STATE OF NEW JERSEY v. RONALD DUNBAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5318-04T45318-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD DUNBAR,

Defendant-Appellant.

_______________________________

 

Submitted September 12, 2006 - Decided November 15, 2006

Before Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-10-01940.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Ronald Dunbar, was found guilty of first-degree robbery, N.J.S.A. 2C:15-1 (Count One); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (Count Four). After the jury returned its verdicts, defendant pled guilty to second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7 (Count Five).

On April 12, 2005, defendant was sentenced on his conviction on Count One to a term of seventeen years' imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On his convictions on Counts Two and Three, defendant was sentenced to terms of imprisonment of five years and eighteen months, respectively, to run concurrent with the sentence imposed on Count One. On his conviction on Count Five, defendant was sentenced to a term of five years' imprisonment with a five-year term of parole ineligibility, to run concurrent with his sentence on Count One. Count Three was merged with Count One. All appropriate fees and assessments were also imposed. Defendant appeals his convictions and sentences. We affirm the convictions; vacate the sentences; and remand for a new sentencing hearing.

At approximately 10:00 p.m., on September 10, 2003, Niville Petrini and his wife, Gloria, were riding in a rolling pushcart on the Atlantic City Boardwalk when defendant, wearing a red bandana, jumped into the pushcart holding a silver handgun, faced the victims, and demanded money. The individual pushing the cart fled. After threatening the Petrinis with the handgun, defendant fled with Gloria's purse containing between $400 and $500. Mr. Petrini pursued defendant, yelling "stop, thief," but quit the pursuit after a brief period because he became short of breath.

Frank DeJesus was walking toward his friend's automobile when he observed defendant running toward him. DeJesus attempted to block defendant's way, but defendant ran past him. DeJesus, having pursued defendant into a nearby parking garage, flagged down Atlantic City Police Officer Kurtz. Kurtz observed defendant inside the garage standing in front of an open, metal dumpster; and although he did not observe defendant's movements, he heard a sound of metal hitting metal. Also arriving at the garage were Patrolmen Davidson and Sarkos. After defendant was apprehended, Kurtz located the handgun inside the dumpster. Following a search of the area, Gloria's purse, a "comp" card from the casino where the victims had been earlier in the evening, and defendant's red bandana were all found inside a nearby porta-john. When defendant was searched, $482 was found on his person. After defendant was arrested, the victims were brought to the area of the parking garage where they identified defendant while he was seated in the back of a police car. Both victims, DeJesus and Officer Kurtz made in-court identifications of defendant.

Defendant raises the following issues for our consideration on appeal:

POINT I.

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY REPLACING JUROR 11 WITH AN ALTERNATE JUROR BECAUSE THE RECONSTITUTED JURY WAS "POLARIZED" AND LACKED "MUTUALITY OF DELIBERATIONS."

POINT II.

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE OUT-OF-COURT I[]DENTIFICATIONS WERE UNRELIABLE AND TAINTED THE SUBSEQUENT IN-COURT IDENTIFICATIONS.

POINT III.

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S MOTION FOR A CROSS-RACIAL IDENTIFICATION CHARGE PURSUANT TO STATE V. CROMEDY [ 158 N.J. 112 (1999)].

POINT IV.

THE SEVENTEEN (17) YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST[-]DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON [ 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 493 (2004)] AND STATE V. NATALE [ 184 N.J. 458 (2005) (NATALE II)].

(A) IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMIMUM SENTENCE OF TEN (10) YEARS FOR A FIRST[-]DEGREE OFFENSE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(B) IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MIMIMUM SENTENCE OF TEN (10) YEARS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON, AND STATE V. NATALE [II].

I.

Defendant argues that the trial judge erred in excusing Juror No. 11 after the first day of deliberations. Defendant contends that the judge erred by replacing the excused juror with an alternate juror because "the reconstituted jury was 'polarized' and did not possess 'mutuality of deliberations.'" We find the argument to be without merit.

During the voir dire on Monday, February 1, 2005, the trial judge informed the potential jurors that he anticipated the case would probably be concluded by Thursday of that week, but that it was possible the trial could go to Monday of the following week. Juror No. 11 informed the court that although he had a planned vacation commencing Monday next, based on the judge's statement concerning the duration of the trial, he did not believe that the trial would interfere with his vacation.

