STATE OF NEW JERSEY v. JAMES L. CALHOUN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4901-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES L. CALHOUN,

Defendant-Appellant.

_______________________________

July 29, 2011

Submitted February 16, 2011 - Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-05-0707.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant James Calhoun appeals from a November 14, 2008 final judgment of conviction entered following a jury trial on charges of kidnapping, robbery, carjacking, and aggravated sexual assault. He also challenges, as excessive, his aggregate thirty-year sentence, subject to the eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant argues:

POINT I

THE COURT DID NOT PROPERLY ADDRESS THE JURY FOREPERSON'S OBJECTION THAT WAS VOICED WHEN THE COURT RESPONDED TO A REPORTED DEADLOCK IN DELIBERATIONS BY GIVING THE INSTRUCTION FROM STATE V. CZACHOR WHICH URGES FURTHER JURY DELIBERATIONS; HENCE, WHILE INITIALLY GIVING THE CZACHOR INSTRUCTION MAY NOT HAVE BEEN ERROR, THE COURT'S REFUSAL TO DISCUSS THE MATTER FURTHER WITH THE FOREPERSON AND THE JURY ONCE AN OBJECTION WAS LODGED HAD THE SAME COERCIVE EFFECT THAT THE INSTRUCTION IS MEANT TO AVOID, AND REVERSAL IS REQUIRED.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

In a supplemental pro se brief, defendant adds these issues:

POINT I

DEFENDANT'S CONVICTION WAS SECURED IN VIOLATION OF HIS STATE, AND FEDERAL CONSTITUTIONAL RIGHTS, BECAUSE UNDER THE NEW JERSEY SUPREME COURT'S HOLDING IN STATE V. A.G.D., 178 N.J. 56 (2003), DEFENDANT CALHOUN'S WAIVER OF HIS STATE-LAW RIGHT AGAINST SELF-INCRIMINATION ON OCTOBER 14, 2004, WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY PER SE, BECAUSE THE POLICE FAILED TO INFORM HIM THAT AN ARREST WARRANT HAD BEEN FILED OR ISSUED AGAINST HIM, AND HE DID NOT OTHERWISE KNOW THAT FACT. AS A RESULT, DEFENDANT CALHOUN'S INCRIMINATING STATEMENTS FROM OCTOBER 14, 2004, SHOULD BE SUPPRESSED, AND HIS CONVICTION REVERSED. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, 1, 9, 10. (raised below)

POINT II

THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT'S WAIVER OF RIGHTS WAS KNOWING AND VOLUNTARY, AND THE TRIAL JUDGE'S FINDINGS WERE INSUFFICIENT TO SUPPORT ITS DECISION. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, 1, 9, 10. (raised below)

POINT III

THE TRIAL JUDGE'S FAILURE TO PROVIDE A PROPER CORROBORATION CHARGE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, 1, 9, 10. (Not Raise[d] Below)

Following our consideration of the arguments on appeal, in light of the record and applicable law, we affirm.

These facts, taken from the trial record, substantially support the jury's verdict. On October 3, 2004, between approximately 7:30 p.m. to 8:00 p.m., then twenty-one year old S.M. was visiting her boyfriend who was working at a Walgreens pharmacy in Lakewood. As she exited the store intending to go to her car, S.M. encountered defendant who stepped in front of her, grabbed her and held a kitchen knife to her neck. Defendant forced S.M. to surrender her car keys and get into the backseat of her vehicle where he bound her with clothing. He drove the car a short distance, pulled over on an unpaved portion of Vine Street and entered the backseat. While S.M. was bound, defendant removed her pants and placed his mouth on her vagina and rectum. S.M. was crying, but her pleas for defendant to stop were ignored. S.M. testified defendant proceeded to penetrate her with his penis, both anally and vaginally, each for approximately fifteen minutes. Defendant then lit a cigarette he shared with S.M., dressed her and returned to the front seat to continue driving. S.M. remained bound in the rear seat of her vehicle.

Defendant stated he needed money and S.M. gave him access to her bank account personal identification number from which he withdrew $100. Afterward, defendant threatened S.M. to not think about escaping, bound her mouth, locked the car and went to a store. Defendant returned and drove to Martin Luther King Boulevard to talk to others. He left the car, locking it from the inside and took the keys and S.M.'s cell phone. As defendant continued driving that evening, he stopped to purchase drugs and blunt cigars. He removed the tobacco, replaced it with marijuana, and then shared the blunt with S.M. When asked, S.M. stated she participated in smoking the marijuana because she wanted "to make [defendant] feel comfortable with me."

