STATE OF NEW JERSEY v. LOUIS LUIBIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6762-03T46762-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS LUIBIL,

Defendant-Appellant.

______________________________________

 

Submitted October 19, 2005 - Decided

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Indictment No. 03-04-0383.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and on

the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Christopher W. Hsieh, Senior Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luis Luibil appeals from a final judgment of conviction and sentence. Tried to a jury, defendant was convicted of carjacking, a crime of the first degree, contrary to N.J.S.A. 2C:15-2(a)(1). The trial judge granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). He sentenced defendant to a term of thirty-four years, eighty-five percent of which must be served without possibility of parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.1. The court also imposed a $100 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. This appeal followed. Finding no harmful error or abuse of discretion, we affirm.

On November 26, 2002, John Juby took his mother to a shopping center in Totowa. Mrs. Juby, who ambulates with the assistance of a walker, waited by the curb while her son got their car, a Taurus. He returned, left the car in idle and got out to help her into the passenger seat. While John Juby was loading the walker and packages into the trunk, defendant jumped into the driver's seat. Mrs. Juby had not yet pulled her legs around and into the car, and defendant jerked the car back-and-forth in an apparent effort to unseat her. When he was not successful, he drove away. Mrs. Juby was ejected and dragged a short distance. Neither John Juby nor Mrs. Juby were able to give the police more than a general description of the assailant.

The day after the carjacking, the police contacted defendant's sister and notified her that her car had been found abandoned in the parking lot of the same shopping center. There was no fuel in the tank. The day before the carjacking, she had loaned it to her brother.

Two days after the carjacking defendant approached Irma Nieves in the parking lot of a supermarket. She watched as he left the lot in a Taurus.

Defendant was apprehended minutes later. A Belleville police officer saw him drive the Taurus over a double-yellow line while passing a bus. He attempted to follow the car's route and found it parked and unoccupied about eight blocks away. A second officer apprehended defendant. He eventually admitted that he had been driving the Taurus on the day of his arrest, but he denied knowing anything about the Jubys. An observant bystander who had witnessed defendant take the Jubys' car identified him as Mrs. Juby's assailant.

Because defendant had attempted to take Mrs. Nieves' purse, the court conducted a hearing out of the presence of the jury pursuant to N.J.R.E. 104 to consider the scope of her testimony. The judge instructed her not to mention defendant's attempt during her testimony. Despite the judge's clear direction, when asked if she had spoken to defendant, Mrs. Nieves explained that he spoke to her and she screamed.

The defendant moved for a mistrial. The trial judge denied the motion and instead gave a curative instruction. He directed: "I want to instruct you to disregard that reference to her screaming . . . . Obviously, there is something that went on between the two of them, and whether it was a disagreement about a parking space or whatever it may have been, it is not relevant to whether or not there was a carjacking committed on Eleanor Juby . . . . That's why we say to you to disregard it." In addition, in his final charge to the jury the judge reiterated the narrow and limited purpose of Nieves' testimony.

Defendant raises the following issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING

DEFENSE COUNSEL'S MOTION FOR A MISTRIAL

AS A RESULT OF TESTIMONY VOLUNTEERED BY

A STATE'S WITNESS WHICH TENDED TO

CONNECT THE DEFENDANT WITH OTHER,

UNRELATED CRIMINAL CONDUCT.

II. THE PROSECUTOR'S SUMMATION EXCEEDED THE

BOUNDS OF PROPRIETY. (PARTIALLY RAISED

BELOW)

III. THE TRIAL COURT ERRED IN RULING THAT

THE DEFENDANT'S PRIOR CONVICTIONS WERE

ADMISSIBLE TO ATTACK CREDIBILITY. (NOT

RAISED BELOW)

IV. THE DISCRETIONARY 34 YEAR EXTENDED TERM

IMPOSED BY THE TRIAL COURT WAS

UNCONSTITUTIONAL SINCE IT EXCEEDED THE

MAXIMUM SENTENCE AUTHORIZED BY THE

JURY'S VERDICT.

V. THE SENTENCE IMPOSED WAS MANIFESTLY

EXCESSIVE.

Our review of the record leads us to conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add a brief explanation for that conclusion with respect to each point raised.

Mistrial is a discretionary and extraordinary measure justified only when based upon "a sufficient legal reason and a manifest or absolute or overriding necessity." N.J.S.A. 2C:1-9d(3); see State v. Allah, 170 N.J. 269, 280 (2002). The authority to declare a mistrial "ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, 165 (1824). Where the error is curable by a cautionary instruction, a trial judge properly chooses that course of action. State v. Hogan, 297 N.J. Super. 7, 14-15 (App. Div.), certif. denied, 149 N.J. 142 (1997). The trial judge's decision is entitled to deference on the ground that the assessment of the harm of unduly prejudicial testimony and the potential for cure is best left to the judge "who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury" in the context of the trial. State v. Winter, 96 N.J. 640, 646-47 (1984); see State v. Loyal, 164 N.J. 418, 437 (2000).

