STATE OF NEW JERSEY v. ATOM MUHAMMED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5497-03T45497-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ATOM MUHAMMED,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 21, 2005 - Decided July 31, 2006

Before Judges Fall and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 03-08-2844.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert P. Williams,

Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Leeann Cunningham,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Atom Muhammad appeals from a judgment of conviction entered on December 17, 2003 after a jury found him guilty of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1; first degree robbery, N.J.S.A. 2C:15-1; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and fourth degree resisting arrest, N.J.S.A. 2C:29-2a. After the appropriate mergers, defendant was sentenced to an aggregate term of eighteen years subject to 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

These charges arose out of a robbery at the Payless Supermarket in Newark at about 7:30 p.m. on December 11, 2002. Two eyewitnesses testified at trial. One was the store owner, Himanshu Patel, who was uncertain whether two or three men entered the store on the day of the robbery. He was certain two men wearing ski masks entered the store. When one of the robbers demanded money, Patel hit the panic button on the cash register to notify the police that a robbery was in progress. One of the robbers then punched Patel in the face with a gun and the two began to scuffle.

The second eyewitness was James Miles, an employee at the store, who testified that three men came into the store, two of whom wore ski masks. One of the men wearing a ski mask had sideburns and a moustache. The third man who entered the store did not have a ski mask, and Miles identified that person as defendant. When the robbers fled the store, they took boxes of cigarettes with them.

Meanwhile, Officer Willie Winns, who responded to the report of the robbery, saw defendant leaving the store with a box of cigarettes. Defendant was wearing a black jacket and dark-colored pants. Defendant struggled with Winns, causing Winns to lose his grip on defendant, who then escaped. During this struggle, Winns' gun was accidentally discharged.

After Patel, Miles and Winns gave descriptions of the robbers, the police spotted defendant coming from an alley on Halsted Street and chased him, ultimately over a roof and onto a balcony, where he was captured. The police brought him back to the supermarket, where Miles positively identified him as having participated in the robbery.

Defendant was taken to police headquarters, where he was advised of his Miranda rights. He ultimately gave a statement in which he admitted that he had picked up Michael Green and Quincy Rodriguez in his girlfriend's blue Nissan. He acknowledged that he knew Green had a .22 handgun inside a blue bag and that he drove the three of them to the supermarket on the day of the robbery. Defendant claimed, however, that he never went into the store. Defendant also claimed to be wearing a ski mask at the time of the robbery.

At trial, Michael McCall testified for defendant that he was in a holding cell at the police station when defendant was brought in. McCall testified that he saw "the police smack [defendant] in the face and push him in the cell and tell [defendant] he'll be back for him later." McCall testified that when the police officers came back for defendant, they handcuffed him and took him down the hall where McCall heard defendant "hollering a lot."

In this appeal, defendant argues:

POINT ONE

THE DECISION NOT TO SUPPRESS THE STATEMENT OF THE DEFENDANT WAS ERRONEOUS AND CONSTITUTED PLAIN ERROR

POINT TWO

ALLOWING THE DEFENSE WITNESS, MICHAEL McCALL, TO TESTIFY IN PRISON GARB VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS (Not Raised Below)

POINT THREE

UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

POINT FOUR

THE SENTENCE WAS MANIFESTLY EXCESSIVE

We have carefully considered the record in light of defendant's arguments in his first three points and we are satisfied that they lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following.

On the motion to suppress, Detective Atom Muhammad, defendant and Michael McCall testified. Detective Muhammad took defendant's statement and testified that he had given defendant his Miranda warnings and that defendant signed the Miranda waiver form. The detective stated that he did not intimidate defendant by hitting or threatening him.

Defendant testified that he gave the statement out of fear because the officers were hitting and threatening him. McCall testified at the suppression hearing that he heard defendant yelling "stop, stop" after he was taken from the holding cell.

In deciding the suppression motion, the judge noted that it turned on credibility. He found the officer credible and McCall lacking in credibility because he had "issues with the police." The judge found that defendant and McCall were actually supporting each other "in trying to make their case go away with their testimony. So [he did not] find it to be a genuine issue of not having an interest in the outcome of the proceedings."

In essence, defendant argues that the weight of the evidence was against the judge's credibility findings. Credibility issues are for the trier of fact to determine. State v. Locurto, 157 N.J. 463, 474 (1999). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Ibid. (citing State v. Jamerson, 153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); State v. Johnson, 42 N.J. 146, 161 (1964)). We must review the record in the light of defendant's contentions - "but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." Johnson, supra, 42 N.J. at 161. We give deference to the findings of the trial judge and limit our determination to whether those findings "could reasonably have been reached on sufficient credible evidence presented in the record," based on "the proofs as a whole." Id. at 162. We will not reverse unless we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Ibid.

