STATE OF NEW JERSEY v. KEVIN L. ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3586-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN L. ROBINSON,

Defendant-Appellant.

________________________________________________________

April 26, 2011

 

Submitted February 8, 2011 - Decided

 

Before Judges Carchman, Messano and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0731.

 

Yvonne Smith Segars, Public Defender, attorney for respondent (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

 

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kevin L. Robinson appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the first-degree murder of Keenan Sanders, N.J.S.A. 2C:11-3(a)(1), and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). At sentencing, the judge merged the weapons offense into the murder conviction. He sentenced defendant to a fifty-year term of imprisonment, 85% of which was to be served without parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition to the requisite financial penalties, the judge ordered defendant to pay $7,526.80 in restitution to Sanders' parents.

Defendant has raised the following points for our consideration:

POINT I

 

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF FIRST-DEGREE MURDER, THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON THESE CHARGES

 

POINT II

 

THE COURT'S FAILURE TO INSTRUCT THE JURY THAT BEFORE CONSIDERING DEFENDANT'S ALLEGED OUT-OF-COURT STATEMENTS IT MUST FIRST FIND SUCH STATEMENTS TO BE CREDIBLE AND ITS FAILURE TO INSTRUCT THE JURY THAT NON-MEMORIALIZED ORAL STATEMENTS MUST BE REGARDED WITH CAUTION, DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. Amends. VI and XIV; N.J. CONST. (1947) Art. I, paras. 1, 9 and 10

 

 

 

 

POINT III

 

THE READBACK THAT THE COURT PROVIDED IN ANSWER TO THE JURY'S INQUIRY OMITTED PERTINENT SECTIONS OF THE RECORD AND THUS WAS POTENTIALLY MISLEADING TO THE JURY AND PREJUDICIAL TO THE DEFENDANT

 

POINT IV

 

THE RESTITUTION IMPOSED ON DEFENDANT MUST BE VACATED BECAUSE THE COURT GAVE NO REASONS AND FAILED TO CONDUCT A HEARING ON THE DEFENDANT'S ABILITY TO PAY

 

POINT V

 

IN LIGHT OF THE CIRCUMSTANCES SURROUNDING THE OFFENSE, THE AGGRAVATING FACTORS THAT WERE INAPPROPRIATE OR GIVEN TOO MUCH WEIGHT AND THE MITIGATING FACTORS THAT THE TRIAL COURT FAILED TO CONSIDER, THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. THEREFORE, THE SENTENCE SHOULD BE REDUCED OR THE MATTER REMANDED FOR RE-SENTENCING

 

In a pro se supplemental brief, defendant raises the following points:

POINT I

 

TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO STRIKE JUROR FOR CAUSE, WHICH DEPRIVED MR. ROBINSON OF HIS RIGHT TO TRIAL BY AN IMPARTIAL JURY

 

POINT II

 

THE PROSECUTOR ALLOWED THE STATE['S] WITNESS TESTIMONY TO GO UNCORRECTED AND DURING SUMMATION THE PROSECUTOR CAPITALIZED ON THE FALSE TESTIMONY, WHICH REINFORCED THE DECEPTION OF THE TESTIMONY DEPRIVING THE DEFENDANT OF DUE PROCESS

 

POINT III

 

THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DEPRIVED ROBINSON OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL

 

We have considered these arguments in light of the record and applicable legal standards. We affirm, with the exception of that portion of the judgment of conviction ordering defendant to pay restitution. We remand the matter for the limited purpose of conducting a hearing on that issue.

I.

On July 12, 2007, Sanders was driving his mother's van accompanied by his friend and neighbor, Jonathan Cancel. They picked up Sanders' girlfriend, Pamela Robinson, and her cousin Shakyia Sumner. The group traveled to a local "Stop and Shop." The women entered the store while the men waited in the van. After some time, Sanders and Cancel drove away, leaving the women at the supermarket. Robinson phoned Sanders and asked him to return, but he refused. She also told him that the women had left some belongings in the van, and Sanders agreed to drop them off at Sumner's cousin's house. The women began walking there, and, on the way, Robinson called her friend, Oscar Quintana, and asked him to meet them there.

When Robinson and Sumner arrived, Sanders and Cancel were parked in front of the house in the van. Quintana had also arrived and was parked nearby. Robinson went to the van to retrieve her belongings, and an argument ensued between her and Sanders. Sanders pushed her to the ground. Cancel exited the van and pulled Sanders away from the women, who in turn ran to Quintana's car.

