STATE OF NEW JERSEY v. PRINCE J. FENNELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04-01--01106356-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PRINCE J. FENNELL,

Defendant-Appellant.

_______________________________________________________________

 

Submitted May 1, 2006 - Decided July 21, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-01-0119-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Prosper A. Bellizia, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Louis F. D'Onofrio, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Prince J. Fennell, appeals from his April 22, 2005 judgment of conviction on the amended charge on Burlington County Indictment No. 04-02-00119-I of third-degree receiving stolen property and a violation of probation. We affirm defendant's conviction but remand for re-sentencing.

Defendant was charged on January 22, 2004, by a two count indictment with third-degree burglary, contrary to N.J.S.A. 2C:18-2a(1), Count One, and third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3a, Count Two. Tried to a jury, defendant was acquitted on the charge of theft by unlawful taking and convicted on the amended charge of third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7.

On April 22, 2005, while awaiting sentencing on this conviction, defendant pled guilty to a violation of probation related to a fourth-degree charge of unlawful theft/receipt of a credit card, contrary to N.J.S.A. 2C:21-6c(1). On April 22, 2005, defendant was sentenced on both offenses. The court denied the State's motion for an extended term, and imposed a five-year term of imprisonment and restitution to Ford Motor Company (Ford) in the amount of $4,600. On the violation of probation, the judge imposed a concurrent one-year prison sentence and terminated probation. As such, the aggregate prison sentence imposed was five years.

On the morning of September 26, 2003, Mount Laurel Township (Mt. Laurel) police officers responded to a suspicious person call, after employees from Coldwell Banker (Coldwell), located on Route 38, encountered a black male hiding in the back fire escape stairway of their building. When the man was confronted by Karen Volk of Coldwell, he replied that he was looking for a man named Dr. Coldwell. After being told there was no Dr. Coldwell in the building and being asked to exit, he re-entered the building, this time through the front stairway, and was again confronted by Volk. He again asked for Dr. Coldwell and was again asked to leave. After the man left, the police were called. Volk described the intruder as a "black gentleman, about six feet, five inches, dark pants, purple long sleeve shirt . . . [with] short hair." Her contact with him lasted one and five minutes respectively.

After these encounters, the suspicious man entered the Optique Boutique (Optique) located on the first floor of the same building, and told receptionist Julie Shields that he wished to pick up his wife's glasses. However, his actions were viewed as highly suspicious because he did not know his wife's last name. He was described as disoriented and possibly high. When an employee of Coldwell entered Optique and explained to the employees what had just happened upstairs, the man was asked to leave the premises. He was then observed running across the building's parking lot and into a vehicle, described as a red Ford Taurus or Ford Tempo. Shields described him as a black man, six feet, five inches tall, carrying a black, soft leather brief case.

On that same morning, employees of Ford, located in Mt. Laurel, discovered that three Dell laptop computers had been stolen. Ford employees reported observing a black male enter the building and then exit to a vehicle. The police were called at 11:14 a.m. and officers responded at 11:49 a.m. to the scene.

The man the Ford employees described matched the description of the man described in the Coldwell suspicious person call. The vehicle described was also similar. A short time thereafter, Patrolman Pallidino reported that Barrack's Trading Post (Barrack's), a local pawn shop, located near Ford on Route 38, had just purchased two Dell laptop computers from a man matching the description of the man reported by employees at Ford, Coldwell, and Optique.

Detective Ronald Devlin, who investigated the theft of the computers, testified that Barrack's manager, Henry Gonzalez, confirmed receiving two Dell laptop computers between 12:00 p.m. and 1:00 p.m. that day. Devlin testified that Gonzalez told him that "Barrack's has a policy that when they receive products in, they ask for some type of identification. And when they receive the identification, they make a copy of it which is on the receipt." Gonzalez remembered that the individual who had sold him the computers that day had been there on prior occasions as well.

Gonzalez was able to supply police with the photo identification defendant presented for the sale of the laptops. He also supplied the police with a copy of a receipt bearing a clear photocopy of the seller's photo identification from a prior transaction, which had "Prince Fennell" written on the back.

