STATE OF NEW JERSEY v. KEVIN E. DUNBAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4561-03T44561-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN E. DUNBAR,

Defendant-Appellant.

___________________________________________________________

 

Submitted May 10, 2006 - Decided June 12, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Ind. Nos.

02-10-1974; 02-10-1975; 02-07-1300.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Stacy Handler, Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM*

Following a jury trial, defendant Kevin E. Dunbar was convicted of second-degree robbery, contrary to N.J.S.A. 2C:15-1. Prior to sentencing, he pled guilty to third-degree fraudulent use of a credit card, contrary to N.J.S.A. 2C:21-6(h); and fourth-degree shoplifting, contrary to N.J.S.A. 2C:20-11(b)(1). In return for the guilty pleas, the State agreed to dismiss other charges, and it also agreed to recommend a four-year prison term concurrent to the sentence imposed for the robbery conviction. The court imposed an eight-year prison term for robbery, subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received a concurrent four-year sentence for third-degree fraudulent use of a credit card and a concurrent nine-month sentence for shoplifting. Statutory penalties and assessments were also imposed.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OF THE SECOND-DEGREE ROBBERY CHARGE UNDER INDICTMENT NO. 02-10-1974

POINT II

THE TRIAL COURT'S INSTRUCTIONS ON THE SECOND-DEGREE ROBBERY CHARGE WERE ERRONEOUS AND INCOMPLETE (Partially Raised Below)

A. THE TRIAL COURT'S CHARGE ON "IMMEDIATE FLIGHT" UNDER THE ROBBERY STATUTE WAS INSUFFICIENT (Not Raised Below)

B. THE TRIAL COURT'S CHARGE ON ACCOMPLICE LIABILITY WAS ERRONEOUS AND PREJUDICIAL (Not Raised Below)

C. THE TRIAL COURT ERRED IN FAILING TO CHARGE PRINCIPLES OF SELF-DEFENSE

D. THE TRIAL COURT ERRED IN FAILING TO CHARGE PRINCIPLES OF THE DEFENSE OF ANOTHER

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A MISTRIAL AFTER A PROSECUTION WITNESS TOLD THE JURY DEFENDANT WAS A "KNOWN SHOPLIFTER"

POINT IV

THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S PRIOR CONVICTIONS TO BE USED AS IMPEACHMENT EVIDENCE

POINT V

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Not Raised Below)

POINT VI

THE SENTENCE IMPOSED BY THE TRIAL COURT VIOLATES DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

POINT VII

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE

After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.

On May 30, 2002, Dunbar and co-defendant, Chermane Patterson, were observed shoplifting items at Marshall's department store (Marshall's). As they left the store, Dunbar and Patterson were followed by Anthony Barbato and Ryan Bowers, two loss prevention employees, and Eric Varon, the store manager. When Barbato approached Dunbar and Patterson in the parking lot and announced his position, they immediately started running to their car. Upon reaching the car, Dunbar got in, and he turned the ignition on. Bowers confronted Patterson near the passenger's side of the car and asked her to return to the store. At this point, she became belligerent and she punched him in the jaw with a closed fist.

Bowers testified that after Patterson punched him in the jaw, he saw defendant back his car out of the parking spot "in the way of" Barbato while Barbato was standing "towards the back of the bumper" of defendant's car. Bowers also told the jury that while defendant was "coming back, Anthony had to move out of the way in order to not get hit by the car." Barbato's and Varon's testimony on the issue substantively mirrored Bowers's account. Varon further explained that as defendant backed his car up toward Barbato he was "[g]oing back and forth, back and forth. . . . Herky-jerky back and forth . . . ." When defendant took the stand in his own defense, he denied attempting to hit Barbato with his car as he was pulling out of the parking spot.

After defendant backed out of the parking spot, he then drove the vehicle in the parking lot until he was able to pick up Patterson who was running from the store employees. Barbato and Bowers both testified that while defendant was operating the car in the parking lot, he drove the vehicle in the direction of Barbato. Barbato testified that he moved between two parked vehicles to avoid being struck by the car that Dunbar was driving, and his testimony was corroborated by Ryan Bowers who testified as follows:

Q. [Y]ou clearly saw [defendant] aim that car at Mr. Barbato?

A. From my position where I was, I could see the top of the car and it turned facing toward Mr. Barbato.

Q. What distance did it go aiming towards Mr. Barbato?

A. From when he turned the car to Anthony?

Q. Right?

A. Not that I am . . . a good judge of distance, between I would say 10, 15 feet.

Q. Then he veered off and Miss Pat[t]erson got into the car?

A. Yes.

Q. And the plate number was taken, right?

A. Yes, it was.

Q. And the police were called?

A. Yes.

Defendant told the jury that he was guilty of shoplifting, however, he denied that he drove the car in the direction of Barbato:

Q. You heard testimony that at some point in time when you made the swing around and you are going to pick Chermane up, you are diverting your car towards [Barbato] and he would have to get out of the way?