Robinson called defendant, her brother, and told him about the fight with Sanders. Quintana received a call from his mother, who told him to pick up his younger brother, Joseph Menjivar. After Quintana picked up Menjivar, Robinson gave him directions, and Quintana picked up defendant. Quintana drove the group to Sanders' home.

Sanders and Cancel were in the front yard talking when Quintana drove by, made a u-turn and parked. Robinson and Sumner exited the car and went across the street to see some people they knew. Quintana and his brother went into a nearby wooded area to urinate. Defendant walked towards Sanders.

The testimony from the various witnesses somewhat diverged as to the events that followed. Cancel testified that defendant said, "Who hit my sister?" and immediately squared off to fight Sanders. As the men struggled physically, Cancel "saw [Sanders] grab for his [own] neck."

Menjivar walked to the front yard and saw the men verbally arguing before both ended up fighting on the ground. Menjivar then "saw [defendant] take out a knife [and] . . . strike [Sanders] right [in the throat area]." He heard defendant say, "This is what you get." Quintana only saw defendant and Sanders fighting. Eventually, defendant ran back towards Quintana's car.

Cancel gave chase while swinging a golf club that struck defendant "a couple of times." This was confirmed by Quintana and Menjivar, who claimed that Cancel hit defendant with the club above the eye. Cancel threw the golf club at Quintana's car as it drove away with defendant, Robinson, Sumner, Menjivar and Quintana inside.

As they left, defendant told Quintana to "drive smooth" so as to avoid attention, and directed Quintana to defendant's aunt's house so that he could clean up. Menjivar testified the following exchange took place in the car:

Q. What did [defendant] say?

 

A. He made me look at the knife and said, "Was it big enough?"

 

Q. Did he show you the knife?

 

A. Yes. He still had it in his hand.

 

. . . .

 

Q. What did that knife look like?

 

A. Kind of like an Army knife. Kind of like it had like zigzags, like the blade was zigzags.

 

Quintana dropped off Robinson and Sumner. At defendant's direction, Quintana picked up defendant's two friends. Quintana heard defendant tell them that he had just stabbed someone.

Meanwhile, Cancel tried to assist Sanders who was bleeding heavily as he lay near the front steps of his home. Cancel yelled for help, and Sanders' parents came out of the house. Although officers from the Franklin Township Police Department arrived within minutes, their attempts to render first aid were unsuccessful. Sanders died at the scene. A subsequent autopsy revealed that the cause of death was a stab wound which severed both the internal jugular vein and the left common carotid artery.

Defendant testified in his own behalf. He claimed that he approached Sanders and Cancel and asked, "Who is Keenan?" Defendant was not armed. As the parties exchanged words, both Sanders and Cancel assaulted him. Defendant was cut above his eye, and, although he never saw a weapon, believed one of the two men had a knife. The three men wrestled with each other before defendant managed to "get loose" and run to Quintana's car. Cancel ran after him and tried to hit him with a golf club, which defendant was able to grab and throw into some nearby bushes. Sumner confirmed that defendant disarmed Cancel and threw the golf club away.

Defendant never saw Sanders get stabbed, and he denied ever having a knife or showing one to Menjivar. He testified that he told Quintana to "[c]alm down and drive regular" because he "didn't want to get in no accident," and because defendant had an outstanding "warrant for car tickets." At his aunt's house, defendant cleaned up because he was bleeding badly; his aunt took photos of the cut above his eye which were introduced in evidence. Defendant denied that Quintana picked up any of his friends, instead claiming that Quintana dropped him off at the house of a woman that defendant knew.

II.

Defendant contends that the judge erred by denying his motion for acquittal made at the end of the State's case. He argues that there was insufficient proof that he possessed a knife and that he acted with the requisite intent to sustain the murder conviction.

When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454, 459 (1967):

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[(citation omitted).]

 

We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 534, 549 (2004).

Menjivar testified that he saw defendant stab Sanders as he said, "This is what you get." After the stabbing, defendant showed Menjivar the knife and asked, "Was it big enough?" In the car, defendant told his sister, "Stop crying. It's going to be all right. I handled it." While in Quintana's car, defendant told his friends that he had stabbed someone. Applying the Reyes standard, there was sufficient evidence for the jury to have found defendant guilty of both charges beyond a reasonable doubt.

