STATE OF NEW JERSEY v. ALONZO PRICE, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2211-04T42211-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALONZO PRICE, SR.,

Defendant-Appellant.

________________________________

 

Submitted: October 24, 2006 - Decided November 15, 2006

Before Judges Coburn and Axelrad.

On appeal form the Superior Court of New Jersey, Law Division, Cape May County, 00-10-0586-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a reversal and remand resulting from plain error as to the questioning of a discharged juror, defendant Alonzo Price was convicted by a jury of two counts of first-degree kidnapping, N.J.S.A. 2C:13-1b (counts one and two); two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts three and four); one count of third-degree burglary, N.J.S.A. 2C:18-2 (count five); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts six and seven); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3 (eight and nine); one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count eleven); one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count thirteen); one count of theft as a disorderly persons offense, N.J.S.A. 2C:20-3 (count fourteen); and one count of third-degree theft, N.J.S.A. 2C:20-3 (count fifteen). The court sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3a, to a discretionary extended term of life imprisonment with a twenty-five-year parole disqualifier on count six (robbery of Sadie Hamer). It also imposed a consecutive thirty-year term with a fifteen-year parole disqualifier on count two (kidnapping of Mary Perez), and the following concurrent terms: thirty years with a fifteen-year parole disqualifier on count one (kidnapping of Hamer), twenty years with a ten-year parole disqualifier on count seven (armed robbery of Perez), ten years with a five-year parole disqualifier each on counts three and four (second-degree burglary of Hamer and Perez), and five years with a two-and-one-half-year parole disqualifier on count five (third-degree burglary of Perez). The court merged defendant's convictions under counts eight and fourteen into his first-degree robbery conviction under count six, and his convictions under counts nine, eleven, thirteen and fifteen into his first-degree robbery conviction. Appropriate mandatory monetary assessments were also imposed.

The convictions arose in connection with two residential burglaries in Woodbine, which occurred one week apart, one involving Sadie Hamer on June 22, 2000, and the other involving Mary Perez on June 29, 2000. In both instances, the women were sleeping in their bedrooms when someone broke into their respective houses, threatened them, and bound and robbed them.

Hamer testified that a man straddled her, told her not to look at him, and put something flat, sharp and cold to the right side of her neck. She heard the sound of bedding being torn, and her assailant tied her hands behind her back and put a pillowcase over her head. He then put what Hamer thought to be a wood handle of a knife into her side and asked where she kept her money. Hamer heard the man open her drawers and search through her room for valuables. He then told Hamer he was leaving, and if she screamed, he would kill her. After she heard the front door open and close, Hamer shook the pillowcase off her head. She then went to her son's room and woke him, and he called the police. The police untied Hamer when they arrived. The screen to the living room window had been cut, and Hamer reported that she was missing a watch and bracelet, each estimated to be worth $50, as well as $100 in cash.

Hamer could only see her assailant's silhouette as he initially came at her and she described him as "appear[ing] to be tall." When he had Hamer lie down, his cheeks touched hers, and she could not feel any facial hair. She also thought he had close, short hair and had a dark complexion.

Perez testified that her attacker directed her to turn onto her stomach and straddled her on the bed. He then placed a sharp object against her neck and told her not to move. She heard the sound of bedding being torn, and the assailant gagged her and bound her hands behind her back. Perez pleaded with her attacker just to take her money and jewelry, and informed him she had money in her car. He said if she was lying about the money in her car, he would come back and hurt her. The attacker left the house with Perez's car keys, which she had dropped on the living room carpet. She was able to dislodge the gag and called the police.

While resisting the attack, Perez felt her attacker's hair and face. She described him as "approximately five foot ten" with "African American" hair and informed the police he had been wearing a gray shirt and smelled of cigarettes. Perez also told them she believed she recognized her attacker's voice as that of defendant, who was a customer at the pharmacy where she worked, which was located in the building underneath her apartment. Perez reported that she was missing various pieces of jewelry and $200 taken from the wallet in her car.

A screen had been cut in Perez's living room and a cigarette butt, containing saliva that matched defendant's DNA, was located on the pharmacy roof outside Perez's window. The police also found a ladder placed against the pharmacy building, which the attacker had apparently used to climb onto the roof and into Perez's apartment. Detective Ulbrich testified that based on the space between the last rung of the ladder and the flat part of the roof, the attacker would have had to pull himself over the wet, wooden shingles onto the roof, which would have left dark-colored residue on his clothing. Pursuant to a search warrant of defendant's room, the detectives seized a damp gray t-shirt with staining on the front that appeared to be residue from the shingles. Defendant's jean shorts also contained similar staining, and in the pocket were some strands of "purplish" carpeting that were the same color as the carpet in Perez's living room.

Detective William Scull testified as follows regarding the similarities between the two crimes:

With respect to date and time, both, both of these crimes were in the early-morning hours on a Thursday. They happened to be on subsequent Thursdays. One was approximately 2:20 and one was around 3 a.m. . . . And the Thursday happens to be the day after Alonzo Price's payday which he indicates on payday, on Wednesdays, he gets a bottle and gets drunk. . . . They were both within a close proximity to each other in Woodbine which also happens to be in a close proximity to the defendant's apartment.

