STATE OF NEW JERSEY v. ELIJAH A. SUMLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIJAH A. SUMLER, a/k/a

OWEN A. SMITHS,

ALEXANDER SUMLER,

Defendant-Appellant.

___________________________________________

February 5, 2014

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-01-0090.

Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief).

Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

PER CURIAM

Defendant Elijah A. Sumler was charged with the following offenses: (1) second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1b; (2) first-degree armed robbery, N.J.S.A. 2C:15-1; (3) second-degree burglary, N.J.S.A. 2C:18-2b(1); (4)fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); (5) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and (6) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.

Defendant and co-defendant Anneris Deleon were tried before Judge Peter V. Ryan and a jury. At the close of the State's case, co-defendant's motion for a judgment of acquittal was granted. At the conclusion of the trial, the jury found defendant guilty of counts one and four, and reported to the judge it was unable to reach an unanimous verdict as to the remaining counts. The judge declared a mistrial as to counts two, three, five, and six, which the judge later dismissed on the State's motion.

On April 30, 2012, defendant was sentenced. The judge granted the State's motion to impose a discretionary extended-term sentence on count one, the conspiracy to commit robbery charge. Defendant qualified for such sentencing as a persistent offender. See N.J.S.A. 2C:44-3(a). The judge imposed a fifteen-year sentence on count one, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), and an eighteen-month sentence on count four, concurrent to count one.

I.

We summarize the salient facts elicited at the seven-day trial, and present additional facts and procedural history in the context of our legal discussion.

On August 25, 2010, Chiquita Gaines was at home in her apartment at 744 South Nineteenth Street, Newark, with her two-year-old daughter. Gaines lived in the apartment with her husband and four children. She had just given her daughter a bath and was in the back bedroom with the child when she heard the exterior doorbell to the building ring. Immediately thereafter, Deleon entered the unlocked door to Gaines's apartment.

Deleon had been a good friend of Gaines, a bridesmaid in Gaines's wedding, and had lived with Gaines and her family. However, on the evening of August 22, Gaines and Deleon got into an argument over money which led to a falling out between them, and Deleon moved out. After the argument, Gaines "wasn't expecting to hear or see [Deleon] again." Upon entering, Deleon asked Gaines, "where's everybody at," and Gaines replied that her family was at football practice. Deleon told Gaines she was going to the store, and asked her if she wanted anything picked up. When Gaines replied, "no," Deleon left the apartment. Gaines used her cell phone to text her sister-in-law Nina Waters, "guess who just walked through my door?" Waters replied, "who," and Gaines stated, "you already know who. Netti."1 Waters texted back, "LOL, what is she coming by for?"

According to Gaines's initial testimony, once Deleon left, she looked up and there were three males standing in her bedroom door who then proceeded to rob her at gun point. Gaines had previously given a statement to the police that no more than ten seconds had passed between the time that Deleon left her apartment and when she saw the intruders standing in her bedroom doorway. However, she had also previously told the police that "three to five minutes" had elapsed between Deleon's departure and the arrival of the robbers. She later agreed in her testimony to the jury that the time between the two events was "five minutes." She further testified that during that time, she and Waters exchanged at least "five texts back and forth" before the assailants entered her apartment.

The three intruders were wearing hooded sweatshirts with the hoods tied "real tight" so as to obscure their faces. One of the men wore a scarf over his face extending over the bridge of his nose and covering the bottom of his face. Gaines saw a portion of his nose because the scarf had fallen slightly. The scarfed intruder, who Gaines identified as the defendant, demanded "where's the shit at" and pulled a handgun from his sweatshirt pocket and pointed it at Gaines. In an earlier statement to police, Gaines reported that the robber actually asked, "where's it at?" The gun was wrapped in a scarf or bandana with the barrel exposed. Gaines not only recognized defendant's face, even though obscured by the scarf, but also his voice. Gaines testified that she knew defendant well because he was the father of one of the children living with Deleon, and had interacted with him on numerous occasions.

Gaines grabbed her daughter from the floor, where the child was playing, and replied, "I don't know what you are talking about." The other two intruders went to the bedroom closet and ransacked it, taking a Northface jacket and a leather trench coat while defendant held the closet door open. Defendant and the two other intruders left the bedroom and went into the living room. Defendant then returned to the bedroom, jumped over the bed, and rifled through Gaines's pocketbook and a drawer. He took money from Gaines's pocketbook, the television on the dresser, her cell phone, and a computer. The perpetrators also took an Xbox gaming console. Gaines did not see how many men were in the living room because she remained in the bedroom. Gaines heard the apartment close and heard the perpetrators going down the steps.