Next, defendant contends that the judge committed plain error by failing to sua sponte provide the jury with proper instructions regarding the statements he allegedly made to Menjivar and Quintana. While we agree the charge should have been given, we conclude the failure to do so was not plain error.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.

A trial court should provide a "Hampton" charge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not." Jordan, supra, 147 N.J.at 425 (referencing State v. Hampton, 61 N.J. 250, 272 (1972)). A jury "shall be instructed that they should decide whether . . . the defendant's [statement] is true," and if they conclude that it is "not true, then they must . . . disregard it for purposes of discharging their function as fact finders." Hampton, supra, 61 N.J.at 272; see alsoN.J.R.E.104(c) ("If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible.").

When a witness at trial testifies regarding oral statements made by a defendant, our Supreme Court has held that the trial judge should provide the jury with an instruction that it "should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." State v. Kociolek, 23 N.J. 400, 421 (1957) (internal quotation marks omitted). "[T]he Kociolek charge should be given whether requested or not." Jordan, supra, 147 N.J. at 428. "However, failure to give the charge is not reversible error per se." Ibid. "There may be a rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error . . . . Ultimately, whether the failure to give a Kociolek charge is capable of producing an unjust result will depend on the facts of each case." Ibid.

Here, the statements allegedly made by defendant to Menjivar and Quintana were undoubtedly important to the State's case. However, Menjivar's testimony that he saw defendant stab Sanders and that defendant displayed the knife later in the car was far more significant than any remark regarding the size of the knife. Importantly, defense counsel vigorously cross-examined both witnesses regarding the statements allegedly made by defendant, clearly suggesting that the jury carefully examine their credibility. See State v. Feaster, 156 N.J. 1, 73 (1998) (finding no plain error in failing to give the charge where "[d]efense counsel explored at length the criminal records of certain witnesses, their attempts to curry favor with the State and their motivation to lie, and the reliability of their perception"). Additionally, the judge gave a comprehensive charge regarding "credibility" in general. See ibid. In short, we are confident that the jury understood the need to assess the credibility of the witnesses' testimony regarding defendant's alleged statements, and the failure to provide the instruction does not "'raise a reasonable doubt'" that the jury was led "'to a result it otherwise might not have reached.'" State v. Barden, 195 N.J. 375, 394 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Defendant's next argument concerns the read back of certain testimony. After retiring to deliberate, the jury sent out a note asking to hear some of Quintana's and Menjivar's testimony. The following colloquy took place:

Judge: Okay. We're back on the record, and counsel and the [c]ourt [r]eporter have had the opportunity to discuss the transcript and the questions that were posed by the jury. And I gather from comments I'm hearing that both counsel have had the opportunity to review what was prepared by the [c]ourt [r]eporter and everybody's agreeable.

 

Defense counsel: That's correct, your Honor. During the luncheon hour and thereafter, counsel and I jointly met with the [c]ourt [r]eporter using draft transcripts. We've gone over it. We've reached agreement as to all the -- what we believe to be all the relevant sections that the jury is asking for.

 

The Court reporter then read the agreed upon testimony.

Defendant contends "[t]he readback . . . did not give a full view of the issues in question." However, "[a] 'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). There was no error in this regard.

We turn to the arguments raised in defendant's pro se submission. Defendant contends that the judge abused his discretion by failing to sua sponte excuse five jurors for cause. The State argues that the judge did not abuse his discretion, and, since defendant failed to exercise all of his peremptory challenges, he is not entitled to a new trial based on this claim.

"Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and its exercise of discretion will ordinarily not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (2000) (quotations omitted). This is so because "[d]ecisions concerning the potential bias of prospective jurors are primarily subjective in nature." State v. Singletary, 80 N.J. 55, 63 (1979). In particular, "rulings on . . . challenges for cause . . . are highly discretionary." State v. Biegenwald, 106 N.J. 13, 37 (1987). Additionally, "[a] criminal defendant is not entitled to a new trial when he is forced to exercise a peremptory challenge to excuse a juror who should have been excused for cause if all peremptories have not been exercised." State v. Wilson, 266 N.J. Super. 681, 685 (App. Div. 1993) (citing State v. Bey, 112 N.J. 123, 154 (1988)).

