STATE OF NEW JERSEY v. GEORGE J. LANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1319-11T11

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE J. LANE,

a/k/a GEORGE JOSEPH LANE,

Defendant-Appellant.

________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOBY D. WELLINGTON,

a/k/a TOBY DEAN WELLINGTON, a/k/a

TROY WELLINGTON,

Defendant-Appellant.

________________________________________

February 27, 2014

 

Submitted December 9, 2013 - Decided

 

Before Judges Parrillo, Kennedy, and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. 10-03-106.

 

Joseph E. Krakora, Public Defender, attorney for appellants (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief in A-0584-11; Michele A. Adubato, Designated Counsel, on the brief in A-1319-11).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief in A-0584-11 and A-1319-11).

 

Appellant Toby D. Wellington filed a pro se supplement brief.

PER CURIAM

Defendants George Lane and Toby Wellington were tried before a jury and convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(2); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

Both defendants were sentenced to prison terms of twelve years on the robbery convictions and were required to serve eighty-five percent of the sentences without parole, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. They were also sentenced to concurrent five-year terms on the conspiracy and weapons convictions. Defendants appeal from the judgments of conviction entered on July 11, 2011.

 

For the reasons that follow, we affirm both convictions but remand for the limited purpose of correcting the judgments of conviction to reflect the mergers of the weapons and conspiracy convictions into the armed robbery convictions.

I.

On November 4, 2009, Jignesh Patel was working in the Greenwich Township delicatessen he owned. At approximately 12:30 p.m., Jignesh and his brother, Manny Patel, were making sandwiches for some customers, when a man walked into the deli and stood by the register. Jignesh went to attend to the customer and asked if he could help him. The man told Jignesh to open the drawer of the cash register. When Jignesh asked the man to repeat the statement, the man displayed a wood-handled gun and again told Jignesh to open the drawer of the register. For emphasis, the gunman told Jignesh, "I'm not kidding," as he displayed the gun. When Jignesh opened the cash register, the gunman reached over the counter, grabbed cash out of the drawer, and ran out of the deli.

Sergeant David Voll of the Greenwich Township Police Department happened to be in the deli, seated at a table in the rear, waiting for a sandwich. Manny told Voll that they had just been robbed. Voll ran outside and saw a vehicle, which he believed to be a Pontiac with a Pennsylvania license plate, traveling fast through the parking lot. After leaving the parking lot, the vehicle headed westbound on Greenwich Street. Voll radioed a description of the vehicle into his dispatcher and returned to police headquarters where he retrieved his vehicle and headed west on Greenwich Street in pursuit of the Pontiac.

Trooper Susan Stafford-Mistretta, of the New Jersey State Police (NJSP), received a dispatch relating to an armed robbery in Greenwich and was told to look for a Pontiac with a Pennsylvania license plate. Trooper Mistretta proceeded to the Northampton Street Bridge, connecting Phillipsburg, New Jersey, to Easton, Pennsylvania, where she observed a vehicle fitting the description. She radioed dispatch and other police units that she had the suspect vehicle in sight and followed the Pontiac across the bridge.

After several blocks, the Pontiac accelerated and began to exceed the speed limit. Trooper Mistretta activated her lights but the car failed to stop and made an abrupt left turn. After a short distance, the Pontiac stopped and the driver and a passenger, later identified as Wellington and Lane, respectively, got out and ran.

NJSP Trooper Jack Fuhrmann joined Mistretta in the pursuit and pulled up behind where she had parked. He observed the driver and passenger get out of the Pontiac and run in opposite directions. He saw both men again about twenty minutes later after they had been arrested and identified Wellington as the driver and Lane as the passenger.

NJSP Trooper Craig Hyson responded to the location in Easton where the Pontiac stopped and joined in the search. Along with NJSP Sergeant Robert Paruta and Captain Michael Vangelo of the Easton Police, Hyson found Lane hiding in an alley between two buildings, approximately two blocks from where the Pontiac was abandoned.

Easton Police Detective Thomas Beiser joined in the pursuit of Wellington. After walking through a wooded area, Beiser spotted Wellington and ordered him at gunpoint to raise his hands and stop. After other officers responded to the area, Wellington was taken into custody. Beiser recovered $170 in cash from the area where he first spotted Wellington.

The Pontiac was towed from Easton to the county impound yard and secured. Detective Sergeant Rich Hummer obtained a warrant to search the vehicle. During the search, a white hooded sweatshirt was found on the floor behind the driver's seat. A hockey mask, a baseball cap, and an envelope addressed to Wellington by a Pennsylvania county human services office were found in the trunk. A second sweatshirt, hooded and black, was found in the vehicle.

Hummer took photographs of the vehicle and the items recovered during the search. When Hummer showed the photograph of the white sweatshirt to Jignesh, he identified it as the one worn by the person who robbed him.

Detective James McCormick of the Warren County Prosecutor's Office testified that the owner of the Pontiac was Kelly Thompkins, who lived in Pennsylvania. The license plate on the Pontiac was not registered to the vehicle. Thompkins testified that she owned the Pontiac, but her daughter, Kendra, who had been living with Wellington and was pregnant with his child, was the one who used the car.

