledge of what occurred on the street. According to defendant, she would have nothing to add to the case if called as a witness.

A final reference to the aunt occurred in the prosecutor's closing argument, when she observed: "Well, he has an aunt that he didn't think it was important for us to be able to get in touch with today, which is the whole reason he's mad at these junkies." Significantly, the prosecutor's comment again suggested that defendant had foreclosed the State from calling the aunt as a witness, not that he had any burden to call her.

As the trial judge noted in colloquy, because defendant did not assert an alibi defense, the aunt's testimony was of no relevance in that regard. Additionally, it was established that the aunt had no knowledge of the alleged assaults perpetrated by defendant and Brown or of the events leading to their arrest. Nor did she have any knowledge of defendant's intent in admittedly striking Harmel. If called as a witness, she could only have corroborated or failed to corroborate defendant's statement that she was distressed by drug dealing in and around her apartment building and communicated her concerns to defendant on the day that he attacked Harmel. Indeed, the State did not suggest otherwise.

In the circumstances presented, we do not find the burden of proof to have been impermissibly shifted to defendant particularly when the State did not suggest an obligation on defendant's part to call the aunt and no inference was raised by the prosecutor or by the judge in instructions to the jury that the aunt, if called as a witness by him, would have declined to corroborate the substance of her conversation with defendant regarding the undesirable presence of junkies. See State v. Clawans, 38 N.J. 162, 170-75 (1962). Indeed, we find no basis for concluding that defendant suffered prejudice as the result of this particular line of questioning which, when reduced to its essence, was tangential to issues of defendant's guilt. As a result, we decline to find that plain error occurred.

Cumulative error, likewise, has not been demonstrated.

V.

As a final matter, defendant challenges the imposition of a discretionary extended sentence on him pursuant to N.J.S.A. 2C:44-3a and the imposition of a consecutive term for the simple assault on Detective Clavijo. In challenging the extended term, defendant does not argue that the requisite predicate offenses were lacking. Rather, he claims that the trial judge failed to follow the procedures established in State v. Pierce, 188 N.J. 155, 170 (2006) because the judge determined that "the interest of society's protection demand[ed] the imposition of [an extended term] on this defendant," whereas evidence demonstrated that defendant was no threat to the public. However, defendant's argument requires the judge's acceptance of his claim that "he believed that he was being pursued by those who were threatening his life, and he was not aware that his pursuers were police officers." The jury found otherwise, at least in connection with the assault on Ortiz and in connection with resisting arrest by use of force against a police officer. The record reflects that defendant was engaged in physical assaults upon multiple persons, and that he resisted arrest by every means available to him, including flight and violence. Thus, his threat to the public was amply demonstrated.

Defendant argues additionally that the six-month term for simple assault on Harmel was erroneous. We disagree. That assault was distinct in time and circumstance from the assaults occurring in connection with defendant's flight and capture. Although the assaults occurred sequentially, if defendant, like Brown, had initially heeded the police, the later actions would never have occurred. Thus, we find the events to have been separate, and the conditions set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) for consecutive sentencing to have been met.

As a final matter, we find no merit in defendant's argument that the judge should have found mitigating factors (1) that the defendant's conduct did not cause serious harm and (2) that he did not contemplate serious harm. N.J.S.A. 2C:44-1b(1) and (2). Such factors are inapplicable in cases in which assaultive conduct such as occurred here took place.

Affirmed.

 

The judgment of conviction erroneously lists this offense as a third-degree crime pursuant to N.J.S.A. 2C:12-1b(5)(a), but correctly states the sentence as six months.

The judgment of conviction erroneously lists the crime as a second-degree offense and gives the statutory citation as N.J.S.A. 2C:15-1(a)(1).

(continued)

(continued)

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A-4586-06T4

April 23, 2010