Eventually, defendant untied S.M. and permitted her to sit in the front seat. The two continued to drive to various spots, again smoked marijuana, withdrew another $500 from S.M.'s bank account and picked up defendant's bicycle which he had left at the Walgreens. At that time, defendant asked S.M. to drop him off on Finchley Boulevard, which she did and drove away. S.M. called her boyfriend, who suggested she dial 911. Police responded, took S.M.'s statement and accompanied her to a hospital for a sexual assault examination.

Six days later, S.M. identified defendant from a photo array. Defendant was arrested on October 14, 2004 and taken into custody. After defendant was Mirandized,1 he provided a statement to police. In a ten count indictment, an Ocean County grand jury charged defendant with first-degree kidnapping, N.J.S.A 2C:13-1(b) (count one); carjacking, N.J.S.A. 2C:15-2 (count two); second-degree burglary, N.J.S.A 2C:18-2 (count three); armed robbery, N.J.S.A. 2C:15-1 (count four); third-degree theft, N.J.S.A. 2C:20-3 (count five); two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and :14-2(a)(4) (counts six and seven); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count eight); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count nine); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count ten). The two-week trial began in May 2008.

Defendant employed a defensive strategy suggesting he knew S.M. and their sexual interactions were consensual. On cross-examination, inconsistencies and exaggerations made by S.M. in her various statements were highlighted. For example, she informed the 911 operator defendant had a gun and a knife, when she knew he did not possess a gun. Also, she did not tell the responding officer she was tied with socks but told another officer the socks that were used to bind her came from defendant's feet. S.M. was vigorously questioned on why she had not attempted to escape after defendant freed her hands and feet; why she did not run for help to a friend's nearby home located at one area where defendant stopped; whether she knew defendant; why she spoke to a male friend at 10:30 p.m. but did not reveal her circumstances; and asked to explain how defendant removed her clothing to perform the sexual acts if she was bound as she described.

In addition to S.M.'s testimony, the State presented numerous fact witnesses including: S.M.'s boyfriend, the 911 operator, the nurse who performed the sexual assault exam, the investigating police and sheriff's officers and detectives, a witnesses who saw defendant approach her nephew that evening and defendant's girlfriend who explained defendant had asked her to go to S.M.'s house to view its exterior and interior contents to relate the information to him. Additional evidence included records from S.M.'s bank account withdrawals, printouts showing her cell phone use, the surveillance video from Walgreens, lab reports verifying defendant's fingerprints in S.M.'s car, S.M.'s hospital records and defendant's custodial statement.

The defense included testimony from Lakewood Police Detectives Sherry Ann Jones and Stephen W. Wexler. Detective Jones interviewed S.M. at the hospital and she was asked to identify inconsistencies in S.M.'s statement at that time and her trial testimony. Detective Wexler was questioned about his part in the interrogation of defendant. Responding he could not remember whether he was in the interrogation room, defendant blurted out that Wexler was lying, saying, "You came in and roughed me up." After a curative instruction directing the jury to disregard defendant's outburst, the trial resumed.

The jury found defendant guilty of the lesser-included offense of second-degree kidnapping, carjacking, second-degree burglary, the lesser included offense of second-degree robbery, one count of aggravated sexual assault and second-degree sexual assault. Defendant was acquitted of the remaining charges.

The court granted the State's application to impose an extended term sentence and, after merger, sentenced defendant to an aggregate term of imprisonment of thirty years, subject to the parole ineligibility restrictions of NERA. This appeal followed.

We have combined the similar issues raised in counsel's and defendant's pro se submission. We first review the challenges to defendant's conviction. In challenging his conviction, defendant asserts two errors regarding the jury instructions given by the trial judge.

We start with the first argument, that defendant was prejudiced by the court's statements which coerced a verdict. Additional background is necessary to understand this challenge.

After more than a full day of deliberation, the jury requested a written copy of the court's charge to follow it "step-by-step." The charge was marked as an exhibit and the jury continued its deliberation using the written copy of the instructions. That day the jury made several additional requests to review various testimony.

When the jury resumed its deliberations following the Memorial Day weekend, it submitted another note to the court which stated:

[T]his jury is at an impasse. We cannot come to a unanimous decision. How should we proceed from here? We have been at an impasse for two days of deliberations. We are very close to a unanimous decision but do not think we will come to a unanimous decision. How do we portray [sic] we have come to a verdict[?]

Defendant's request for a mistrial was denied. The jury was summoned and asked whether it had reached a unanimous verdict on any of the charges. The foreperson affirmed it had not.

The judge then reinstructed the jury, emphasizing it must consider each charge separately when determining whether the State had proven the elements of any offense beyond a reasonable doubt. The judge also reread the standard Czachor2 charge, informing the jurors:

The verdict must represent the considered judgment of each juror. In order to return a verdict it is necessary that each juror agree thereto. Your verdict must [be] unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans, you are judges, judges of fact. Your sole interest is to ascertain the truth from the evidence in the case.