Neither defendant testified and Wellington called only one witness, Lori Kocher, who arrived at the deli lot with two co-workers at the time of the robbery. Kocher testified that she saw a car parked on the side of the deli with a driver she believed to be white, although she admitted he could have been a light-skinned black male.

On appeal, George J. Lane raises the following points:

point i

 

the judge's response to a jury question regarding the possibility that defendant simulated possession of a deadly weapon was inadequate, as it omitted language contained in the model charge and deemed necessary in state v. harris.[2]

 

point ii

 

although the police had a warrant to search the automobile allegedly used by the robbers, the evidence suggested that the police searched the vehicle before they obtained the warrant. and the judge erred in denying an evidentiary hearing on the suppression issue on the basis that defendant lacked standing to raise the claim.

 

point iii

 

lane is entitled to a new trial because the court's instruction on identification was flawed in several ways, including omitting crucial portions of the model charge regarding a prior suggestive identification procedure. (not raised below).

 

point iv

 

the prosecutor committed misconduct in summation when he referred to extra-record information to bolster the notion that lane was the robber and when he suggested that an acquittal would mean that the trial would have been a waste of the three-week trial.

 

point v

 

the sentence was excessive because the robbery was less serious than other first-degree robberies, and the court erred in failing to merge the conspiracy conviction into the robbery.

 

 

Toby D. Wellington raises the following points:

point i

 

the denial of the defendant's motion to suppress on the grounds he had no expectation of prIvicy was erroneous.

 

point ii

 

certain conduct by the prosecutor and comments made during his summation were grossly prejudicial and improper and deprived mr. wellington of a fair trial.

 

point iii

 

the trial court erred by not allowing defendant to proceed pro se or in the alternative failed to make the requisite finding on this issue.

 

point iv

 

the trial court's supplemental instruction to the jury in response to their question during deliberations was error which deprived defendant of a fair trial.

 

point v

 

it was an abuse of discretion for the trial court to deny the defendant's motion for judgment of acquittal and mistrial based upon the prosecutor's failure to present competent evidence regarding the license plate number of the car.

 

point vi

 

the offenses of conspiracy to commit robbery while armed and possession of a weapon for an unlawful purpose should have merged with robbery while armed at sentencing. (Not raised below).

 

In addition, Wellington provided these additional arguments in his pro se supplemental brief:

point i

 

the trial court erred by not exercising its discretion pursuant TO rule1:7-5 to order a new trial when the prosecutor blatantly defied the earlier ruling of the court that the car will not be mentioned as stolen.

 

point ii

 

the trial court erred by waiver of defendant's right to knowingly and intelligently represent himself pursuant to rule3:4-2(b)(4).

 

II.

A.

Both defendants challenge the denial of their respective motions to suppress by the trial court. Lane argues that the police searched the Pontiac before they obtained a warrant and, therefore, the fruits of that search must be suppressed. He relies on the grand jury testimony of Jignesh Patel that the police had shown him the sweatshirt he identified as the one worn by the person who robbed him, two days before the warrant was obtained. Lane also challenges the trial court's decision that he lacked standing to challenge the seizure.

Wellington claims that he had an expectation of privacy in operating the Pontiac because it belonged to his girlfriend's mother and the court improperly concluded that the vehicle had been stolen.

Jignesh Patel testified before the grand jury that the police had shown him a photograph of a sweatshirt on the day of the robbery and he recognized it as the sweatshirt that the man who robbed him had been wearing. Based on this testimony, the court accepted defendants' claim that the police searched the Pontiac before obtaining a warrant. However, it held that the warrantless search was proper because defendants had no reasonable expectation of privacy in an automobile they knew, or should have known, to have been stolen:

The license plate did not belong to the vehicle, and neither the license plate nor the car was registered to Defendant or the co-defendant. The case law is clear on this issue, and the Court finds that there was no reasonable expectation of privacy. The search was justified even without a warrant as Fourth Amendment protections were not implicated. Thus even if the sweatshirt was obtained before the warrant was signed, the officers were within the corners of the law in obtaining the evidence.

 

Findings by the trial court in deciding a motion to suppress will be accorded deference if the findings could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964).

Because of an individual's constitutionally protected right to be secure from unreasonable searches or seizures, a search conducted without a warrant is presumed to be invalid. State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). A warrantless search of an automobile is permitted in New Jersey if the police do not create the circumstances leading to the need for the search, if there is probable cause to believe the automobile contains evidence of criminality, and if the circumstances are exigent. State v. Minitee, 210 N.J. 307, 319-21 (2012).

Abandoned property is not protected by the constitutional prohibition against unreasonable searches and seizures because there is no reasonable expectation in such property. State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). Property is abandoned when it is voluntarily relinquished without the intention of reclaiming it. Id. at 5-6. In the search and seizure context, a defendant abandons property when he or she voluntarily discards, leaves behind, or otherwise relinquishes his or her interest in the property. Id. at 6.

