STATE OF NEW JERSEY v. TONY L. BURNHAM

NOT FOR PUBLICATION WITHOUT THE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.

TONY L. BURNHAM,

Defendant-Appellant.

____________________________________

August 14, 2015

Submitted April 20, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-01-0139.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Tony L. Burnham appeals his judgment of conviction for conspiracy and robbery. He challenges the absence of a limiting instruction, and his sentence. We affirm.

I.

We summarize the evidence at Burnham's second trial before Judge Bernard E. DeLury. On August 4, 2009, Barbara Parks arrived at Bally's Casino in Atlantic City to attend a training seminar. At 8:42 a.m., she parked her car in the parking garage. She got out of her car, holding her briefcase, purse, and cellphone. She was approached by a man wearing a black ski mask and a dark-colored hooded sweatshirt. His height and skin tone were consistent with defendant. He told her to get back in her car. He was joined by a second man, who was taller and with a darker complexion,and also wearing a black ski mask and a dark-colored hooded sweatshirt. Parks sat in her car, but keptscreaming. Both men told her to "shut the F up." The second man pointed a gun in Parks' face. The first man punched her in the mouth, and took her briefcase, cellphone, and purse.

Both men fled in a gray Honda while Parks ran through the garage screaming and covered in blood. A Bally's patron saw Parks running and the Honda speeding away. Surveillance cameras videoed defendant and co-defendant Dashand Chase earlier that morning leaving the Honda, entering the casino, and returning to the Honda. The videos showed the Honda driving at 8:37 a.m. to the level of the garage where Parks was robbed, leaving that level while Parks was fleeing at 8:45 a.m., and immediately exiting the garage. The video revealed the Honda's license plate number.

Based on that information, the police were able to determine the Honda was driven by Brandy Wicks. In Wicks' statement to the police, she said the two men were "Pop," whom she identified as Chase, and "Ty," whose identity she claimed she did not know. At trial, Wicks identified "Ty" as defendant, and testified as follows. She drove the Honda to Bally's with defendant, Chase, Ikeeda Drain, and another individual. After Wicks parked in the garage, defendant and Chase got out of the Honda and went into the casino. They later returned to the Honda, and Chase had Wicks drive up a couple of floors. Defendant and Chase again got out of the Honda. When they returned, Wicks did not see anyone wearing a ski mask or carrying a gun. Wicks then drove the group out of the garage in the Honda.

The police located the Honda in Woodbury. In its trunk, officers recovered two black ski masks, each one in a dark-colored hooded sweatshirt, each containing an imitation handgun. Parks identified those items as familiar and consistent with those used in the robbery. Defendant was the sole source of DNA on one black ski mask. On the other black ski mask, Chase was found to be the source of the major DNA profile, and defendant could not be excluded as a contributor. Defendant was a possible contributor of DNA on one of the hooded sweatshirts, and Chase on the other.

The indictment here charged defendant and Chase with first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree robbery, N.J.S.A. 2C:15-1 (count three); and fourth-degree possession of an imitation firearm for unlawful purposes, N.J.S.A. 2C:39-4(e) (count four). Chase was charged in two subsequent indictments with multiple counts of witness tampering.

The indictment here also charged Wicks and Drain with second-degree hindering the apprehension of defendant and Burnham. That count was later amended to a third-degree charge. Prior to trial, the State moved to dismiss the count, and Judge DeLury signed an order dismissing the count.

In the first trial before Judge DeLury, Wicks testified under subpoena. The jury was unable to reach a verdict on the charges against defendant, or on the charge that defendant and Chase conspired to commit robbery. The jury convicted Chase on all other charges.1

Defendant was retried in a second trial before Judge DeLury. Wicks' testimony from the first trial was admitted. Defendant testified that he had simply gone into the casino with Chase, returned to Wicks' car, and gone to sleep, waking up several hours later. Defendant denied any knowledge of the robbery, and claimed he had worn the black ski masks for work, paintball, and hobbies. He also called a former teacher, who testified he was a good, respectful student in eighth grade.

The second jury convicted him of the count one conspiracy. On count two, the jury found he did not threaten the immediate use of a deadly weapon, and thus convicted him of the lesser-included offense of second-degree robbery. The jury convicted him of count three, and acquitted him of count four.

Judge DeLury merged counts one and two into count three, on which he sentenced defendant to seven years in prison with 85% to be served before parole eligibility. Defendant appeals his June 19, 2013 judgment of conviction, raising the following points

Point One - The absence of a limiting instruction concerning the co-defendant's testimony deprived defendant of the right to due process of law and a fair trial.