A. Yes.

Q. Did that, in fact, occur?

A. No, sir.

Q. . . . [C]ould you estimate at the point of time you are picking Chermane up how fast you were going?

A. Maybe 15, 20 miles an hour.

Q. [Were] there other people in the parking lot that you observed?

A. There were a few customers in the parking lot. It's a big parking lot, several stores, other stores besides Marshall's in that development.

. . . .

Q. In fact, she got in the car and you left?

A. Yes.

Q. And you never attempted to run anybody down by backing up?

A. No.

Q. You never attempted to divert your car towards Mr. Barbato and hit him?

A. No.

Q. And you never attempted to divert your car towards Mr. Barbato to prevent him from catching Ms. Patterson?

A. No, I did not.

A person commits a robbery "if, in the course of committing a theft," the person either "[i]nflicts bodily injury or uses force upon another," N.J.S.A. 2C:15-1(a)(1), "[t]hreatens another with or purposely puts him in fear of immediate bodily injury," N.J.S.A. 2C:15-1(a)(2), or "[c]ommits or threatens immediately to commit any crime of the first or second degree." N.J.S.A. 2C:15-1(a)(3). N.J.S.A. 2C:15-1(a) also states that an "act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Here, because of the conflicting testimony, it was necessary for the jury to assess the credibility of the witnesses, and the jury obviously concluded that the testimony of Barbato, Bowers, and Varon was more convincing than the testimony provided by Dunbar and Patterson.

Defendant claims that the trial court erred in denying his motion for a mistrial after a prosecution witness testified during cross-examination that Dunbar and Patterson "were known shoplifters from our store." This testimony occurred after the witness was asked the following question:

Q. Now once Mr. Dunbar and Miss Pat[t]erson have left the scene, there is no immediate threat of danger there, they are gone?

A. They were gone but they were known shoplifters from our store.

N.J.R.E. 404(b) provides as follows:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Generally, the rule is exclusionary and is intended to bar admission of evidence of other crimes or bad acts when offered solely to establish a party's propensity or predisposition. State v. Cofield, 127 N.J. 328, 335-37 (1992). In this case, however, the jury observed a surveillance videotape that showed defendant shoplifting wallets from Marshall's. Defendant's attorney told the jury in his opening statement that Dunbar "is guilty of shoplifting. He went into Marshall's that day to shoplift," and, when he took the witness stand, defendant admitted shoplifting. The record also confirms that the trial court gave the jury the following instructions:

Ladies and gentlemen, you are to completely disregard Mr. Bowers'[s] last statement about the parties being known shoplifters. There is absolutely no proof in this case about that. Mr. Bowers was well outside of his purview to even say anything like that. I'm advising you in the strongest possible terms you are to disregard that. That is not part of this case and he never should have said that in plain English. How do you disregard something you have already heard[?] It is pretty simple. You make like the evidence in the case is a column of figures and when you come to the statement that Mr. Bowers just made, step over that figure and go on to the rest of the column figures and adding up the proof. Let me emphasize for you there is no proof in this case that Mr. Dunbar and Miss Patterson are known shoplifters or anything of that nature. And that is not part of this case.

The decision to grant a mistrial is discretionary, and will not be disturbed absent a clear abuse of discretion. State v. Winter, 96 N.J. 640, 647 (1984). "A mistrial motion is granted only when the trial court finds that as a result of error manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). When the error is curable by a cautionary jury instruction, it is not an abuse of discretion for the trial judge to choose that course of action. State v. Winter, supra, 96 N.J. at 646-48. The trial judge was in the best position to gauge the impact of the inadmissible testimony on the jury, and we are satisfied that the matter was handled appropriately. The offensive testimony had no realistic potential for affecting the jury's verdict.