The issue of whether property has been abandoned is one of fact. See State v. Boykins, 50 N.J. 73, 79 n.1 (1967) (flight of passengers from vehicle "could suggest it was not theirs and that they abandoned possession"). In State v. Carroll, 386 N.J. Super. 143, 147 (App. Div. 2006), a police officer was following a suspected drug dealer by car. After noticing that the vehicle lacked a license plate or registration tag, the officer activated his siren and emergency lights. Ibid. During the pursuit, the officer noted the defendant trying, unsuccessfully, to push a plastic bag out of the window. Ibid. The pursuit ended with the defendant crashing the car into a parked vehicle in a parking lot, and then attempting to flee, leaving the driver's door opened and the plastic bag inside. Ibid. The officer and the defendant struggled, falling into the car, before another officer arrived to help place the defendant under arrest. Id. at 148. The officer retrieved the plastic bag, which, he stated, was in plain view. Ibid. The police later determined that the vehicle had been stolen. Ibid.

In holding that the trial court erred in granting the defendant's motion to suppress the seizure of the plastic bag, we held that the defendant had abandoned both the vehicle and the bag. Id. at 160. We relied on the defendant running away after the crash, leaving the door open, and the plastic bag in plain view on the floor of the car, and noted that the car had been stolen. Id. at 160-61.

In this case, as in Carroll, the police engaged in a pursuit of a suspect in an unregistered vehicle bearing a stolen license plate. Defendants fled, leaving the car unattended in the middle of a street, and neither defendant owned the vehicle. As in Carroll, neither defendant had a reasonable expectation of privacy in the vehicle or its contents, including the sweatshirt, because they had abandoned it.

In State v. Adams, 224 N.J. Super. 669 (App. Div. 1988), a vehicle had been left illegally parked in front of a hospital with the doors open and the key in the ignition following a report of a shooting and a police pursuit. Id. at 671-72. A police officer searched the front seat area for a weapon but found a controlled dangerous substance instead. Id. at 672. We upheld the denial of the motion to suppress the drugs, finding that the search was valid because the vehicle had been abandoned, and because there were exigent circumstances given the report of a shooting. Id. at 673.

In State v. Martin, 87 N.J. 561, 563 (1981), the police found an automobile believed to have been used in an armed robbery, unoccupied and parked in a lot near the scene of the robbery. With the suspects still at large, the vehicle was removed to a police station where officers conducted a warrantless search, seizing a glove and washcloth that had been used in the robbery. Id. at 565.

We held the warrantless search was permissible because of exigent circumstances, noting that the vehicle's occupants had been alerted that they might be suspects in the robbery and might have returned at any moment to move the car or remove its contents. Id. at 569. Furthermore, the level of exigency was heightened by the fact that the police were actively involved in an ongoing investigation shortly after the commission of the crime. Id. at 570. "[W]hen police have probable cause to conduct a warrantless search of an automobile at the spot where the officers encounter the car, they may constitutionally remove the vehicle to police headquarters and there conduct the search without first obtaining a warrant." Id. at 568.

Here, the Pontiac was left in the middle of a street by defendants, who were attempting to escape close police pursuit. They were suspected of participating in an armed robbery only minutes earlier and the police had probable cause to conduct a warrantless search of the car at that location. We are satisfied that a warrantless search of the vehicle was justified under the concepts of exigency and abandonment.

Defendants next maintain that the court erred in not holding an evidentiary hearing on the motion to suppress. Where there is a motion to suppress evidence, if there are material facts in dispute, "testimony thereon shall be taken in open court." R. 3:5-7(c). Thus, an evidentiary hearing on a motion to suppress evidence is required only where there are material facts in dispute. State v. Green, 346 N.J. Super. 87, 90 (App. Div. 2001).

Here, the two issues in dispute, whether the car had actually been stolen and whether defendants had been identified by the victims, are not material. Neither defendant contests the fact that Wellington's girlfriend, Kendra Thompkins, reported the Pontiac stolen shortly after the robbery. In addition, the car was unregistered and bore stolen license plates. Whether Thompkins decided not to press charges upon learning of Wellington's arrest is immaterial. The police had a good faith basis to believe the car was stolen and the search was independently sustainable, even if Wellington had used the vehicle with permission. As the disputed facts were not material to the issue of suppression, the trial court did not abuse its discretion in failing to hold a hearing.

B.

Both defendants contend that their convictions should be reversed because of comments made by the prosecutor during his opening and closing remarks. They allege he referred to evidence outside the record, incorrectly described evidence, commented that defense counsel's cross-examination should have been longer, and said that an acquittal would mean that the trial had been a waste of time.

Prosecutorial misconduct may be a ground for reversal where it was so egregious that it deprived the defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999). In determining whether a prosecutor's misconduct was sufficiently egregious, the tenor of the trial and the degree of responsiveness of both counsel and the court must be taken into account. Ibid. Generally, if no objection is made to the improper remarks, the remarks will not be deemed prejudicial. Ibid.

