STATE OF NEW JERSEY v. ERIC D. DANIELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3317-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC D. DANIELS,

Defendant-Appellant.

________________________________________________________________

February 20, 2013

Submitted September 19, 2012 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-1096.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
 

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

PER CURIAM

Defendant appeals from his conviction for second-degree burglary, N.J.S.A. 2C:18-2, and his sentence. We affirm.

The events underlying this offense occurred on August 12 and 13, 2008 at the home of defendant's former girlfriend, Tanya Reeves. Defendant and Reeves had lived together in Linden for a period of time. After their relationship ended, Reeves moved to another apartment on the same street with her son in August 2008. Reeves testified that, when they broke up, she made it clear to defendant that she wanted nothing to do with him anymore. However, when she moved, she took clothing defendant had left behind with her to give him an opportunity to retrieve it. Her arrangement with him was that "he was to call the police officer when he needed his belongings and they would escort him to [her] home to pick them up."

On August 12, 2008, defendant arrived at Reeves's residence in the evening and rang the doorbell. Reeves spotted him through her window blinds, but she did not answer the door. Reeves had not allowed defendant into her house since she had moved and was afraid to let him into the house because he appeared "[a] little disturbed." After defendant came back several times, Reeves asked him what he wanted. He said he needed some things to wear. Reeves prepared a bag of his clothes and threw it out the window.

The next morning, August 13, 2008, at approximately 7:20, Reeves was in her bedroom with her friend, John Hendricks. As the two prepared for work, Reeves opened the bedroom door, which had been cracked open, and saw defendant standing right at the bedroom door. When defendant saw there was another man there, he started calling Reeves names, such as a "stinking bitch[.]" Defendant struck Hendricks once and Reeves once or twice, knocking Reeves to the floor, where she "tussle[d]" with defendant. Reeves yelled to her son to get her neighbor, Jacyn McPhail, a Linden police officer. Before McPhail arrived, defendant asked Reeves to return a chain and a ring he had given to her while they were dating. Reeves testified that she "voluntarily" returned the jewelry to prevent the situation from "elevat[ing]" further.

Officer McPhail testified that at approximately 7 a.m., he was awakened by "loud banging and screaming" coming from Reeves's apartment, which was attached to his unit. He heard a woman screaming, "get off me, get off me, stop." McPhail instructed his wife to call 911. McPhail got dressed in street clothes and placed his police badge around his neck. As he was getting dressed, his doorbell began to ring and he could hear Reeves's son yelling. He answered the door and Reeves's son directed him toward Reeves's open apartment door.

When McPhail entered Reeves's unit, defendant had Reeves pinned against a wall. He held her up against the wall with his left hand around her throat and his right arm was drawn back "like he was going to punch" her. Hendricks was "kind of in between them trying to shield [] Reeves from [defendant.]" McPhail drew his duty weapon and yelled "Linden police." He told defendant to let Reeves go and get on the floor. Defendant "smirked," looked at McPhail and said, "fuck that, fuck you." When he did not release Reeves, McPhail "rushed [defendant] and put him in a compliance hold down on the floor[.]" McPhail got on top of him but defendant was "still very angry" and "still trying to get up and peel [McPhail's] hands away from holding him down."

After another officer arrived, McPhail had an opportunity to inspect the house. He discovered that the screen on the basement window on Reeves's side of the apartment was off and the window was open. Among the items in defendant's possession at the time of his arrest were a diamond ring and a diamond necklace, items consistent with the description of items Reeves reported defendant had taken from her. Photographs were taken of bruises Reeves had sustained on her arm and neck.

After being advised of his Miranda1 rights, defendant gave a statement to Linden Police Detective Andrew Spano. Although there were discrepancies between his statement and the version of events provided by Reeves, defendant admitted the following: He went to Reeves's home on the evening of August 12 and the morning of August 13, 2008. When he returned in the morning, he knew there was a man in Reeves's bedroom. He kicked in Reeves's basement window. Although he knew his belongings were in the basement, he proceeded up two flights of stairs to Reeves's bedroom on the second floor. Once in the bedroom, he called Reeves a "[b]itch" and a "sloppy pussy hoe[.]" He demanded that Reeves remove the jewelry she was wearing, including the engagement ring he had given her. Defendant stated that Hendricks jumped up from Reeves's bed and went to grab Reeves. Defendant responded by "mush[ing]" Hendricks and "push[ing] him back on the bed." Defendant stated that when Reeves then "came at" him, his "anger got the best" of him and he hit her. Hendricks "jump[ed] up" and defendant hit him too. Defendant stated further that McPhail was wearing a tee shirt and jeans, did not have a badge on, and did not identify himself as a police officer when he arrived. Defendant stated that McPhail only identified himself as a police officer after pinning defendant on the bed.