They were both locations that were primarily housed by a woman . . . without the typical male/man/husband figure in the house as a . . . known thing, I believe, throughout the Town of Woodbine. Woodbine's very small, and people know each other. . . . Both of them are known to primarily have residing with them a minor child.

. . . .

[B]oth crimes were committed via entry of a, a screen -- through a window. Both of them happened to have screen windows on the outside. Both of these screen windows happened to be cut in a very similar fashion, as they were cut right along the bottom of the screen.

I have investigated other burglaries and such throughout my, my time, and I believe in my opinion from my experience, that it's more common that if a screen's taken out, either the frame's ripped out or the screen's ripped out. Both of these were cut horizontally along the bottom. Both of them had the screens lifted up, not taken from their track, and both of them had then subsequent entry in through the window.

And both of these crimes had exit through the primary entrance door or exit door. Both of them . . . were residences that had the television on . . . .

The detective further testified that normally, to avoid confrontation, burglars do not wake sleeping victims. In both instances here, however, the perpetrator initiated contact with the victim. Detective Scull also noticed there were other items available to take, such as Perez's car which the attacker had the keys to, but instead, in both instances, he took only money and jewelry.

Defendant appealed his convictions and sentence. In the brief filed by counsel, defendant argued:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR ACQUITTAL AND NEW TRIAL OF THE OFFENSES INVOLVING SADIE HAMER AND OF THE KIDNAPPING CHARGES REGARDING BOTH VICTIMS.

POINT II

THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S DOUBLE JEOPARDY RIGHTS BY RETRYING DEFENDANT ON THE THEFT BY UNLAWFUL TAKING CHARGE UNDER COUNT 15 (Plain Error).

POINT III

THE PROSECUTOR'S COMMENTS DURING TRIAL AND USE OF A PREJUDICIAL POWERPOINT PRESENTATION AND MUGSHOT DENIED DEFENDANT A FAIR TRIAL.

POINT IV

THE TRIAL COURT ERRED AND PREJUDICED DEFENDANT BY PERMITTING DETECTIVE SCULL TO PROVIDE EXPERT OPINION TESTIMONY TO THE JURY "CONNECTING THE DOTS" BETWEEN THE CRIMES AT ISSUE.

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A MISTRIAL AFTER A PROSECUTION WITNESS TOLD THE JURY OF DEFENDANT'S PRIOR INCARCERATION.

POINT VI

THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DEFENDANT'S STATEMENT TO THE POLICE.

POINT VII

THE TRIAL COURT SHOULD HAVE ORDERED A CHANGE IN VENUE OR EMPANELLED A FOREIGN JURY BECAUSE OF PRETRIAL PUBLICITY AS REFLECTED IN THE JURY POOL IN CAPE MAY COUNTY (Plain Error).

POINT VIII

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECUSAL.

POINT IX

THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE V. NATALE.

POINT X

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

In a pro se brief, defendant argues:

POINT I

THE PROSECUTOR IMPROPERLY ASSERTED THAT THE DEFENDANT HAD GIVEN AN ALIBI WHICH DID NOT STAND UP.

We are not persuaded by any of defendant's challenges to his conviction and affirm. As to the challenge to defendant's sentence raised in Point II, the State concedes that Count l5 (third-degree theft of Perez's property) must be dismissed on double jeopardy grounds because it was dismissed in the first trial due to insufficient evidence. We are also satisfied that a remand is warranted for re-sentencing on all counts under State v. Natale, 184 N.J. 458 (2005) ("Natale II"), and for the discretionary term extended sentence imposed on count six under State v. Pierce, 188 N.J. 155 (2006).

In deciding a motion for a judgment of acquittal, the trial judge must review the sufficiency of the evidence and determine whether the evidence is sufficient to warrant a conviction. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. l974), certif. denied, 67 N.J. 72 (1975). The trial judge must determine whether the State has presented sufficient evidence, viewed in its entirety, and giving the State the benefit of all of its favorable testimony and reasonable inferences, to enable a jury to find the essential elements of the offense beyond a reasonable doubt. State v. Martin, 119 N.J. 2, 8 (1990); State v. Reyes, supra, 50 N.J. at 458-59. Here, in denying defendant's motion, the trial judge correctly concluded a rational jury could find substantial evidence of guilt of the offenses charged as to both victims, stating:

The State has presented the direct evidence by virtue of the testimony of Mary Helen Perez that she recognized the defendant's voice, when joined with what little she could glean of the appearance of the defendant at the time of the arrest and the photograph that's been shown [and] admitted into evidence, certainly the appearance of his hair for example.

Miss Perez testified that the assailant smelled, whom she believed to be the defendant, strongly of cigarette[s]. A cigarette butt is found outside of the window which happens to contain the defendant's DNA.

A pair of scissors is found in a car.