The Court will be asking you to return again to the jury room just to further your deliberations. It is about lunchtime. The Court will inquire from you whether you intend to work through lunch or would you like to take a lunch break and return at 1:30 for further deliberations? If you need time to talk and, just give me a note. I'd appreciate it.

Or if you know the answer now, Foreperson[?]

To that last comment the foreperson stated: "Your honor, it seems like we are not going to come to --" The judge interrupted and said "Lunch break or --" The foreperson acknowledged her confusion and stated "Sorry, we didn't talk about that." The judge then stated:

THE COURT: That's what I'm asking you. I'm going to ask you to go back in and let me know about that. If you want to continue through lunch, I'll accommodate you. And if you want to break, let me know. You can return and I'll wait for your decision.

With that the jury requested to break for lunch. Defendant once again moved for a mistrial, which was denied. Later that afternoon, the jury returned and announced its verdict. The jury was polled and the decision was unanimous.

Defendant argues the verdict must be set aside as a product of coercion because the court disregarded the foreperson's suggestion that further deliberations would not break the deadlock and "steamrolled" the jury to consider a break for lunch. Defendant maintains the "practical effect" of the court's action was to turn the benign Czachor instruction into "a coerced demand for a verdict" by giving the jury the impression "that no matter the circumstances, the jurors were going to go back and get a verdict." We disagree.

"[O]ur Supreme Court prohibited the use of jury instructions that convey pressure to return a verdict because such pressure is 'inconsistent with jury freedom and responsibility' and 'does not permit jurors to deliberate objectively, freely, and with an untrammeled mind.'" State v. Adim, 410 N.J. Super. 410, 423 (App. Div. 2009). In Czachor, supra, the Court disapproved of any instruction given once a deadlock is reported, which includes coercive features that apply "both blunt and subtle pressures upon the jury." 82 N.J. at 402. Accordingly, the Model Criminal Jury Charges were modified to reflect the court's instructions.3

Here, defendant does not dispute the trial judge properly administered an instruction in full compliance with Czachor. His challenge focuses on the exchange that followed the charge, which he believes undercut the spirit of Czachor by ignoring the jury foreperson's "objection" to continued deliberations because of the deadlock. We disagree with this characterization and determine the court's action had no coercive effect upon the jury's deliberations.

In viewing the entire colloquy it is evident the foreperson was not "voic[ing] an objection to further deliberations," as defendant suggests, but merely misunderstood the court's question addressing a lunch break. Believing the court was asking about the status of deliberations, the foreperson attempted to explain where the jury stood. Although the judge interrupted the completion of her statement, he did so to correct the misunderstanding, not to disregard her comments and "'shush' the foreperson."

Overall, the jury instruction used was balanced and unremarkable, properly directing the jurors to re-examine their personal positions as they attempted unanimity. The foreperson's report was not that the jury was hopelessly deadlocked as suggested by defendant. The court's comments did not push the jury toward the verdict by suggesting they would not be discharged. See State v. Figueroa, 190 N.J. 219, 227 (2007) (holding a comment that the court would stay all weekend and be there "as long as it takes to go through this process" was coercive). We find no impropriety in the instruction as given.

Second, defendant, in his pro se submission, argues his rights to due process and a fair trial were violated because of the absence of a corroboration charge informing the jury his guilt may not rest solely on his uncorroborated extra-judicial confession. The assertion is unfounded and rejected.

As a matter of law, a defendant's guilt may not rest solely on an uncorroborated confession. State v. DiFrisco, 118 N.J.253, 272 (1990); State v. Lucas, 30 N.J.37, 51 (1959). "[S]ome corroboration is required" to independently establish the elements of the offenses charged and it is the jury which is charged with the task of resolving "'arguments and speculation' about its weight and sufficiency." DiFrisco, supra, 118 N.J. at 271-72.

As detailed above, the State's case was not merely comprised of defendant's custodial statement; rather it presented fifteen witnesses, including the victim, and introduced documentary, physical, forensic and other evidence over the two-week trial to independently prove each element of the offenses charged. The court properly instructed the jury that the State has the burden of proof on each offense and that the jury must weigh the evidence and determine the facts. We find no error.

In a related argument, defendant suggests he did not knowingly and voluntarily waive his right against self-incrimination. Relying on State v. A.G.D., 178 N.J. 56 (2003), defendant maintains that because he was not advised an arrest warrant had issued, his custodial statement should have been suppressed. This argument is without merit.