Our review of the record convinces us that the trial judge's findings are supported by sufficient credible evidence in the record and we affirm his decision rendered on the record on September 16, 2000. R. 2:11-3(e)(2).

Defendant next argues for the first time on appeal that his right to a fair trial was prejudiced by McCall's testifying in prison garb.

Before McCall testified, the court asked defense counsel his position on McCall's attire. Counsel responded, "My position is, for our purposes, I don't think it matters, judge, in this case. . . . [W]e're not objecting to him testifying . . . in his prison clothes. The jury is going to hear that he has quite an extensive record . . . . So once they hear all of that, I recognize his credibility is not stellar to begin with." We agree with defense counsel's assessment and we see no prejudice to defendant in McCall's testifying in prison garb.

In State v. Artwell, 177 N.J. 526 (2003), the Supreme Court indicated that "a defense witness in restraints presents a risk of unfair prejudice to a defendant" in that it undermines the credibility of the witness on defendant's behalf. Id. at 536-37. The Court did not, however, address the appearance of a defense witness testifying in prison garb about conversations he purportedly had with defendant while they shared a cell. Defendant's argument might be more persuasive if McCall's testimony focused on issues other than his conversation with defendant while they both shared a jail cell. Thus his appearance in prison garb could not have unduly prejudiced defendant.

Defendant next argues that he was denied effective assistance of counsel because defense counsel (1) failed "to strenuously object" to McCall testifying in prison garb; (2) failed to advise defendant to testify to bolster McCall's testimony; and (3) failed to call defendant's son to testify - albeit he makes no proffer as to the substance of his son's testimony other than that he would "bolster the defendant's credibility."

To demonstrate ineffective assistance of counsel, a defendant must show a reasonable likelihood of being able to rebut the "strong presumption" of competent performance on counsel's part and show that, but for counsel's error, the outcome of the matter would have been different. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 694-95 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). A claim for ineffective assistance of counsel must be established by a preponderance of the credible evidence. State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)).

We have considered defendant's argument in light of the applicable law and we are satisfied that it is without merit. As we have already discussed, McCall's testifying in prison garb did not result in undue prejudice to defendant given the substance of the testimony.

Prior to McCall's testimony, the trial judge engaged in a colloquy with defendant regarding defendant's right to testify or not. The judge expressly advised defendant that "the ultimate decision belongs to you. Do you understand that?" Defendant responded, "Yes sir, I do." The judge then advised defendant of the jury charge he could if give defendant wanted it and defendant again stated that he understood. At the conclusion of McCall's testimony, defense counsel advised the judge that defendant did not wish to testify. The judge repeated the colloquy with defendant respecting his right to testify or not and explained the jury charge that could be given. Defendant repeated that he understood his rights and that the decision was his. Accordingly, defendant was fully advised of his right to testify or not to testify and that the choice was his. The record more than adequately demonstrates that he knowingly and voluntarily waived that right. See State v. Savage, 120 N.J. 594, 629-30 (1990).

Defendant's claim that trial counsel was inadequate because he failed to call defendant's son as a witness is equally without merit. Defendant proffers no testimony for his son. Moreover, our review of the record indicates that defense counsel was familiar with the case and that he was prepared in examining and cross-examining witnesses. We find no basis upon which to conclude that counsel's performance was deficient.

Finally, defendant was sentenced to a term of eighteen years subject to 85% parole ineligibility on the first degree robbery charge. He argues that the judge exceeded his discretion and violated the dictates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Abdullah, 372 N.J. Super. 252 (App. Div. 2004), aff'd in part, rev'd in part, 184 N.J. 458 (2005).

The judge applied aggravating factors 3, 6 and 9 and no mitigating factors. N.J.S.A. 2C:44-1a and b. Defendant's criminal history is extensive and clearly justifies the imposition of the offender-based aggravating factors. Abdullah, supra, 372 N.J. Super. at 278. He had two juvenile adjudications and was sentenced to custodial terms on both. As an adult, this is the fourth indictment under which defendant has been convicted and he has been sentenced to terms of incarceration on each. At the time of sentencing on these charges, defendant was awaiting trial on four additional indictments. This sentence is consistent with Blakely and its offspring Abdullah and State v. Natale, 184 N.J. 458 (2005).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The transcript of the suppression hearing indicates that the detective and defendant are both named Atom Muhammad, although defendant's brief identifies the detective as Murad Muhammed and the State identifies him as Mirad Muhammad.

(continued)

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A-5497-03T4

July 31, 2006