The jury commenced its deliberations at 1:30 p.m. on Thursday, February 3, 2005. After approximately two hours of deliberations, the jury informed the judge that it was in a disagreement concerning one of the four charges. Because the trial judge was unable to continue the case that Friday, he gave defendant the option of: 1) continuing the trial on Friday with another judge taking the verdict; or 2) excusing Juror No. 11, substituting an alternate juror, continuing the case to Monday, February 7, 2005, and having the jury begin its deliberations anew. Acknowledging that his client understood the choices, defense counsel informed the court that defendant did not want to continue the case on Friday, but rather chose to continue it on Monday, knowing that an alternate juror would be substituted for Juror No. 11. Following the colloquy, the judge excused Juror No. 11, replacing him with an alternate juror. No objection was made to the juror substitution.

When the trial resumed on Monday, defendant moved for a mistrial based on the juror substitution, contending that "the new juror is going into deliberations facing closed minds." In denying defendant's motion, the judge stated that defendant had "effectively waived any objections he might have had for the process we've engaged in" because "he wanted to ensure that I was the judge . . . with whom the matter [would be] continued," rather than having the original constituted jury continue deliberations before another judge the previous week.

"Rule 1:8-2(d)(1) governs the removal and substitution of jurors in civil and criminal trials, both before and after the commencement of deliberations." State v. Jenkins, 182 N.J. 112, 123 (2004). The rule provides that after a jury commences deliberations, the trial judge may substitute jurors where "a juror dies or is discharged by the court because of illness or other inability to continue." R. 1:8-2(d)(1). "The [r]ule delicately balances two important goals: judicial economy and the right to a fair jury trial." Jenkins, supra, 182 N.J. at 124. "[T]he 'inability to continue' standard is necessarily vague because it is impossible to catalogue the myriad circumstances personal to a deliberating juror that may warrant [his or] her removal and substitution." Ibid. In other words, the provision is broad in scope, and intended to cover those incidents where it is necessary to substitute a juror, for reasons other than death or illness, provided the substitution will not cause prejudice to the defendant. We are satisfied that where a juror informs the court that he or she will be able to serve, knowing the estimated length of trial, but is later unable to continue deliberating because of prepaid vacation plans, that such reason falls within the umbrella of "other inability to continue." R. 1:8-2(d)(1). The reason for excusing Juror No. 11 was personal. It was not unlike where a deliberating juror was unable to continue deliberating because of financial hardship. State v. Williams, 171 N.J. 151, 167-71 (2002).

Defendant contends the jury deliberations had proceeded too far to replace Juror No. 11 with an alternate, and the substitution may have destroyed the neutrality of deliberations of the jury, citing Jenkins, supra, 182 N.J. 112. We are satisfied that the judge did not mistakenly exercise his discretion in removing the juror and substituting an alternate. Jenkins is distinguishable. Jenkins involved a juror who requested to be discharged after the commencement of jury deliberations because "she could not decide the case based on the evidence fairly, impartially, and without sympathy, and that she was prepared to disregard her own findings of fact based on an overpowering bias toward defendant." Id. at 128. The juror in Jenkins was not requesting to be discharged for a personal reason, but rather a reason that was an "anathema to our scheme of justice - that a juror, judging a fate of a defendant, can be a law unto herself." Ibid. Although we find Jenkins distinguishable, we find the case instructive on the issue of replacing a deliberating juror with an alternate, rather than declaring a mistrial.

"[T]here are times when jury deliberations [will] have proceeded too far to permit replacement of a deliberating juror with an alternate." Id. at 131. "'[W]here the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence,' there is a concern that the new juror will not play a meaningful role in deliberations." Id. at 132 (quoting State v. Corsaro, 107 N.J. 339, 352 (1987)). "In such cases, the replacement juror is likely to be confronted with 'closed or closing minds.'" Ibid. (quoting Corsaro, supra, 107 N.J. at 352). Because defendant did not object to the dismissal of Juror No. 11 and substitution of the alternate juror, but affirmatively agreed to the juror replacement, we conclude that defendant is barred from raising the issue on appeal.

Ordinarily, trial error that is induced, encouraged, acquiesced in, or consented to by defense counsel does not form a basis for reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); see also State v. Pontery, 19 N.J. 457 (1955). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Pontery, supra, 19 N.J. at 471.

Defendant acquiesced in the continuance of the trial to Monday with the substitution of the alternate juror, rather than continuing the trial the following day before a different judge. Defendant cannot now claim that the substitution of the alternate juror requires reversal. Harper, 128 N.J. Super. at 277. The court offered defendant the choice of continuing the trial the following day with another judge presiding. We are satisfied that the substituted judge's involvement would have been minimal and would not have involved an appreciable potential for difference in terms of meaningful decision making. The evidentiary stage of the case had been concluded along with arguments of counsel. Jury instructions had been provided, and the substituted judge could have taken the verdict.