"As a general rule, '[i]n determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation[.]'" Id. at 67 (quoting State v. Presha, 163 N.J. 304, 313 (2000)). In this regard, the Court in A.G.D. concluded, "The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights." Id. at 68.

On January 4, 2006, the circumstances of defendant's arrest and custodial statement were presented in a pre-trial evidential hearing before a judge other than the trial judge. Detective Kenneth Hess of the Ocean County Prosecutor's Office testified that following his arrest, defendant was told of the investigation, advised of his Miranda rights, and presented with a copy of the written charges before any substantive discussion took place. Investigator Colleen Lynch of the Ocean County Prosecutor's Office monitored the interrogation from an adjacent room. She confirmed Detective Hess told defendant of the charges for which he was arrested before he made a statement regarding the events.

At the conclusion of the hearing, the court stated, "I am firmly convinced that the defendant was properly advised of his rights; that he knew and understood them probably better than most college graduates; and that he intelligently and voluntarily waived them." Defendant offers no evidence to challenge these findings, which we find are based on substantially credible evidence in the record and will not be disturbed.

After reviewing defendant's prior qualifying convictions (a 1996 theft, a 1998 burglary, and a 2002 sexual battery in Virginia, all which occurred when defendant was over eighteen), the court determined the current offense was committed within ten years of defendant's release from prison and concluded defendant was a persistent offender, subject to an extended term sentence. N.J.S.A. 2C:44-3(a).

Prior to fixing the term of the sentence, the court applied aggravating factors (1) (the nature and circumstances of the offense), (3) (the risk defendant will reoffend), (6) (defendant's criminal history), and (9) (the need for deterrence). N.J.S.A. 2C:44-1(a)(1), (3), (6), (9). The court also found mitigating factor (6), N.J.S.A. 2C:44-1(b)(6), applied because defendant was ordered to pay restitution. Concluding the aggravating factors substantially preponderated over the mitigating factors, the court entered its sentence, stating:

On the kidnapping charge, ten years to New Jersey s State s Prison; on the car jacking, twenty years to New Jersey State s Prison; the burglary, ten years to New Jersey State s Prison, the robbery, ten years to New Jersey s State Prison. Regarding the aggravated sexual assault, the Court, considering the need to protect society from future offenses by this defendant, deems that an extended term is warranted and will sentence the defendant to thirty years in New Jersey s State Prison. The Court will merge Count 8. And the Court will indicate that all of the offenses fall under NERA; he has to serve 85 percent of the sentence before he s eligible for parole. All of them will be concurrent.

Defendant argues the court erred in making its findings and abused its discretion in imposing an extended term sentence. We reject these arguments.

Our review of the trial judge's sentencing decision is quite limited. State v. Bieniek, 200 N.J. 601, 607-08 (2010). "Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]'" the trial judge is afforded considerable discretion in the imposition of the sentence, and in our review we "'may not substitute our judgment for that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Evers, 175 N.J. 355, 386 (2003)). When a trial judge's findings of any statutory aggravating and mitigating factors are "based upon competent credible evidence in the record," and the sentence imposed falls within the permissible range for the convicted offense, we will not interfere. State v. Roth, 95 N.J. 334, 364 (1984); Bieniek, supra, 200 N.J. at 607-08. When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . ., they need fear no second-guessing." Cassady, supra, 198 N.J. at 181 (quoting Roth, supra, 95 N.J. at 365). Modification becomes necessary only when we determine the judge mistakenly exercised his or her broad discretion and imposed a sentence that shocks the judicial conscience. Roth, supra, 95 N.J. at 364.

First, in reading the entirety of the court's sentencing comments, it is clear that the judge did find a need to protect the public warranting the exercised discretion to impose an extended term sentence. Defendant's contention to the contrary is rejected.

Second, the court's finding of applicable aggravating and mitigating factors was "'grounded in competent, reasonably credible evidence.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting Roth, supra, 95 N.J. at 363). In addition to a prior New Jersey conviction on June 5, 2004, defendant absconded from incarceration in Virginia following a conviction for sexual assault, for which a fugitive warrant was outstanding at the time he was arrested for the present offenses. Also, defendant's juvenile adjudications and municipal dispositions in New Jersey, North Carolina and New York were reviewed. When weighed against the sole mitigating factor of the modest financial restitution imposed, defendant's thirty-year sentence for the enhanced first-degree aggravated sexual assault offense does not "shock[] the judicial conscience." Roth, supra, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)). Therefore, we find no basis for interference.

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

2 See State v. Czachor, 82 N.J. 392, 405 n.4 (1980) (discussing jury instruction to be given when faced with a possible deadlock).

3 See Model Jury Charge (Criminal), "Further Jury Deliberations" (1994).