Prior to defendant's testimony at trial, the court held a hearing pursuant to State v. Sands, 76 N.J. 127 (1978). Over defendant's objection, the court ruled that on cross-examination the State could introduce sanitized versions of defendant's four most recent criminal convictions: two third-degree drug offenses which occurred in 1992 and 2001, respectively, and for which defendant received four-year sentences; a second-degree robbery conviction in 1997, which resulted in another four-year sentence; and a third-degree aggravated assault conviction in 2002, for which defendant was sentenced to three years. Defendant's pre-1992 convictions, a 1987 conviction for third-degree criminal trespass; 1988 convictions for burglary, terroristic threats, and violating parole; 1989 convictions for criminal trespass and violating parole; and a 1990 conviction for third-degree possession of a controlled dangerous substance; were ruled inadmissible.

Defendant testified that he went to Reeves's apartment twice in an effort to retrieve his belongings, which he described as "[e]verything [he] ever owned[,]" including his elderly mother's insurance and burial papers and "pictures and stuff of [his deceased] father[.]" On cross-examination, defendant admitted that he had four prior convictions, three third-degree offenses and one second-degree offense, for which he served three four-year sentences and one three-year term.

At sentencing, the trial court found aggravating factors (3) (risk that defendant will commit another offense); (6) (the seriousness of defendant's prior record); and (9) (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a). The court found no mitigating factors. The court sentenced defendant to a seven-year term, with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a three-year period of parole supervision, and imposed appropriate fines and penalties.

Defendant raises the following issues in this appeal:

POINT I

THE ADMITTANCE INTO EVIDENCE OF [DEFENDANT'S] REMOTE CRIMINAL CONVICTIONS CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL

POINT II

THE PROSECUTOR IMPROPERLY COMMENTED ON [DEFENDANT'S] POST-ARREST SILENCE, THEREBY VIOLATING HIS RIGHT AGAINST SELF-INCRIMINATION AND DEPRIVING HIM OF A FAIR TRIAL (NOT RAISED BELOW)

POINT III

PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED [DEFENDANT] OF A FAIR TRIAL (NOT RAISED BELOW)

POINT IV

THE JURY'S GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)

POINT V

CUMULATIVE ERRORS DENIED [] DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT VI

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON [DEFENDANT] (NOT RAISED BELOW)

We are unpersuaded by any of defendant's arguments.

In Point I, defendant argues that the court abused its discretion in permitting the State to question him about two of his four most recent convictions because the convictions, one in 1992 and one in 1997, were "patently remote." He does not contend that the court erred in permitting evidence regarding his 2001 and 2002 convictions for third-degree offenses.

N.J.R.E. 609 provides, in pertinent part, that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The rule affords the trial judge discretion to admit a prior conviction for impeachment purposes "'despite the obvious prejudice that flows from such evidence, particularly for a criminal defendant.'" State v. Harris, 209 N.J. 431, 442 (2012) (quoting State v. Hamilton, 193 N.J. 255, 256 (2008)). Generally, evidence of prior convictions "should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid.

Although remoteness is the key to exclusion under N.J.R.E. 609, it "cannot ordinarily be determined by the passage of time alone." Sands, supra, 76 N.J. at 144. Rather, as the trial judge noted here, an important consideration is whether the defendant witness has "intervening convictions between the past conviction and the crime for which the defendant is being tried." Id. at 145. The Sands Court explained,

When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Ibid. (emphasis added).]

Defendant's criminal history presents an example of the principle articulated in Sands. The 1992 drug offense was committed in April 1992, while defendant was on parole for a prior 1990 drug conviction. After defendant was paroled in April 1994, he committed second-degree robbery in March 1997. Then, after he was released in April 2000, he committed a drug offense in 2001 and aggravated assault in 2002. Thus, although defendant is correct that the 1992 conviction occurred seventeen years prior to the his trial in the case at bar, the trial judge correctly found that defendant executed a "regular and continuous course of" criminal conduct, such that his earliest and intervening convictions were admissible. We are satisfied the trial judge did not abuse his discretion in reaching this conclusion.

The issues raised in Points II through VI are raised for the first time on appeal. This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Summers, 176 N.J. 306, 316 (2003); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Our review is therefore limited to "a search for plain error, Rule 2:10-2[,]" State v. Nesbitt, 185 N.J. 504, 516 (2006), that is, error "sufficient to raise a reasonable doubt as to whether [the error] led the jury to a result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004).

In Points II and III, defendant argues that a comment made by the prosecutor in summation constituted an improper comment on his right to remain silent and also requires reversal because it improperly shifted the burden of proof to him. We are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond these limited comments.