Point two - a qualitative weighing of the aggravating and mitigating factors does not support the imposition of a seven-year term with an 85% period of parole ineligibility.

II.

Defendant's first claim concerns Wicks, who testified for the State in the first trial. The State again called her to testify for the second trial, but she failed to appear. She could not be located, despite extensive efforts, multiple subpoenas, and a material witness warrant. Over defendant's objection, the trial court found Wicks was unavailable and admitted her prior testimony under N.J.R.E. 804(b)(1)(A). Her testimony from the first trial was read to the second jury.

On appeal, defendant does not challenge the admission of Wicks' prior testimony, but claims the court should have given the Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006). This co-defendant instruction states it "should not be given except upon the request of defense counsel." Id. at 1 n.1. The instruction applies when a State witness "is a co-defendant," or "is a co-defendant and has pleaded guilty prior to defendant's trial," and defines a "co-defendant" as someone "who was [charged with] [indicted for] the crime(s) that defendant is on trial for." Id. at 1. The instruction also applies if a witness "has testified to facts which may show some involvement on his/her part in . . . [the criminal situation out of which the indictment and trial of the defendant arose]." Id. at 1-2.

In the charge conference at the first trial, Judge DeLury raised the co-defendant instruction, noted it should not be given except on request of defense counsel, and asked defendants' attorneys if they wished the instruction to be given.2 Defendant's counsel responded

[DEFENDANT'S COUNSEL]: I'm sorry, you're Honor. That doesn't apply to Brandy Wicks either.

THE COURT: I'll hear argument on it. She was dismissed without agreement with the State, no penal liability any further. I signed the dismissal order, but if you want to advance some theory, I'll be happy to listen to it.

[DEFENDANT'S COUNSEL]: Not at this time, your Honor, but I just like the opportunity to review it.

THE COURT: Let me know.

Defendant's counsel never raised or requested the co-defendant instruction in the remainder of the first trial.

The same counsel represented defendant at the second trial. In the charge conference at the second trial, Judge DeLury again raised the co-defendant instruction, recalling they had discussed it and not given it at the first trial. Defendant's counsel thought she had "argued strenuously at the last trial regarding that and you ruled against me."3 The court and defendant's counsel agreed that neither Wicks nor Drain "received any consideration for their so-called cooperation such as it is in this case." The court noted that the State dismissed the charge against those witnesses "of its own volition," "perhaps because he could then call them and they would no longer have a penal interest in the case."4 The court declined to give the co-defendant instruction because it did not fit the case, commenting: "I'll take your argument as put forward before." Defendant's counsel said, "That's fine, your Honor. I understand."

The court's final comment might preserve an objection if defendant's counsel had requested the co-defendant instruction at the first trial. However, at the first trial defendant conceded that the co-defendant instruction did not apply to Wicks, declined to argue for it, and never requested it.

It is long-established that "'a defendant has a right, upon request, to a specific jury instruction "that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding."'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Begyn, 34 N.J. 35, 54 (1961) (quoting State v. Spruill, 16 N.J. 73, 80 (1954))). "It is, however, 'generally not wise to give such a charge absent a request because of possible prejudice to defendant.'" State v. Shelton, 344 N.J. Super. 505, 520 (App. Div. 2001) (citation omitted), certif. denied, 171 N.J. 43 (2002); accord State v. Artis, 57 N.J. 24, 33 (1970). Thus, "[c]learly 'it is not error, let alone plain error, for a trial judge to fail to give this cautionary comment where it has not been requested.'" Ibid. (quoting Artis, supra, 57 N.J. at 33); see State v. Gardner, 51 N.J. 444, 461 (1968).

Here, defendant's counsel "neither requested those instructions nor did [she] object to the instructions that were given." Adams, supra, 194 N.J. at 208. Therefore, defendant must show plain error. Id. at 207-08. Thus, he "has the burden of proving that the error was clear and obvious," and that it had "the clear capacity to bring about an unjust result." State v. Koskovich, 168 N.J. 448, 529 (2001) (internal quotation marks omitted). We do not find plain error here for several reasons.