Barrack's sold one of the laptops to another customer prior to Devlin's arrival, but the serial number of the remaining computer matched one of the laptops stolen from Ford. The recovered laptop was shown to Welling Lefta, the Ford employee who reported it stolen, who identified it as belonging to fellow employee, Brian Lachowitz.

Devlin returned to Barrack's three days later, on September 29, 2003, to show Gonzalez a "photo lineup." Gonzalez positively identified defendant from the photo array. Devlin had Gonzalez then sign and date the back of defendant's photograph. Gonzalez testified that Devlin's display of the photos was not done sequentially but rather "en masse." At trial, Gonzalez identified defendant and testified that he recognized him from conversations and negotiations he had at the store that lasted five or ten minutes.

One month later, on October 24, 2003, the remaining witnesses were shown a photo array. At Ford, no one could positively identify defendant. At Coldwell, Karen Volk identified defendant with 100% certainty. When Volk made the identification, her co-worker, Willie Keaton, sat at the same conference table and viewed the photographs just before she did. Julie Shields from Optique also identified defendant from the photo array, although she was unable to make an identification on her first review of the photographs and was only 85% sure she had identified the right man on her second review of the photos. As a result of Shields' 15% uncertainty, Devlin did not have her sign and date the back of defendant's photograph as Gonzalez and Volk had done. Devlin testified that "[his] normal procedure is that they would only sign if they were 100 percent sure."

Defendant presents the following arguments for our consideration:

POINT I

IT WAS REVERSIBLE ERROR FOR THE PROSECUTOR TO ELICIT TESTIMONY ON THE DEFENDANT'S POST ARREST SILENCE AND REQUEST FOR COUNSEL (NOT RAISED BELOW).

POINT II

THE IN-COURT IDENTIFICATIONS OF THE DEFENDANT WERE TAINTED BY THE IMPERMISSIBLE SUGGESTIVENESS OF THE OUT-OF-COURT PHOTO ARRAYS.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A MAXIMUM FIVE-YEAR SENTENCE (NOT RAISED BELOW).

POINT IV

THE IMPOSITION OF A MAXIMUM SENTENCE ON THE THIRD DEGREE, RECEIVING STOLEN PROPERTY COUNT WAS VIOLATIVE OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY AND NATALE II (NOT RAISED BELOW).

I

Defendant first contends that when Devlin testified on direct examination at trial, the court committed reversible error when no curative instruction was given after the following exchange:

Q: At some point you came into contact with Mr. Fennell, right?

A: Yes.

. . . .

Q: Now, did you have an opportunity to speak to him?

A: Yes.

Q: And prior to doing so, did you advise him of his rights? Miranda rights?

A: Yes, I did.

. . . .

Q: Did he agree to speak to you?

A: Yes.

Q: He signed the Miranda card and so forth?

A: Yes.

Q: Prior to speaking to him, did you advise him of the nature of the charges?

A: Yes.

. . . .

Q: What if anything, did he say with respect to that date [September 26, 2003]?

A: He immediately told me that he was in Court on an unrelated matter that day. From - if I recall correctly - from eight to five.

. . . .

Q: Did he say anything further?

A: After I mentioned that I would check that out for him, although at the present time the courts were closed - we were after 5:00 o'clock - he said that he didn't want to talk anymore until he consulted his attorney.

Q: Did that conclude the interview?

A: Yes.

Defendant admits that no objection to this testimony was made at trial, but he argues that the error became especially blatant in light of his election not to take the stand.

Defendant contends that the comments above, requesting an attorney and his right to remain silent, required at the very least, a clear and forceful sua sponte curative instruction. Defendant asserts that Devlin's intention was to focus the attention of the jury upon defendant's invocation of his right to counsel as evidencing a consciousness of guilt. Despite the court's general charge that the defendant had a right to remain silent, defendant argues that the magnification of his desire for an attorney, which was neither addressed nor remedied by the Court, amounted to plain error.