II.

Defendant contends that the victims' out-of-court identifications were unduly suggestive and tainted their subsequent in-court identifications. Defendant contends the trial judge abused his discretion and deprived defendant of his right to a fair trial by admitting the identifications. The State counters that the trial judge properly declined to suppress the victims' identification evidence because the out-of-court identification procedures used were "not unduly suggestive, and the in-court identifications were not the product of impermissibly suggestive out-of-court identification procedures."

Prior to trial, defendant sought to exclude evidence that the victims had identified him on the evening of the robbery. Testifying at the Wade hearing were the Petrinis and DeJesus. Niville Petrini testified that the area where the robbery had occurred was "very well lit like daytime;" defendant had entered the rolling pushcart, standing in front of them while pointing a gun at them; Niville produced his wallet on demand of defendant, but had no money inside of it; Niville explained that his wife had their money in a small purse, and after Mrs. Petrini took the purse out of her pocketbook, defendant grabbed the purse and fled.

Mr. Petrini estimated that the police arrived within five to seven minutes of the robbery. Within several minutes, the Petrinis were driven to a location to identify an individual to see "if he was the person that robbed us." Mr. Petrini testified that defendant was seated in the rear seat of another police car, and he could only see that part of defendant that was visible from the rear window, that is "from the chest to the top of his head." After making observation of defendant's face, which was lit from the light of a police flashlight, Mr. Petrini testified that there was no doubt in his mind that he was the person who had just robbed him. "I just saw him about, you know, a couple minutes ago, for quite a length of time, plus I chased him, and it was the exact same person. There's no doubt in my mind about that." Mr. Petrini estimated that the entire incident, from the time of robbery to the completion of the showup identification, was about eighteen minutes.

Gloria Petrini's testimony was similar to that of her husband. She testified that during the robbery she was able to observe defendant's face, although she conceded she was concentrating on the gun. She identified the perpetrator as a young black man, with braided hair, approximately five feet-eleven inches tall, and wearing a red bandana. While at the scene, the police told [her] and her husband that "they had somebody and wanted us to identify, or look at him." After being driven to where the showup identification took place, she testified that she made an out-of-court identification of defendant as the individual who had robbed her, although defendant was not wearing a red bandana.

DeJesus testified concerning his attempted stop and subsequent pursuit of defendant into the parking garage. DeJesus testified that he observed a black man wearing a white shirt, black pants, and a red "hat" run past him. During the chase, the defendant turned around and said to him "[S]top following me if [you] don't want to get shot." After pursuing defendant into the garage and summoning the police, DeJesus observed the police bring defendant, the same individual he was chasing, out of the garage. Following the Wade hearing, the trial judge determined the out-of-court identifications of defendant and any subsequent in-court identifications of defendant, by the victims and DeJesus, were admissible.

The test on appellate review of a Wade hearing is whether the trial judge could reasonably conclude that the identification procedure was not "'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 225 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The test for suggestivity is a two-pronged test. The first prong is whether the identification procedure employed was "impermissibly suggestive." Madison, supra, 109 N.J. at 232. Only if there is a finding of impermissible suggestivity does the second prong of the test even apply. Ibid. The second prong requires a determination of whether the suggestivity resulted in a "'very substantial likelihood of irreparable misidentification.'" Ibid. (citation omitted). "The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation." State v. Mustacchio, 109 N.J. Super. 257, 263 (App. Div.), aff'd, 57 N.J. 265 (1970).

For the second prong, the court focuses on the witness's reliability. To determine whether or not the witness is reliable and the procedure resulted in a very substantial likelihood of misidentification, the following factors must be weighed: "'[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of [the witness's] prior description . . ., the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" State v. Clausell, 121 N.J. 298, 326 (1990) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

Our court has recently reaffirmed the use of the two-step analysis when determining the admissibility of out-of-court showup identifications. State v. Herrera, 187 N.J. 493 (2006). While acknowledging that one-on-one showups are inherently suggestive by definition because "the victim can only choose from one person, and, generally, that person is in police custody," the court held that "standing alone[,] a showup is not so impermissibly suggestive to warrant proceeding to the second step." Id. at 504. See also State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). "[H]owever, . . . only a little more is required in a showup to tip the scale toward impermissibly suggestive." Herrera, supra, 187 N.J. at 504.