In summation, the prosecutor stated:

Gee, another coincidence. We find the only white guy in the east in that whole darn area, coupled with passerbyers [sic], the testimony, flagged the cop down. Sergeant Paruta and Hyson testified to that. And Partua said where did they go? Do you know where he is? And based on the information he received --

 

At this point, Lane's attorney objected, claiming that the prosecutor had made an improper comment, and asked for a curative instruction or, in the alternative, a mistrial. In overruling the objection, the trial court stated:

[H]e didn't state what the people said. We stopped, your comments didn't get in. He is simply repeating what was . . . testified to. And I stopped and I said you can't tell us. In fact, I even instructed one witness you can't tell us what they said, but you can tell us, after you had a conversation with them what you did, if anything.

 

Lane argues that the prosecutor violated State v. Bankston, 63 N.J.263 (1973), by implying that a non-testifying witness, or witnesses, had implicated Lane as a suspect through information they had given to the police. Bankstonprohibits a police officer from testifying, directly or by inference, about information received from a non-testifying declarant to incriminate the defendant in the crime charged. Id.at 268-69.

Lane does not claim that any of the police officers who testified violated Bankston, but says that the prosecutor did so in the quoted portion of his summation. The prosecutor did not state that a non-testifying witness had given information implicating Lane in the robbery. At most, the prosecutor implied that the passerby had given the police information as to where the suspect had headed, not evidence implicating either defendant in the commission of the robbery. "[T]he hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Id. at 268.

Lane also argues that the quoted remarks improperly suggested that he stood out as a white in a minority neighborhood, although there was no evidence presented to that effect, and that therefore he must have been the white male who had committed the robbery and who had run from the vehicle. Trooper Fuhrmann testified that he joined the pursuit of defendants after hearing that Trooper Mistretta had spotted the suspect vehicle. After stopping his vehicle behind Mistretta, Fuhrmann observed defendants flee the Pontiac. He described the driver as a black male wearing a white T-shirt who ran west and the passenger as a white male wearing a black T-shirt running in an easterly direction.

Fuhrmann initially pursued the driver but lost sight of him. He later identified both defendants after they had been taken into custody. At trial, Fuhrmann viewed a video taken from Mistretta's trooper car and identified Wellington as the driver and Lane as the passenger when they were shown fleeing the Pontiac after it stopped.

During cross-examination by Wellington's attorney, she questioned Fuhrmann's opportunity to observe her client before identifying him after he had been taken into custody. On redirect, the prosecutor asked Fuhrmann:

Q: So within that 25, 30 minutes between

the time that you saw them running out

and saw them again, from your

understanding, . . . were

there any other white and black male

combinations apprehended within that

half hour besides these two men?

 

A: No, sir.

 

Q: Was there any other black male

with a white T-shirt medium build

in his late 20's apprehended

around that time?

 

A: Not to my knowledge, sir.

 

Q: How about shortly thereafter?

 

A: Not to my knowledge.

 

Q: How about a long time thereafter?

 

A: Again not to my knowledge, sir.

 

Q: Okay. And within that half hour

or shortly thereafter, or any time

thereafter, to your knowledge was

there another white male

apprehended with a black T-shirt

with a medium build look like in

his late 20's with short hair the way

Mr. Lane's hair is now, anybody just

happen to be popping by in a car

somewhere?

 

A: Not to my knowledge, sir.

 

Lane's counsel asked Fuhrmann on re-cross, "were any white males with black T-shirts not apprehended that day in that neighborhood?" Fuhrmann responded that he did not recall.

The prosecutor's reference to the "only white guy" in the area clearly related to questioning of Fuhrmann, and was not a comment about the racial makeup of the area unsupported by the record. Moreover, without objection, the prosecutor subsequently stated in his summation: "I asked[,] any other white man of that description anywhere? No. . . . Any other white man I asked him hanging around crouched anywhere? Hidden? No." We find no error in the prosecutor's remarks that were not objected to, let alone plain error.

Lane also maintains that the prosecutor's remarks regarding Lane's apparently missing white T-shirt were improper:

Now, of course, [Lane's counsel] focused on that white T-shirt. What else does he have? If there is reasonable doubt to give you, if there was stuff he would throw it out at you left and right. He would have cross-examined those people and ripped them to pieces. His closing would have been about three weeks long. Couldn't find that white T-shirt, forget about the cops, blame it on the cops.

 

These remarks prompted the court to warn the prosecutor, out of the jury's presence: "You have the burden. The burden of proof never shifts. . . . And you got to be very careful when you make comments about that they didn't cross-examine or do that. They don't have to do anything."

Although no objection was made and there was no request for cautionary instruction, Lane now complains that the court erred by not giving a cautionary instruction to the jury. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. See Frost, supra, 158 N.J. at 83-84. In addition, the court ruled that the prosecutor's remarks did not cross the line. We again find that these comments did not constitute plain error.

Lane also contends that the following portion of the prosecutor's summation was improper:

[T]hat's why we have 14 human beings sitting here. Because how on God's earth could you ignore all those things that I'm about to go over and say, you know what, just a coincidence. . . . That's what they want you to do. Because if you do that then you're not looking at the evidence. You're not looking and you wasted three weeks. You're not looking at what really was presented to you. And then you get an acquittal, which is of course what they

want.