As this incident was transpiring, Michael Higgins was lifting weights with six or seven other people in the garage of the house across the street from Gaines's apartment. Higgins noticed four men "coming up the [street] with hoodies and masks on," which he found to be suspicious given that it was August. He did not see any of their faces but the men "look[ed] to be up to no good." Nevertheless, he returned to lifting weights and did not see them go into Gaines's apartment building.

Ten minutes later, Higgins saw the same group of men running down the street holding a monitor, a flat screen television, a DVD player, an Xbox gaming system, and "things of that nature." Higgins recalled that Gaines ran out of the building less than thirty seconds after he saw the four men running.

Gaines was clutching her baby. She was visibly upset and hysterical. She told Higgins she had just been robbed. Higgins and his friend ran down the street after the men but they had disappeared by the time Higgins reached the corner. Higgins and three of his companions used their cell phones to call 9-1-1 and one of the individuals gave Gaines a cell phone which she used to make a call.

Gaines used the phone to call Waters. Gaines recalled that she was "hysterical" and "not in the right state of mind" when she placed the call. Waters received the call about ten to fifteen minutes after she and Gaines finished texting each other about Deleon's unannounced visit. Waters did not recognize the phone number, but when she answered her phone, she heard Gaines say, "Mancy,2 just robbed my house." Waters recalled that Gaines said, "this bitch just had Mancy rob my f**king house." Gaines was taken to the police station where she gave a statement and identified single photographs of Deleon and defendant.

Waters testified at trial that she was certain that she had related this declaration verbatim to the assistant prosecutor.3 Creegan testified based on her recollection of the conversation and her review of the memo that Walters said Gaines stated to her: "Mancy just robbed me." Creegan did not recall Waters using the term "bitch." The judge admitted Creegan's testimony as a prior inconsistent statement of Waters. The gun and the proceeds of the robbery were never recovered. Defendant did not testify, or call any witnesses.

Prior to trial, the prosecutor moved to admit Gaines's statement made to Waters on the telephone immediately following the robbery that "Mancy just robbed me." The prosecutor asserted that the statement was admissible as a prior identification, N.J.R.E. 803(a)(3), and as a present sense impression, N.J.R.E. 803(c)(1). Defense counsel argued that the statement did not fall within any of the hearsay exceptions because the conflicts in the anticipated testimony made it impossible to establish the timeline of events.

The judge made a preliminary ruling, subject to hearing the actual testimony of witnesses, that the statement met the criteria for an excited utterance, N.J.R.E. 803(c)(2), and was therefore admissible.4 The judge determined that Gaines's telephone call to Waters was made immediately after the robbery while she was still under the stress of the robbery and without reasonable time for her to fabricate or deliberate. At trial, the hearsay statement was admitted.

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

POINT I

CHIQUITA GAINES' IDENTIFICATION SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE BECAUSE IT WAS MADE AFTER AN OPPORTUNITY TO DELIBERATE.

POINT II

CHIQUITA GAINES' STATEMENT WAS NOT ADMISSIBLE UNDER THE "PRIOR IDENTIFICATION" EXCEPTION TO THE PROHIBITION AGAINST HEARSAY BECAUSE IT WAS NOT MADE UNDER CIRCUMSTANCES PRECLUDING UNRELIABILITY.

POINT III

SUMLER'S SENTENCE WAS EXCESSIVE IN LIGHT OF THE FACT THAT HE WAS NOT CONVICTED OF FIRST-DEGREE ROBBERY.

We reject all of the arguments presented by defendant. Accordingly, we affirm his conviction and sentence in all respects.

II.

Hearsay is generally not admissible. N.J.R.E. 802. Excited utterances are an exception to the rule. See N.J.R.E. 803(c)(2). An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2).

The trustworthiness of an excited utterance derives from its relation to the event from which it emanates, such that "[i]f the circumstances reveal that there was sufficient time to contrive or devise a self-serving falsehood, admissibility should be denied. It must appear that the statements were unpremeditated emanations of the event and so connected with it as to preclude the idea that they were products of calculated policy." Cestero v. Ferrara, 57 N.J. 497, 502 (1971). The stress or shock of the event must "still the reflective faculties" of a person so that the utterance is a "spontaneous and sincere response to the . . . external shock." State v. Branch, 182 N.J. 338, 365 (2005) (internal citation and quotations omitted).