Defendant also contends that the trial court erred in admitting evidence of his prior convictions. Prior to trial, defendant acknowledged a third-degree eluding conviction in 1997, a third-degree receiving stolen property conviction in 1998, and defendant's attorney conceded that the convictions were "too recent . . . to argue that they are inadmissible." The trial court ruled that both convictions had to be "sanitized" to preclude reference to the charges in accordance with State v. Brunson, 132 N.J. 377, 392 (1993), and the court also provided the jury with an appropriate limiting instruction.

"[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978); accord State v. Spivey, 179 N.J. 229, 243 (2004). "This discretion is broad, and the key to exclusion is remoteness." State v. Drury, 382 N.J. Super. 469, 484 (App. Div. 2006) (quoting Sands, supra, 76 N.J. at 144), certif. granted, ___ N.J. ___ (2006). The trial court "shall admit evidence of criminal convictions to affect credibility of a criminal defendant" unless the court, in its discretion, finds that the evidence's "probative force . . . is substantially outweighed so that its admission will create undue prejudice." Sands, supra, 76 N.J. at 147; accord Spivey, 179 N.J. at 243.

The trial court did not err in permitting the prosecution to use defendant's prior convictions for impeachment purposes. The probative value of defendant's convictions was not outweighed by the potential for unfair prejudice, Brunson, supra, 132 N.J. at 390, and the jurors were entitled to consider defendant's disregard for the rules of ordered society in evaluating his credibility. See State v. Morris, 242 N.J. Super. 532, 544-45 (App. Div.), certif. denied, 122 N.J. 408 (1990).

Defendant argues for the first time in Point V that the assistant prosecutor's comments "cumulatively denied [him] a fair trial." Our review of the record, however, has convinced us that the challenged remarks by the assistant prosecutor during opening and closing statements to the jury 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).

Although defendant did not raise the argument at trial, he asserts that the trial court's jury instructions "failed to convey sufficiently . . . the principles of accomplice liability," and that the trial court did not correlate the charge to the facts of the case. Defendant also contends that the jury was not properly instructed on flight, the elements of second-degree robbery, and that the jury should have been charged as to self-defense and defense of another. A jury, of course, must be properly instructed on the fundamental principles of law that control the case and the questions that it must decide. State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996). When the State alleges that a defendant acted as an accomplice, the trial court is required to instruct the jury that to find the defendant guilty of a crime under an accomplice liability theory "it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Weeks, 107 N.J. 396, 410 (1987) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). And "our courts regularly have noted the importance of tailoring the jury charge to the facts of the case." State v. Savage, 172 N.J. 374, 389 (2002). Where a defendant does not object to the jury charge at trial, we will only reverse if there was plain error "clearly capable of producing an unjust result." Savage, supra, 172 N.J. at 387 (quoting R. 2:10-2).

After examining each of defendant's arguments regarding the trial court's instructions, we are satisfied that the jury was properly instructed on accomplice liability, second-degree robbery, and flight. And there was no rational basis to charge self-defense or defense of another.

Defendant also challenges the eight-year prison sentence he received for second-degree robbery. Following Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), our Supreme Court held:

Under New Jersey's Code of Criminal Justice, a defendant cannot be sentenced to a period of imprisonment greater than the presumptive term for the crime he committed, unless the judge finds one or more statutory aggravating factors. See N.J.S.A. 2C:44-1(f)(1). The Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant at a plea hearing. We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee.

[State v. Natale, 184 N.J. 458, 466 (2005) (Natale II).]

At sentencing, defendant's attorney asked the court to "impose a five year NERA sentence." The State, on the other hand, argued that defendant's sentence should be "above the presumptive, if not the maximum . . . ." The trial court's findings included the following:

I was going to impose the maximum. But I am going to think the better of it for a moment. This defendant is 35 years old. He had a prior pretrial intervention, ten disorderly persons offenses, two indictable convictions. . . .

He is convicted of a second degree crime . . . . The presumptive term is seven years.

I find aggravating factors 3, 6, and 9 to be more than amply supported by his record . . . . [There] is clearly a risk he'll commit another offense given his history. This offense certainly is serious and there is a need to deter.

There are no mitigating factors.

Because the trial court imposed a sentence that exceeded the then applicable statutory presumptive term based upon factors other than defendant's prior criminal history, we are compelled to remand for resentencing. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Natale II, supra, 184 N.J. at 481-82.

 
Defendant's conviction is affirmed, and the matter is remanded for resentencing.

(continued)

(continued)

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A-4561-03T4

June 12, 2006