 

Defendants objected to the prosecutor's "waste of three weeks" remark and the prosecutor responded that he meant that for the jury not to have looked at the evidence would have been a waste of time, and was not referring to an acquittal. The court agreed stating: "I did not hear him say acquittal would be a waste of time."

We defer to the trial court's ruling that the remark was not meant to imply that an acquittal would have been a waste of the jury's time.

Wellington contends that the prosecutor committed misconduct by eliciting testimony from Captain Vangelo that a nearby school was in lockdown until the suspects had been apprehended. Vangelo testified that he arrived at the scene shortly after defendants had fled from the Pontiac. In response to a general question from the prosecutor, asking what he did when he arrived, Vangelo testified that he radioed a description of the suspects to other officers along with the direction they fled. Vangelo also testified that he notified nearby Lafayette College that there were armed suspects in the area and directed a lieutenant to notify an elementary school a few blocks away from where the vehicle was located, "and so they . . . locked the doors and locked the kids in place until we concluded the incident." The prosecutor asked, "That would actually be lunch hour for kids, the playground." Vangelo responded, "I would assume so[.]"

No objection was made to this testimony and the testimony about Lafayette College and the elementary school was presented by Vangelo without prompting by the prosecutor. While the lunch hour question was unnecessary, it fails to rise to the level of error, let alone plain error clearly capable of producing an unjust result.

Wellington further argues that the prosecutor made improper remarks during summation, and his counsel failed to cross-examine certain witnesses and ask certain questions. In discussing Wellington's role as an accomplice, and his actions after leaving the vehicle, the prosecutor told the jury:

 

Wellington . . . goes and blames the police says, look, what did you do to me. Like somebody would believe something happened to his legs or something because of the cops
. . . . Nobody beat him up or cut him up I would submit to you respectfully.

 

It does not appear that Wellington claimed that the police had injured him. Therefore, there was no evidence in the record to support the prosecutor's statement. However, no objection was made at the time, and the statement cannot be said to have been clearly capable of producing an unjust result.

In discussing Jignesh Patel's testimony regarding the robber's age and build, the prosecutor stated: "[I]f what he said on that stand was inconsistent with the taped statement that he gave 17 months ago, you don't think [the defense attorneys] would have ripped him to pieces? . . . [Lane's attorney] sat there and did nothing. What does that say to you?" The prosecutor made a similar statement regarding Lane's focus on the white T-shirt:

What else does he have? If there is reasonable doubt to give you, if there was stuff he would throw it out at you left and right. He would have cross-examined those people and ripped them to pieces. His closing would have been about three weeks long.

 

These statements referred to testimony regarding Lane, not Wellington. Nonetheless, the comments skirted the line of propriety. However, no objection was made to the comment by either defense attorney and the comment was not clearly capable of producing an unjust result.

In addressing whether Wellington was the driver of the Pontiac, the prosecutor stated: "So you're going to have to believe that another black male was at the deli within that seven mile stretch[.]" Wellington objected on the ground that there was no testimony that a black male was at the deli. The court sustained the objection and instructed the jury: "The objection . . . is sustained. There was no testimony that at the scene there was a black male." It must be assumed that the jury faithfully followed that admonition. See State v. Manley, 54 N.J. 259, 271 (1969).

Finally, the prosecutor told the jury that Kocher admitted, under his questioning, that the white male was older and taller than she had originally described. Lane objected, claiming that the statement was manufactured. The court overruled the objection finding that the statement was fair comment, but instructed the jury:

[Lane's attorney] has a different recollection as to what Ms. Kocher said than the prosecutor does. Remember what I told you before . . . it's not [the attorneys'] recollection, it's your recollection, okay
. . . . [U]ltimately . . . it's your recollection, ladies and gentlemen of the jury.

 

 

There is nothing to indicate that the jury did not faithfully follow that admonition. See ibid.

C.

Lane claims that the court's supplemental instruction to the jury regarding simulated possession of a weapon was inadequate because it omitted language required by case law. Wellington claims that the charge did not reflect the proofs offered at trial and interjected a new element into the case, simulated possession, when the matter had been tried on actual possession.

After a charge conference that was not transcribed, the parties raised no objection to the court's proposed charge. The court then instructed the jury:

In this case it is alleged that the defendant Lane was armed with a deadly weapon while in the course of committing the robbery. . . .

 

A deadly weapon is any firearm or other weapon, device, instrument, material or substance which in any manner is used or intended to be used, is known to be capable of producing death or serious bodily injury, or which if in the manner it is fashioned to lead the victim reasonably to believe that it is capable of producing death or serious bodily injury.

 

Here the State alleges that the defendant Lane was armed with a type of firearm. Firearm means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle.