New Jersey courts have followed established federal precedent in holding that testimony "designed to show that . . . questioning had a logical ending[]" does not violate a criminal defendant's right to remain silent. State v. Carroll, 256 N.J. Super. 575, 601-02 (App. Div.), certif. denied, 130 N.J. 18 (1992). We noted in State v. Ruscingno, 217 N.J. Super. 467, 470 (App. Div.), certif. denied, 108 N.J. 210 (1987) (emphasis added), that "when a defendant chooses to waive his right to silence, police are entitled to testify concerning any incriminating statements that defendant made and describe not only the beginning of the interrogation but how it ended as well so that the jury will know the police testimony is complete." In Ruscingno, the detective testified that the defendant initially waived his right to remain silent and then gave his version of how the incident occurred. Id. at 470-71. However, he testified that after being confronted with incriminating evidence, the defendant "refused to answer any further questions." Id. at 471. The court held that the testimony established a complete, logical ending to interrogation, the State did not use the testimony for improper purposes or an unfavorable inference, and it was properly admitted at trial. Ibid.

In State v. Feaster, 156 N.J. 1, 74 (1998), the trial court "allowed [a] reference to defendant's invocation of his right to counsel, subject to the condition that the witness connect that event with the termination of the interview." As in this case, "[a]t that time, defendant did not request and the court did not provide a cautionary instruction with regard to the testimony." Ibid.

In Feaster, the defendant asserted that the "testimony impermissibly caused the jury to draw a negative inference from his invocation of his constitutional right." Id. at 75. Further, the defendant contended that "there was no need to show that the interview had a logical ending, because defendant had not provided any statement relating to the investigation - he merely offered background personal information." Ibid. Our Supreme Court stated:

In our view, trial courts should endeavor to excise any reference to a criminal defendant's invocation of his right to counsel. "Such statements can be excised without making the narrative stilted, with the effect of avoiding prejudice to or unfair inference against either party." Particularly in this context, where the purpose of the testimony is to report evidence unrelated to the underlying crime itself, we do not believe a jury will be left to speculate about what later transpired if it is not provided an explanation of why the interview ended.

However, in cases where the proffered testimony does relate substantial evidence regarding a defendant's statements about the underlying crime, such that a jury without further information would be naturally inclined to question why testimony regarding subsequent events was not offered, a trial court may in its discretion permit testimony explaining why an interview or interrogation was terminated. Such discretion properly would be exercised only if the testimony is essential to the complete presentation of the witness's testimony and its omission would be likely to mislead or confuse the jury. In those instances, a cautionary instruction should be provided that explains to the jury that people decline to speak with police for many reasons, emphasizing that a defendant's invocation of his right to counsel or right to remain silent may not in any way be used to infer guilt. We believe that approach strikes an appropriate balance by eliminating possible jury confusion and, at the same time, guarding against any impermissible inferences that could undermine a defendant's fundamental right to a fair trial.

. . . .

Nonetheless, we conclude that the trial court's actions did not amount to reversible error. First, we note the fleeting nature of the reference to defendant's invocation of his right to counsel. Additionally, the prosecutor did not comment on the matter during summation. Moreover, the court provided an emphatic instruction to the jury that it not in any way hold defendant's failure to testify against him. Although that instruction did not relate directly to defendant's invocation of his right to counsel, it did impart to the jury the respect to be accorded defendant's decision to remain silent. The convergence of those factors, in addition to defendant's failure to request a cautionary instruction, persuades us that this jury was unlikely to have drawn any unfavorable inferences against defendant that jeopardized his fundamental right to a fair trial.

[Id. at 75-77 (citation omitted).]

The facts here are consistent with those referenced in Feaster. The reference to the discussion between Devlin and defendant was fleeting in nature, mentioned once throughout the multi-day jury trial, and it was not commented on by the prosecutor in his summation. We are, therefore, satisfied that the jury was unlikely to have drawn any unfavorable inferences from the limited exchange, thereby depriving defendant of his right to a fair trial. This limited testimony was not used by the State to imply defendant's consciousness of guilt. Rather, we are convinced that the testimony here was designed to show a logical ending to the exchange between Devlin and defendant. The court gave a general charge on the defendant's right to remain silent and instructed the jury "not to consider for any purpose or for any manner in arriving at your verdict the fact that he did not testify." We discern no error in the limited exchange, let alone plain error. R. 2:10-2.