First, it is not clear or obvious that the trial court erred in finding the co-defendant instruction was inapplicable to Wicks. Although she had been indicted with defendant, she was not "charged with the same offense[s]" for which defendant was on trial, but with hindering. Begyn, supra, 34 N.J. at 55. That charge had been dismissed before trial with no admission of guilt, so she was not a co-defendant when she testified. Finally, she testified she was not involved in and had no knowledge of the robbery. No witness claimed to the contrary.

Second, it is not clear or obvious that the rationales of the co-defendant instruction applied to Wicks. The purpose of the instruction is to "caution the jury 'regarding the credibility of witnesses who may have a special interest in the outcome of the cause, which might lead to influencing their testimony.'" Adams, supra, 194 N.J. at 208 (quoting Begyn, supra, 34 N.J. at 54). "This special interest comes about by reason of hope, or even bargain, for favor in later prosecution treatment of the witness' own criminal conduct in return for aid in convicting the defendant." Begyn, supra, 34 N.J. at 54.5

Here, the trial court found that Wicks faced no future penal liability by the time she testified at the first trial. As defendant conceded, Wicks had received no consideration for "cooperating." Nor did it appear to the trial court that she was cooperating, as she appeared at the first trial involuntarily and under the compulsion of a subpoena, and did not even appear at the second trial. Thus, it was not clear or obvious Wicks had any reason to seek favor from the prosecution that would give her an interest in the outcome of the trial or influence her testimony. See State v. Nobles, 79 N.J. Super. 442, 448 (App. Div. 1963) (finding a witness "had no special interest in the outcome of Nobles' trial" because the witness had already been sentenced).

Third, examination of Wick's testimony, "'the arguments of counsel,'" and "'all the instructions to the jury,'" shows that the absence of a co-defendant instruction did not have "'the clear capacity to produce an unjust result.'" Adams, supra, 194 N.J. at 207, 209 (citation omitted). Wicks's testimony was largely the same as defendant's testimony and the undisputed video evidence: defendant, Wicks, Chase, and the others drove to Atlantic City as part of Wicks' birthday celebration; defendant and Chase gambled in the casino and returned to the Honda; the Honda drove up two floors; and they left the garage after a few minutes.

On direct, Wicks stated that during the few minutes both Chase and defendant had gotten out of the Honda and returned. However, defendants' counsel "thoroughly cross-examined [Wicks] to challenge [the] credibility" of that statement. See Adams, supra, 194 N.J. at 208. On cross, Wicks stated: officers said they would return her Honda and not charge her if she revealed the identity of "Pop" and "Ty";6 in her statement to police, she said only Chase got out and returned; after giving her police statement, she was charged with second-degree hindering apprehension, and was told she faced a possible ten years in prison and would most likely go to jail; the charge was dismissed right before the first trial; and she then became a witness for the State. "[T]he jury could not have misunderstood" that Wicks' testimony should be carefully scrutinized. State v. Harris, 156 N.J. 122, 180 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001).

Indeed, defendant's counsel asserted in her opening and closing that Wicks had testified on cross only Chase got out of the Honda and returned. Counsel argued that the prosecutor had lumped the defendants together in questioning Wicks. The prosecutor's closing had only a few sentences about Wicks, noting her testimony differed on direct and cross.

Moreover, the court gave the standard credibility instructions both at the beginning and the end of trial, see Adams, supra, 194 N.J. at 209, twice telling the jury it could consider "the witness' interest in the outcome of the trial." Model Jury Charge (Criminal), "Instructions After Jury Is Sworn" (2012); Model Jury Charge (Criminal), "Criminal Final Charge" (2002). The court twice told the jury to apply those instructions to Wicks. See Artis, supra, 57 N.J. at 33. The court twice told the jury that it "will not be able to consider her demeanor and appearance during testimony," that "[t]his type of read back testimony was a lesser form of testimony when compared to live testimony," and that "[t]his factor alone may allow you to discredit her testimony." Thus, "[i]t was obvious to any juror that [Wicks] was a witness whose testimony called for careful scrutiny" even without "the accomplice-credibility instruction." Harris, supra, 156 N.J. at 182.

Finally, DNA, physical evidence, videos, and "witnesses other than [Wicks] provided ample evidence to implicate defendant" as one of the two robbers. Harris, supra, 156 N.J. at 180. Under all those circumstances, we are satisfied that any "'error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial.'" Adams, supra, 194 N.J. at 209 (citation omitted); see also Artis, supra, 57 N.J. at 33. That remains true even if we assume defendant's counsel had made a request, Harris, supra, 156 N.J. at 180, and even if "the trial court should [have] instruct[ed] the jury that it must carefully scrutinize [Wicks'] testimony," Adams, supra, 194 N.J. at 208.