During deliberations, the jury asked the court, "If somebody is simulating a weapon during a robbery is that considered armed? In cases where a toy gun is used is that also considered armed?" Defendants objected to a simulated weapon instruction because they had not addressed the elements required for simulated possession in their summations and because the case had been tried on the theory that Lane had actually possessed a weapon. They argued that to permit the jury to consider this theory would be fundamentally unfair. The prosecutor denied that there was any new theory, stating that Jignesh Patel believed the robber had a gun, and maintained that anything simulated to look like a gun was encompassed by that testimony.

The court answered the jury's question by re-reading part of the charge it had already given them:

The answer is not a yes or no answer, okay. Let me explain it to you. I'm going to go back. I'm not going to read the whole charge on robbery to you, but I'm going to read to you what I believe is pertinent. And, basically, I defined deadly weapon and I said this: A deadly weapon is any firearm or other weapon, device, instrument, material or substance, which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury; or which in the manner it is fashioned would lead the victim reasonably to believe it was capable of producing death or serious bodily injury.

 

So the answer to your question is not yes or no. The answer to your question is this: Or which in the manner it is fashioned would lead the victim reasonably to believe it is capable of producing death or serious bodily injury.

 

Lane's attorney claimed that the court's answer was "truncated" and "not a correct statement of the law." Less than forty-five minutes later, the jury returned with its verdict.

Appropriate and proper jury instructions are essential to a fair trial. State v. Collier, 90 N.J. 117, 122 (1982). When a jury requests clarification, it is the court's obligation to clear up the confusion. State v. Savage, 172 N.J. 374, 394 (2002). In reviewing the trial court's response, it must be determined whether the court erred and, if so, whether the error undermined the confidence that the deliberative process produced a just result. State v. Lykes, 192 N.J. 519, 537 (2007).

Robbery is a first-degree offense if the defendant is armed with, or uses or threatens the immediate use of, a deadly weapon. N.J.S.A. 2C:15-1(b). A "deadly weapon" is defined as

any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.]

 

[N.J.S.A. 2C:11-1(c).]

If a defendant does not actually possess a firearm or other weapon in the course of a robbery, the State must prove that there was some tangible object possessed by the defendant that the victim believed to be a deadly weapon; a threat or reference to a gun alone is not enough. State v. Hutson, 107 N.J. 222, 227 (1987). The victim's subjective belief that the tangible object was a deadly weapon must have been reasonable under the circumstances. Ibid.

In Harris, supra, 357 N.J. Super. at 544, we addressed the question of what instruction the jury should be given when an armed robbery charge is predicated on simulated possession of a deadly weapon. We held that the jury should be told that a threat or reference to a gun alone is not enough, but rather that there must be some tangible object possessed by the defendant that the victim believed to be a deadly weapon. Id. at 545.

Here, the prosecutor told the jury in summation:

Mr. Patel testified that with the right hand, the gun was clearly outside the sweatshirt. . . . [H]e saw the wooden handle and he saw what was outside pointing at him, but he couldn't tell the color
. . . . And then when the man reached over to grab the money he heard the metal . . . clunk on the [counter]. He was asked . . .
are you sure it wasn't the zipper. . . . No, it was a hard metal against metal and he saw the gun.

 

Whether Lane possessed a deadly weapon was a question of fact for the jury. No evidence was introduced that would have led the jury to conclude that there was simulated possession of a weapon. Jignesh Patel described the object in Lane's right pocket as looking like a gun. The State did not argue that defendant simulated a weapon or possessed an item that was made to appear as a weapon.

We find no error in the trial court's supplemental robbery instruction. The State's theory was not predicated on simulated possession of a deadly weapon. Rather, it was predicated on actual possession of a deadly weapon. The instruction adhered to the statutory definition of N.J.S.A. 2C:11-1(c), noted above. It also was in accord with the Model Jury Charge (Criminal), "Robbery in the First Degree" (2012).

D.

Wellington maintains that the court erred in not permitting him to proceed pro se. We reject this argument, as Wellington did not assert his right to proceed pro se in a timely manner.

In the middle of trial, Wellington told the court that his attorney never spoke to him about certain witnesses he had wanted to call to testify, and that she had told him that she was not planning to cross-examine certain witnesses that he wanted cross-examined. Wellington then told the court that he had told his attorney that if she did not comply with his requests he would make a motion to represent himself pro se.

The court responded that Wellington should have made such a motion "a long time ago." During the ensuing colloquy, Wellington stated that "I feel that there weren't important issues brought up thus far or certain questions . . . that are very obvious questions that should have been asked." He added that he had a "whole notebook full" of questions that he thought should have been asked. The court responded that Wellington was not going to be permitted to represent himself in the middle of trial and that he should confer more with his attorney.

Criminal defendants have a constitutional right to represent themselves in criminal prosecutions if they voluntarily and intelligently elect to do so. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975); State v. Crisafi, 128 N.J. 499, 508-09 (1992). It is for the trial court to determine whether an accused has knowingly and intelligently waived that right and to establish the waiver on the record. Crisafi, supra, at 509. "However, because of the importance of trial counsel to the criminal justice process, the courts must indulge in every reasonable presumption against waiver." State v. Ortisi, 308 N.J. Super. 573, 587 (App. Div.), certif. denied, 156 N.J. 383 (1998).