The -- there is a piece of carpeting found in the defendant's short pocket. And there is testimony that her keys had been lying on the floor and that there were bits of carpeting scattered throughout her room.

The similarities between the details of the assault upon Miss Perez and that of the Sadie Elizabeth Hamer incident truly are striking: The hour of the night; the manner in which they were bound; the fact very nominal items were taken as opposed to, say, electronics; that the women were similarly situated that they had only a young child, a comparatively young child living with them; the manner of entry; the fact that the defendant in one case didn't go to work at all; in another, the second instance, went to work an hour late; the testimony about the bicycle; his own statements about his whereabouts and his knowledge of rumors, both of which, there was ample testimony rebutting his statement.

We find meritless defendant's argument that the trial court should have dismissed the kidnapping charges as to both victims or that there was insufficient basis to support these convictions. The record does not demonstrate that Hamer or Perez were restrained just so their assailant could commit the robbery of their respective residences, i.e., that the confinement was "merely incidental to the underlying substantive crime." State v. La France, 117 N.J. 583, 590 (1990).

The cases where the kidnapping charge is based on confinement focus on the enhanced risk of harm, not the duration of the confinement. State v. Soto, 340 N.J. Super. 47, 74 (App. Div. 2001). For a defendant to be convicted of first-degree kidnapping, as defendant was in this case, the confinement must have substantially increased the risk of harm beyond that which was inherent in the crime itself. State v. Lyles, 291 N.J. Super. 517, 526 (App. Div. 1996). Defendant could have stolen the items without having wakened the sleeping women, just as he was able to complete the burglary of Hamer's home without ever waking her son. Instead, he confined and threatened their lives, which presented a substantial risk of emotional distress and physical injury to the victims. Defendant appeared in each of their bedrooms in the middle of the night and awakened them, straddled them on their beds, bound their hands behind their backs and also gagged Perez, and placed a sharp object against their throats and threatened to hurt them. Moreover, there is no evidence defendant released either victim "unharmed and in a safe place prior to apprehension." N.J.S.A. 2C:13-1c(1); see State v. Johnson, 309 N.J. Super. 237, 265 (App. Div. l998). Defendant did not release the victims from their confinement. He left both women bound on their beds, with a pillowcase over Hamer's head and a gag in Perez's mouth. The victims, with the police, removed the material with which they were bound.

We find no error, let alone plain error, in the cited comments made by the prosecutor during opening and closing arguments, to which defendant did not object, which defendant now contends improperly interjected the attorney's personal views into the case and improperly invited sympathy for the victims. There is no indication in the record the prosecutor's conduct in his comments, eliciting testimony from Detective Scull or in using visual aids substantially prejudiced defendant's fundamental right to have a jury evaluate the merits of his defense. See, e.g., State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The State's comments did not exceed the bounds of proper argument or express a personal belief as to defendant's guilt. See State v. Staples, 263 N.J. Super. 602, 606-07 (App. Div. l993); State v. Kounelis, 258 N.J. Super. 420, 429 (App. Div.), certif. denied, 133 N.J. 429 (1992). Nor were any of the comments "plainly designed to impassion the jury" and to divert its attention from the facts of the case. State v. Harvey, 121 N.J. 407, 425 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991). Moreover, the prosecutor's "striking similarities" Power Point presentation was accurate and was confined to the "evidence revealed during the trial and reasonable inferences to be drawn from the evidence." State v. Smith, 167 N.J. 158, 178 (2001). The presentation did not bootstrap physical evidence from the Perez incident to the Hamer incident and did not misrepresent Hamer's inability to identify defendant, although she knew him, or the lack of physical evidence tying defendant to the Hamer break-in.

The trial court correctly overruled defendant's objection to Detective Scull's testimony "connecting the dots" between the two crimes, stating the detective was entitled to explain his decision to charge defendant for both crimes. The similarities between the two crimes - their locations, the times they were committed, the choice of victims, and the assailant's conduct before and after each of the incidents, is not "expert" testimony beyond the understanding of the average juror. See N.J.R.E. 703. Rather, it is the kind of factual testimony that a police officer would typically provide based on his or her perception of the evidence obtained in the investigation. See N.J.R.E. 701.

The balance of defendant's challenges to his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

As to defendant's sentence, the trial court found aggravating factors one, two, three, six and nine. All of the sentences are in excess of the former presumptive terms for the respective offenses. Accordingly, defendant is entitled to be resentenced without consideration of the presumptive terms in conformity with Natale II. Defendant was properly sentenced on count six (first-degree robbery) to a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a, based on his six prior indictable convictions. Although not raised, we are obligated to remand for a new analysis of the sentence pursuant to the recent opinion of State v. Pierce, supra, 188 N.J. at 168-174, which modified the four-step State v. Dunbar discretionary extended-term sentencing process.

Convictions affirmed except for conviction under Count 15, which is reversed; remanded for resentencing.

 

108 N.J. 80 (1987).

(continued)

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A-2211-04T4

November 15, 2006