We see no abuse of discretion here. The trial judge gave a simple, understandable, and commonplace example of one of the many reasons a person might scream at another in a parking lot. Moreover, the judge promptly instructed the jurors that anything that occurred between defendant and Mrs. Nieves, other than her identification of him and the Jubys' car, was wholly irrelevant to the case.

We also conclude that the prosecutor's summation did not have the capacity to deprive defendant of a fair trial. State v. Daniels, 182 N.J. 80, 95-96 (2004); State v. Ramseur, 106 N.J. 123, 322-23 (1987). We consider the impact of the improper comment in the context of the entire summation, defense counsel's decision to refrain from objecting, and the court's instructions to the jurors. State v. Frost, 158 N.J. 76, 83-84 (1999). Prosecutors are expected to make "a 'vigorous and forceful presentation of the State's case.'" Ramseur, supra, 106 N.J. at 320 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

Defendant claims, for the first time on appeal, that the prosecutor's reference to certain facts as undisputed -- e.g., the presence of defendant's sister's car in the shopping center parking lot -- amounted to impermissible comment upon his decision not to testify. See Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). We cannot agree. Viewed in the context in which it was presented, the prosecutor's comments were permissible based on the testimony. The remarks cannot reasonably be interpreted as a reference to defendant's decision to leave the State to its proofs, and defense counsel's decision to let the comments pass without objection is indicative of their harmless nature. See State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.), certif. denied, 130 N.J. 13 (1992) (noting that defense counsel's failure to object at time of trial indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's comments were prejudicial).

Similarly, the prosecutor's use of the pronoun "I" in presenting argument about the credibility of witnesses is not fairly read as a prejudicial expression of the prosecutor's personal belief in the credibility of the witnesses. See State v. Marshall, 123 N.J. 1, 156 (1991); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). The prosecutor, as well as the trial judge, cautioned the jurors that it was their responsibility to assess the credibility of the witnesses.

Nor can we conclude that the prosecutor deprived the defendant of a fair trial in arguing, if "you reach the conclusion that he did it, you give him the same compassion that he gave Eleanor Juby and you hold him accountable for what he did to that lady." Any appeal to passion implicit in that remark was addressed by the judge, who directed the jury to weigh the evidence objectively and without emotion.

For the first time on appeal, defendant argues that the trial court erred in ruling that his prior convictions, "sanitized" to preclude reference to the charges in accordance with State v. Brunson, 132 N.J. 377, 392 (1993), would be admitted for impeachment purposes if defendant were to testify. The claim is cognizable on appeal despite defendant's decision to refrain from testifying. See State v. Whitehead, 104 N.J. 353, 360-61 (1986).

Defendant's 1990 conviction for robbery and his 1994 convictions for carjacking, robbery and conspiracy were sufficiently serious and not so remote as to warrant exclusion. N.J.R.E. 609; State v. Sands, 76 N.J. 127, 144-47 (1978). Defendant was released from prison after serving the maximum sentence for the serious crimes he committed in 1994. His release came only ten weeks before the crimes at issue here. Had he testified, it would have been improper to prevent the jurors from considering his disregard for the rules of ordered society in evaluating his credibility. See State v. Morris, 242 N.J. Super. 532, 544-45 (App. Div. 1990), certif. denied, 127 N.J. 321 (1992). On the issue of credibility, the probative value was not outweighed by the potential for unfair prejudice. Brunson, supra, 132 N.J. at 390.

We also conclude that the sentence was not imposed in a manner that violates defendant's right to trial by jury. His extended term is based upon his criminal history. See Apprendi v. New Jersey, 530 U.S. 466, 488-90, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000); State v. Natale, 184 N.J. 458, 474-75 (2005). Moreover, the crime of carjacking, like murder, has no presumptive sentence, and, for that reason, the rules established by the Supreme Court to address judicial fact finding relevant to presumptive sentences have no application here. See State v. Abudullah, 184 N.J. 497, 507 (2005).

The sentence is not manifestly excessive. The extended term is a mere four years longer than the maximum ordinary thirty-year term for carjacking. N.J.S.A. 2C:15-2b. The trial judge applied properly the laws and guidelines governing sentences, and this sentence is based upon aggravating and mitigating factors that are supported by the record and clearly explained. See State v. Dunbar, 108 N.J. 80, 89 (1987); State v. Hodge, 95 N.J. 369, 376 (1984); State v. Roth, 95 N.J. 334, 363 (1984); State v. Johnson, 203 N.J. Super. 127, 137 (App. Div.), certif. denied, 102 N.J. 312 (1985).

 
Affirmed.

(continued)

(continued)

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A-6762-03T4

November 14, 2005