Disagreement over strategy does not rise to the level of good cause for substituting the defendant for counsel. Crisafi, supra, 128 N.J. at 518. Moreover, the decision to seek pro se representation must be exercised in a timely fashion. State v. Buhl, 269 N.J. Super. 344, 362 (App. Div.), certif. denied, 135 N.J. 468 (1994). "The right of self-representation is not a license to disrupt . . . a trial in progress." Ibid. Rather, "a request for self-representation must be made before meaningful trial proceedings have begun." Id. at 363.

In State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div.), certif. denied, 170 N.J. 210 (2001), we held that the trial court did not abuse its discretion in denying the defendant's request to proceed pro se when the request was made after jury selection but before opening statements had been made. Cf. State v. Thomas, 362 N.J. Super. 229, 240 (App. Div.) (assertion of right to self-representation made six weeks prior to trial was timely), certif. denied, 178 N.J. 249 (2003).

Citing Thomas, Wellington claims that the timing of the request to proceed pro se is only one factor that a court must consider in ruling on such a motion. However, in Buhl v. Cooksey, 233 F.3d 783, 797 n.16 (3d. Cir. 2000), cited by the panel in Thomas, the court noted that the right of self-representation is curtailed when the pro se request takes place while the trial is in progress, as occurred in this case.

We find no abuse of discretion in the trial court's decision to deny Wellington's request to proceed pro se.

E.

Lane contends for the first time on appeal that the court's jury instruction on the in-court identification was improper because it failed to inform the jury that, in addition to being identified as the ones who had fled from the vehicle, defendants also had to have committed the armed robbery. Lane also claims that the charge was not tailored to the facts of the case and that the identification had been made under suggestive circumstances.

As to identification, the court instructed the jury:

All right, identification, in-court identification only. The defendants as part of their general denial of guilt contend that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that either of them are the persons who committed the alleged offense.

 

The burden of proving the identity of a person who committed the crime is upon the State. For you to find either of the defendants guilty the State must prove beyond a reasonable doubt that this person is the person that committed the offense. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether the State has proven each and every element of the offense beyond a reasonable doubt; but also whether the State has proven beyond a reasonable doubt that either of the defendants are the persons who committed it.

 

The State has produced testimony from Trooper Stafford and Trooper Fuhrmann who identified each of the defendants as they fled the suspected vehicle. . . .

 

It is your function to determine whether the identification of each of these defendants is reliable and believable, or whether it is based upon mistake, or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that each defendant is the person who fled the suspected vehicle. . . .

 

Although nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. . . .

 

In deciding what weight, if any, to give the identification testimony you may consider the following factors:

 

(1) the witness's opportunity to view the person who fled from the suspect's vehicle;

 

(2) the witness's degree of attention of the perpetrator at the time;

 

(3) the accuracy of any description the witness gave prior to identifying the perpetrator;

 

(4) the degree of certainty expressed by the witness in making that identification;

 

(5) the length of time between the witness's observation of the perpetrator and the identification;

 

(6) the circumstances under which the identification was made; and any other factor in the evidence or lack of evidence in the case which you consider relevant in your determination as to whether there was an out-of-court identification was [sic] reliable.

 

. . . .

 

If after considering all the evidence you determine that the State has not proven beyond a reasonable doubt . . . that each of the defendants was the person that committed this offense, you must find them not guilty. On the other hand, if after considering all of the evidence you are convinced beyond a reasonable doubt that each defendant was correctly identified, you will then consider whether the State has proven each and every element of the offense charged against each

defendant beyond a reasonable doubt.

 

Neither defendant objected to the charge, and we employ the plain error standard. In considering a jury charge, plain error is

legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

 

A court's jury charge should be read as a whole to determine its overall effect and whether there was any error. State v. Torres, 183 N.J. 554, 564 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). When identification is a key issue, the trial court must instruct the jury on identification. State v. Green, 86 N.J. 281, 291-92 (1981). An appropriate charge should include that the State's burden of proof on the issue of identification is beyond a reasonable doubt, and set forth the respective factual contentions relating to witness descriptions and identifications. Id. at 293. The failure to provide an identification instruction in conformity with Green does not rise to the level of plain error where the State's evidence provides the jury with strong corroborative evidence of identification, such as testimony by a co-defendant. State v. Gaskin, 325 N.J. Super. 563, 573-74 (App. Div. 1999), certif. denied, 164 N.J. 190 (2000).

Lane claims that the court erred in equating the testimony of Mistretta and Fuhrmann that defendants had fled the vehicle with their involvement in the robbery. However, the court twice told the jury that, to find defendants guilty, they had to determine, beyond a reasonable doubt, that not only were defendants the persons who had fled in the vehicle, but that they were the ones who had robbed the deli.

Lane references the model jury instruction in effect at the time of the trial3 to argue that the court erred by not instructing the jury to consider the suggestive nature of Mistretta's and Fuhrmann's identifications of defendants at the time they were arrested. However, the model charge stated that the judge "may" comment on evidence relating to a witness's out-of-court identification of the accused "[i]f necessary or appropriate for purposes of clarity[.]" See Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (2007).