"[A]dded comments by the police [may] render[] the showup procedures in [an] out-of-court identification of [a] defendant impermissibly suggestive." Id. at 506. We conclude that the added comments made by the police while transporting the victims to the place of identification do not rise to a level "to tip the scale toward impermissibly suggestive." Herrera, supra, 187 N.J. 504. The police never informed the victims that they had arrested the individual who had committed the robbery, but only that the police wanted the victims to view an individual to see if he was the one who had robbed them. Accordingly, we need not address the second prong of the two-step procedure governing out-of-court identifications. Id. at 503-04; Madison, supra, 109 N.J. at 232.

Even assuming we were to have determined the showup procedure impermissibly suggestive, we are satisfied that the identification was reliable, i.e., that the identification was not imposed upon the victims, leading to a substantial likelihood of irreparable misidentification, but rather that the identifications were those of the two victims. Madison, supra, 109 N.J. at 234. The area where the robbery occurred was well-lit; both victims had the opportunity to observe the face of defendant and his clothes while he confronted them in the rolling pushcart; the description of the perpetrator and of his clothes initially provided to the police, as compared to what the victims observed at the place of identification, had demonstrated a level of certainty; and it was an extremely short period of time between the robbery and the confrontation. Herrera, supra, 187 N.J. at 503 (citing Manson, supra, 432 U.S. 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

The findings of a trial judge in a Wade hearing are entitled to great weight. We will not disturb the findings and legal conclusions unless we are convinced that they are so manifestly unsupported by, or inconsistent with the competent, relevant, and reasonable credible evidence to offend the interest of justice. Wilson, supra, 362 N.J. Super. at 327.

III.

Defendant argues next that the trial judge erred in denying his request for a cross-racial identification charge. Defendant contends that the victim's identification of defendant as the perpetrator was uncorroborated by any other eyewitness testimony or forensic evidence. Defendant asserts that "a cross-racial identification charge was appropriate and necessary because the instruction was requested, because the instruction involved a central issue in the case, and because the purported corroborated evidence was disputed." We disagree.

In State v. Cromedy, 158 N.J. 112, 132 (1999), the Court held that a cross-racial identification charge must be given when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Cromedy was decided in the context of a sexual assault committed upon a white female college student by an African-American male. Id. at 115-16. After the assault, the victim was shown "slides and photographs, including a photograph of defendant, in an unsuccessful attempt to identify her assailant." Id. at 116. Eight months after the attack, the victim observed the defendant walking across the street from her and identified him for the first time as her attacker. Id. at 117. "No forensic [or other] evidence linking defendant to the offenses was presented during the trial[]" other than the victim's identification. Ibid. Here, contrary to Cromedy, the victim's identifications occurred approximately fifteen to eighteen minutes post-robbery; DeJesus followed defendant to a nearby parking garage where he was found by the police; the arrest in the garage was near a dumpster where the gun was found and in close proximity to a porta-john where the red bandana and the purse of the victim were found. We are satisfied that the trial judge did not mistakenly exercise his discretion in denying the request for a cross-racial identification, concluding that the victim's identifications were corroborated by other evidence, giving the identifications independent reliability. Cromedy, supra, at 132.

IV.

Lastly, defendant argues that his seventeen-year base custodial sentence on the conviction for first-degree robbery on Count One was manifestly excessive and violated his constitutional rights, citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and State v. Natale, 184 N.J. 458 (2005) (Natale II). We agree.

In Natale II, our Supreme Court held "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." Natale II, supra, 184 N.J. at 466. Thus, when a defendant receives a sentence higher than the presumptive term, based on a judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive term based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

For those defendants whose cases were on direct appeal as of the date of the decision, or who had raised this challenge to their sentences at trial or on direct appeal, and who had been sentenced to a term above the presumptive term in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. Id. at 494. At that hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a lesser sentence." Id. at 495-96.

The judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) (risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). He did not find any mitigating factors. After weighing the aggravating mitigating factors, the judge determined that it was necessary to impose a sentence "beyond the presumptive" term, and sentenced defendant to a base term of seventeen years, two years above the then presumptive term, on his conviction of first-degree robbery.

Although the trial judge based his decision to impose a sentence above the then presumptive term on aggravating factors (3), (6), and (9), we are compelled to vacate the sentence and remand for re-sentencing under Natale II. The Court has stated that "[f]or defendants sentenced prior to Natale [II], we have no confidence that any who were sentenced above the then presumptive sentence on the basis of aggravating factors (3), or (6), or (9), were sentenced exclusively on the mere judicial fact-finding of the existence of a prior conviction." State v. Thomas, 188 N.J. 137, 153 (2006).

The convictions are affirmed; sentences are vacated; and the matter is remanded for re-sentencing under Natale II and State v. Thomas, supra, 188 N.J. at 153-54.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-5318-04T4

November 15, 2006