Various factors should be considered to determine whether there was an opportunity to fabricate or deliberate: (1) the element of time; (2) the circumstances of the incident; (3) the mental and physical condition of the declarant; (4) the nature of the utterance; (5) the continuing influence of the excitement caused by the external shock; and (6) whether the statement was in response to questions. Id. at 366; State v. Long, 173 N.J. 138, 159 (2002). Although there are multiple factors, crucial to this inquiry is whether the declarant is still under a continuing state of excitement when the statement is made; it is that condition which provides trustworthiness. State v. Cotto, 182 N.J. 316, 328 (2005); State v. Lyle, 73 N.J. 403, 413 (1977); State v. Baluch, 341 N.J. Super. 141, 182 (App. Div.), certif. denied, 170 N.J. 89 (2001).

Applying these principles here, we have no hesitancy in concluding that the record fully supports Judge Ryan's finding that Gaines was still under the stress of being robbed at gun point in her apartment as she was caring for her two-year-old child and that she did not have sufficient time to deliberate about or fabricate what she said to Waters.

Defendant argues that it is significant that Gaines made the statement ten to fifteen minutes after the last text with Waters and therefore there may have been some minutes after the robbery for Gaines to compose herself. Higgins stated that he saw Gaines, clutching her baby, run from the building just thirty seconds after seeing the men run down the street. More tellingly, he testified to Gaines's agitated condition, as she told him she had just been robbed.

Any minor time discrepancy is insignificant. It is equally insignificant that Gaines's and Waters's recollection of the statement contained some minor inconsistencies. The record supports the finding that Gaines remained under the stress of the robbery at the time of this statement, which evinces its trustworthiness.

Defendant contends that we should not consider the admissibility of the statement as prior identification. N.J.R.E. 803(a)(3). Although urged by the prosecutor as an alternative basis for admission, the judge did not reach this argument nor make an evidential ruling on this basis. Therefore, we should stay our hand and forego addressing this issue. See State v. Rockford, 213 N.J. 424, 451 (2013).

Finally, defendant contends that his sentence is excessive, arguing that since he was not convicted of first-degree robbery, a sentence in the first-degree range is unjust. Further, although defendant does not contest that his four prior indictable convictions provided the condition precedent as a "persistent offender" for an extended term, he asserts his history reflects an almost complete lack of violent offenses.5 Defendant argues this fact should have positively influenced the sentence imposed and the term should have been no greater than ten years.

In State v. Bieniek, 200 N.J. 601, 608 (2010), our Supreme Court again noted that the role of an appellate court is not to substitute its judgment about appropriate sentencing factors for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

To impose an enhanced sentence, the judge must (1) determine if the defendant is eligible within statutory criteria of N.J.S.A. 2C:44-3(a);6 (2) determine if an extended sentence will be imposed; (3) weigh aggravating and mitigating factors to determine the base term of the extended sentence; and (4) determine if a term of parole ineligibility will be imposed. State v. Pierce, 188 N.J. 155, 164 (2006); State v. Dunbar, 108 N.J. 80, 89 (1987). The court is not required to sentence defendant to an enhanced term. Pierce, supra, 188 N.J. at 169.

In this case, the judge reviewed defendant's substantial prior criminal record and found him to be a persistent offender in accordance with the terms of the statute. He concluded that an extended term of imprisonment should be imposed. The judge found applicable aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The judge found no mitigating factors applicable under N.J.S.A. 2C:44-1(b). The judge explained his findings on the record. We find no abuse of discretion in the judge's findings with respect to aggravating and mitigating factors, see Bieniek, supra, 200 N.J. at 610-11, or ultimately the fifteen-year sentence imposed. State v. Roth, 95 N.J. 334, 364-66 (1984).

Here, the judge followed the statutory provisions and sentenced defendant within his discretionary authority. Finally, the judge noted that defendant's conviction on count one was subject to a mandatory period of parole ineligibility under NERA. We are satisfied the sentence imposed was well-supported by the record and discern no basis to disturb this sentence on appeal.

Affirmed.

1 "Netti" is Deleon's nickname.

2 "Mancy" is defendant's nickname.

3 Assistant Prosecutor Tara Creegan witnessed a pretrial telephone conversation between the trial assistant prosecutor and Waters on October 25, 2011, and thereafter drafted and signed a written memorandum of the conversation. Creegan testified based on her recollection of the conversation and her review of the memo.

4 The judge determined that Gaines's statement to Waters did not qualify as a present sense impression. However, the judge did not rule on the State's contention that Gaines's statement was also admissible as a prior identification.

5 The record indicates that defendant was previously found guilty in municipal court of the offense of "assault or other disorderly conduct."

6 N.J.S.A. 2C:44-3(a) provides in part:

A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.