III.

Defendant also challenges his sentence. "[A]ppellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). An appellate court is "'bound to affirm a sentence, even if [it] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted). We must hew to that standard of review.

At sentencing, the trial court merged defendant's conviction for first-degree conspiracy to commit armed robbery into his second-degree robbery offense. The court recognized he had had limited contact with the criminal justice system, with charges for robbery, aggravated assault, and burglary having been dismissed. Nonetheless, the court noted defendant had a recent conviction for simple assault, an active domestic violence complaint for assault, and a pending municipal court matter. As a result, the court gave some but diminished weight to mitigating factor seven, that "defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44-1(b)(7).

Citing defendant's record, his capacity for violence, and his alcohol abuse, the trial court gave significant weight to "[t]he risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). Stressing that defendant's violent, predatory, and vicious crimes against Parks caused physical and ongoing emotional injuries that would plague her for years to come, and the strong need to deter him from such behavior in the future, the court gave great weight to "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The court nonetheless imposed a sentence below the midpoint for a second-degree offense.

Defendant argues the trial court gave too much weight to these aggravating factors, and too little weight to the mitigating factor. However, "the weighing of aggravating and mitigating factors" is left to the "sound discretion" of the trial court. State v. Jarbath, 114 N.J. 394, 402 (1989). As there was "sufficient evidence to support its findings with respect to aggravating and mitigating factors," ibid., and the court adequately explained how it weighed those factors, we find no "abuse of discretion," State v. Robinson, 217 N.J. 594, 603 (2014); cf. State v. Case, 220 N.J. 49, 66, 68 (2014).

The trial court properly rejected defendant's claims that his conduct was "unlikely to recur" and that he was "unlikely to commit another offense," N.J.S.A. 2C:44-1(b)(8),(9), based on its reasons for finding he posed a risk of committing another offense. See State v. Bieniek, 200 N.J. 601, 610 (2010). The court considered his letters of support and character references, but found he showed one face to his supporters and another, callous face to Parks. The court rejected his claim his incarceration would result in "excessive hardship" for his sister's family, N.J.S.A. 2C:44-1(b)(11), finding his alleged financial support was minimal or non-existent given his lack of steady employment. We find no abuse of discretion in this seven-year sentence.

Affirmed.

1 We are simultaneously affirming Chase's judgments of conviction in State v. Chase, No. A-1209-12 (App. Div. Aug. 14 2015).

2 Chase's counsel indicated the instruction would apply only to State witness Darnell Dumpson, who had pled guilty to conspiring with Chase to commit witness tampering. Chase's counsel requested, the court agreed to give, and later gave the instruction referencing Dumpson. Dumpson did not testify in the second trial.

3 Defendant's counsel was apparently recalling her lengthy argument in the first trial that the court should give the Model Jury Charge (Criminal), "Witness Immunity" (1991), regarding Wicks. The court declined because it found Wicks had not been given immunity. The court instead crafted and gave a credibility instruction stating that the jury could consider that Wicks had been charged, that the charge had been dismissed, and that she was testifying involuntarily under subpoena. Neither the witness immunity instruction nor that credibility instruction were requested at the second trial, and neither are at issue on this appeal.

4 In the discussion of the witness immunity instruction at the first trial, the prosecutor explained he dismissed the charge against Wicks because she "wouldn't talk to me," "I needed her statement," and "[i]f I put her on the stand, I could play the statement."

5 Thus, the Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006), provides

The law requires that the testimony of such a witness be given careful scrutiny. In weighing his/her testimony, therefore, you may consider whether he/she has a special interest in the outcome of the case and whether his/her testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal.

It was never suggested Wicks had feelings of revenge or reprisal against defendant.

6 In his pro se brief, defendant claims this violated the federal bribery statute, 18 U.S.C.A. 201. He relies on the vacated decision in United States v. Singleton, 144 F.3d 1343, 1361 (10th Cir. 1998), but its rationale was rejected en banc, United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir.), cert. denied, 527 U.S. 1024, 119 S. Ct. 2371, 144 L. Ed. 2d 775 (1999), and by other courts of appeals, United States v. Souffront, 338 F.3d 809, 827 (7th Cir. 2003), cert. denied, 540 U.S. 1201, 124 S. Ct. 1465, 158 L. Ed. 2d 120 (2004).