In this case, defendant exercised only four of the twenty peremptory challenges available. Moreover, the judge did not abuse his discretion in failing to sua sponte excuse the five jurors for cause. All five of the now-challenged jurors indicated that they would be impartial and fair. "[A] juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.) (citing Singletary, supra, 80 N.J. at 62-63), certif. denied, 130 N.J. 18 (1992). There was no error in this regard.

Defendant's final two arguments regarding the trial lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following. Defendant contends that the prosecutor committed reversible error during his summation. "To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Harris, 181 N.J. 391, 495 (2004) (alteration in original) (internal quotation marks omitted), cert. denied sub nom., Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). There was no objection at the time so we review the claim under the plain error standard. R. 2:10-2. Our review of the specific comments that defendant claims warrant reversal reveals they were not improper. Based on all of the above, it is also clear that defendant's final argument -- that the accumulation of errors requires reversal -- is without merit.

 

 

III.

We turn to the issues regarding defendant's sentence. Defendant argues that his sentence was grossly excessive and an abuse of discretion because the trial judge placed too much weight on three aggravating factors, failed to consider mitigating factors and ignored the circumstances of the case. He also contends that the judge erred by failing to state his reasons for imposing restitution, and by failing to provide defendant with a hearing pursuant to N.J.S.A. 2C:44-2(b).

In imposing sentence, the judge noted defendant's prior criminal history, which included several arrests and delinquency adjudications as a juvenile, and convictions as an adult for an indictable offense -- endangering the welfare of a child -- and a disorderly persons offense. The judge further noted that the murder took place while defendant was on probation. He determined that aggravating factors three, six and nine applied. See N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit another offense); (a)(6) (the extent and seriousness of defendant's prior criminal record); and (a)(9) (the need for deterrence). The judge found that no mitigating factors applied, concluding that defendant had "taken another person's life, because of a spat between a boyfriend and a girlfriend. Really no reason at all."

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296-97 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). As the Court recently noted, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

In this case, the judge's decision regarding the applicable aggravating factors was amply supported by the record. Defendant contends that the judge should have found mitigating factors, including N.J.S.A. 2C:44-1(b)(3) (that he "acted under a strong provocation"); (b)(5) (that Sanders "induced or facilitated" the crime); and (b)(8) (that his "conduct was the result of circumstances unlikely to recur"). Regarding the first two mitigating factors, it is clear that the jury rejected any facts that supported such findings. Defendant's persistent involvement with the criminal justice system, including the fact that he was on probation when this murder was committed, negates any support for the third. In short, we see no reason to overturn defendant's sentence.

However, we remand the issue of restitution to the trial judge for further proceedings. At the conclusion of the sentencing hearing, the judge simply told defendant, "You'll pay $7,526.80 in restitution." He provided no further explanation. "[A] person convicted of murder . . . shall be required to pay restitution to the nearest surviving relative of the victim." N.J.S.A. 2C:11-3c. The "amount and duration" are to be determined pursuant to N.J.S.A. 2C:43-3. Ibid. However, "[N.J.S.A. 2C:43-3] merely provides maxima for fines and restitutions. Section 2C:44-2 provides criteria for imposition." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-3 (2010).

N.J.S.A. 2C:44-2(b) provides that "[t]he court shall sentence a defendant to pay restitution . . . if: . . . (2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution." Further, "[i]n determining the amount and method of payment of restitution, the court shall take into account . . . the defendant's ability to pay." N.J.S.A. 2C:44-2(c)(2). The Court has held that "the amount of restitutional payments must be realistically limited" to "medical expenses and related costs, funeral expenses, specific personal property losses, and other less common losses," but not "the valuation of life . . . ." In re Application of Trantino, 89 N.J. 347, 361-62 (1982).

We note that the pre-sentence investigation report indicated that the Violent Crimes Compensation Board had paid the victim's family $5000 towards funeral expenses and requested the judge order restitution in this amount. As noted, the judge provided no explanation as to why a greater amount was warranted, nor did he consider the "method" of payment or "defendant's ability to pay."

In sum, we affirm defendant's conviction and sentence in all respects except as to the restitution ordered by the trial judge. We vacate that portion of the judgment of conviction requiring defendant to pay restitution in the amount of $7,526.80. The matter is remanded for the limited purpose of conducting a hearing pursuant to N.J.S.A. 2C:44-2(b) and (c). We do not retain jurisdiction.