The defense to the burglary charge was that, although defendant was in Reeves's apartment, he did not enter the apartment with the intention to commit an offense. See N.J.S.A. 2C:18-2. The challenged prosecutor's statement was part of her argument that defendant entered Reeves's apartment with the intent to assault Reeves, "not to get his belongings back," as he argued at trial. To support that claim, the prosecutor stated,

[E]vidence of the fact that [defendant] was not there to get his own belongings is the testimony of Officer McPhail. Officer McPhail said he came into the bedroom and he saw the defendant with his hand on the victim's throat and he had his gun drawn. He pointed the gun at the defendant, a loaded weapon. Did defendant stop and say -- I'm just here to get my belongings back. I'm in the right. I -- I don't -- no. . . . Is this a man who was there to get his [belongings] back? I don't think so.

"'[A] defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not.'" State v. Muhammad, 182 N.J. 551, 570 (2005) (quoting State v. Deatore, 70 N.J. 100, 115 (1976)). As a result, the prosecutor may not use a defendant's silence at trial "when that silence arises at or near the time of arrest, during official interrogation, or while in police custody." Id. at 569 (internal quotation marks omitted). However, "a defendant's pre-arrest silence can be used for impeachment purposes (1) 'if that silence significantly' preceded his arrest and did not arise in a custodial or interrogation setting,' and (2) if a jury could infer that a reasonable person in the defendant's position would have come forward and spoken." State v. Taffaro, 195 N.J. 442, 455 (2008) (quoting Muhammad, supra, 182 N.J. at 571-72).

In this case, defendant's failure to announce his exculpatory motive did not occur in a custodial or interrogation setting. It might be inferred that a reasonable person found in Reeves's apartment under other circumstances would explain to McPhail upon his arrival that he was present for a non-criminal purpose. However, when McPhail arrived, defendant was in the process of attacking Reeves, rendering such a disclaimer essentially futile. Defendant was arrested shortly thereafter.

Although the circumstances here did not warrant the use of defendant's failure to announce his purportedly lawful motive for entering the apartment, we are mindful that "not every prosecutorial misstatement warrants a new trial." State v. Feal, 194 N.J. 293, 312 (2008). This is especially true where a defendant fails to object to a challenged statement "and thus deprives the trial judge of the opportunity to ameliorate any perceived errors[.]" Ibid.

In this case, the prosecutor's comment was a fleeting reference to defendant's failure to volunteer his purportedly lawful motive for entering the apartment. In light of the facts that defendant did give a statement to the police and testified at trial, the comment did not suggest that the jury should infer defendant's guilt because he exercised his right to remain silent. Rather, the comment was surgically limited to the issue raised by defendant's trial strategy -- whether or not he had the intent to commit an offense when he entered the apartment.2

Moreover, the evidence of defendant's guilt was compelling. The testimony of his victim was corroborated by that of McPhail, who had to wrestle defendant to the ground to subdue him. Defendant admitted kicking in the basement window to gain entry, bypassing his possessions in the basement to go up two flights of stairs to Reeves's bedroom, where he knew she was with another man. And, defendant admitted striking Reeves and Hendricks. We are therefore satisfied that any error in the prosecutor's comment was harmless.

In challenging his sentence, defendant argues that the trial court's finding of aggravating factors was not supported by credible evidence. He does not, however, explain why the aggravating factors found by the trial judge do not apply. He also does not argue that the trial judge erred in finding that no mitigating factors apply.

The standard of review applied to the court's sentencing decision is one of deference. "[A]s long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" we will not disturb the sentence. State v. O'Donnell, 117 N.J. 210, 215 (1989).

Defendant was forty years old at the time of this offense. He had an extensive criminal record, which, as the sentencing judge observed, included seven prior State prison sentences, eight violations of parole, and six violations of probation. Although the sentencing judge could have given a more expansive qualitative analysis of defendant's record, there is ample support for the judge's findings regarding the aggravating factors here. The judge did not fail to consider any mitigating factor that was supported by the record. It is possible "in the context of this record to extrapolate without great difficulty the court's reasoning." State v. Bieniek, 200 N.J. 601, 609 (2010) (quoting State v. Pillot, 115 N.J. 558, 565-66 (1989)). We therefore conclude the court did not abuse its discretion in imposing the sentence.

Defendants remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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

2 Defendant also argues that the prosecutor's reference to his silence impermissibly shifted the burden of proof to defendant to disprove his intent. Specifically, he asserts that the prosecutor "suggested that the jury should reject [defendant's] claim of right defense because the defense [had] not proven it." We discern no rational basis for this argument in the prosecutor's challenged comment.