Lane now claims that because each defendant was handcuffed at the time Fuhrmann and Mistretta first identified them, the court should have asked the jury to consider whether their identification was unduly suggestive. Lane did not challenge the identification at trial and never suggested that the out-of-court identification tainted the troopers' in-court identification. A defendant who fails to make an objection to identification testimony at trial "is in no just position to make objection on appeal[.]" State v. Edge, 57 N.J. 580, 587 (1971). Here, the troopers simply saw defendants after they had been taken into custody. Therefore, the court's failure to charge the jury as to suggestive identification was not error, let alone plain error.

F.

Wellington argues that the court erred in not invoking, sua sponte, Rule 1:7-5 to reverse his convictions and grant a new trial because the prosecutor's assertion in closing argument that the vehicle had been stolen violated the court's ruling that the theft claim was not in the case and was not supported by the evidence.

After the State had agreed to dismiss the receiving stolen property count, the court ruled, during McCormick's testimony, that because that count had been dropped, the prosecution could not "get into the car being stolen" but that it could "bring out" that the license plate had been stolen. In summation, the prosecutor told the jury:

You had Mr. Tomlin testify, who was the man who said that my license plate was stolen off my truck. He's not charged with stolen [sic], it may not have been, somebody could have took it and gave it to him, who knows. I'm not saying he stole a plate, but that plate was stolen, and Mr. Tomlin said I didn't put that plate on there. But that car was in possession of a woman who was pregnant with his child. Jim McCormick testified to the documents showing that she was the owner of that vehicle and that it was stolen.

 

Rule 1:7-5 provides:

Any error or omission which does not prejudice a substantial right shall be disregarded by the trial court before, during and after trial. The trial court, however, at every stage of the action, including a timely application after trial, may notice any error of such a nature as to have been clearly capable of producing an unjust result, even though such error was not brought to its attention by a party.

 

Under Rule 1:7-5, an error will not warrant reversal unless it was clearly capable of producing an unjust result. State v. Robinson, 200 N.J. 1, 20 (2009). Although the prosecutor did not refer to him by name, given the reference to the "woman who was pregnant with his child," "he" and "his" referred to Wellington and the pregnant woman was his girlfriend, Kendra Thompkins. However, it was not clear whether "it was stolen" referred to the vehicle or the license plate and it is not contested that the license place was stolen. Even assuming the reference could be taken to be to the vehicle in contravention of the court's earlier ruling, the reference was isolated and not clearly capable of producing an unjust result. The court did not err in not invoking Rule 1:7-5. The testimony regarding the stolen license plate was not error, let alone plain error.

 

G.

Lane maintains that the twelve-year sentence imposed was excessive because no one was injured during the robbery, the court failed to merge the conspiracy count into the armed robbery conviction, and failed to take his two minor children into consideration.

Wellington also argues that the court erred in not merging weapons and conspiracy convictions into the armed robbery conviction.

The court found the risk that Lane would commit another offense, his prior criminal record, and the need to deter as aggravating factors. It found no mitigating factors. Lane was sentenced to twelve years on the armed robbery conviction, eighty-five percent without parole, and concurrent five-year sentences on the conspiracy and possession of a weapon for an unlawful purpose convictions.

The court found no mitigating factors and the risk that Wellington would commit another offense, his prior criminal record, and the need to deter as aggravating factors. Wellington was sentenced to a term of twelve years on the armed robbery conviction, eighty-five percent without parole, and concurrent five-year sentences on the conspiracy and possession of a weapon for an unlawful purpose convictions.

An appellate court must determine whether the findings of fact regarding the aggravating and mitigating factors were based on competent and credible evidence in the record, whether the court applied the correct sentencing guidelines enunciated in the Code, and whether the application of the facts to the law constituted such an error of judgment as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).

The State concedes that the conspiracy and weapons convictions should have merged with the armed robbery convictions. Therefore, we remand both judgments of conviction to be amended to reflect that merger.

The record establishes that Lane had various prior convictions for drug possession, theft, and violation of parole. There was support in the record for the court's finding of the aggravating factors.

Lane claims that the court should have considered his two minor children as a mitigating factor. The sentencing range for a first-degree offense is between ten and twenty years. N.J.S.A. 2C:43-6(a)(1). The court sentenced both defendants to twelve-year terms, at the lower end of the permissible range, despite finding that the three aggravating factors predominated.

We are satisfied that neither sentence was manifestly excessive. The convictions of both defendants are affirmed. Both matters are remanded to correct the judgments of conviction to merge the conspiracy and weapons convictions into the armed robbery convictions. We do not retain jurisdiction.

 

1 These appeals, calendared back-to back, are consolidated for purposes of opinion only.

2 State v. Harris, 357 N.J. Super. 532 (App. Div. 2003).

3 The model charge on identification was revised, effective September 9, 2012, to be applied prospectively, in accordance with the Supreme Court's opinion in State v. Henderson, 208 N.J. 208, 302 (2011).