II

Defendant next contends that the photo arrays showed to the witnesses were impermissibly suggestive and that the out-of-court identifications from those arrays tainted the in-court identifications of defendant. We disagree.

Before trial, the court conducted a N.J.R.E. 104 hearing to determine the admissibility of the photographs, pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). At that hearing, Devlin testified that he prepared a series of photographic arrays and presented them to various witnesses. All of the photographs depicted black males who had slight facial hair. Devlin testified that no names were on the photographs, and defendant's picture was not highlighted. After viewing the arrays and without any prompting, Gonzalez, Volk, and Shields each identified defendant's photograph. Defendant argues that the flaw in Devlin's identification procedure became clear when he admitted that only defendant's photograph was in black and white and the rest were in color. Defendant also claims that Devlin deviated from Attorney General guidelines when he displayed the photos to Gonzalez all at once, instead of sequentially.

At the pre-trial Wade hearing, Devlin testified as to how he constructed the photo array administered to the witnesses:

Following the New Jersey [Attorney General's] Guideline, we are instructed to identify photographs of individuals that would be very similar to the person that we're looking at. Those photographs can be found or can be acquired in various agencies. We are told to show those pictures one at a time. Not the old way we used to do with a collage-type. And that's what we do. We show them one at a time.

We instruct the individual that the suspect may or may not be in the photo lineup. And to be absolutely correct and be sure before they make a positive identification of the person.

In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the defendant also asserted that "in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction." Id. at 383, 88 S. Ct. at 970, 19 L. Ed. 2d at 1252. Simmons, like here, involved pre-trial identifications through photographs, followed by in-court identifications of the defendant by witnesses. The Supreme Court held, "This is a claim which must be evaluated in light of the totality of the surrounding circumstances." Id. at 383, 88 S. Ct. at 970, 19 L. Ed. 2d at 1252-53.

It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. . . . Th[e] danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.

. . . .

The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

[Id. at 383-84; 88 S. Ct. at 971, 19 L. Ed. 2d at 1253 (footnotes omitted).]

Our Supreme Court, in State v. Madison, 109 N.J. 223 (1988), addressed the issue of suggestivity in out-of-court identifications:

In conducting the Supreme Court's two-step analysis, a court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. "Reliability is the linchpin in determining the admissibility of identification testimony . . . ." The reliability determination is to be made from the totality of the circumstances adduced in the particular case.

[Id. at 232-33 (citations omitted).]

In this case, we are satisfied that in the totality of the circumstances there was not a substantial likelihood of irreparable misidentification. The first of the photo arrays shown to Gonzalez took place only three days after the crime. The photo arrays shown to Volk and Shields took place less than one month after the date of the crime. "Evidence of identification has been admitted by some courts even if the length of time between the crime and the identification is longer than two months." Id. at 242 (citing Neil v. Biggers, 409 U.S. 188, 201, 93 S. Ct. 375, 383, 34 L. Ed. 2d 401, 412 (1972) (holding evidence of identification admissible despite seven month lapse between the crime and the identification)).

Defendant's contention, that of the photographs shown to the witnesses only defendant's picture was in black and white while all the others were in color, is not supported by the trial testimony. On cross-examination of Devlin, the following testimony was elicited:

Q: Now, you have six photographs there, correct?

A: Yes.

Q: So you got six. Five are in color, one is not, right?

A: Yes.

Q: And the one that's not in color happens to be not Mr. Fennell, right?

A: Correct.

This testimony confirms that the photograph of defendant was in color, along with four other photographs included in the photo array. We are satisfied, therefore, that defendant's argument that the photo array was impermissibly suggestive because defendant's photograph was black and white and the others were in color, is clearly without merit.

Defendant also contends that the photo array lineup was impermissibly suggestive because all the photos were shown at the same time instead of one at a time. Devlin was unsure whether he administered the photographs one at a time or all at the same time. However, even if the photos were displayed all at the same time, rather than one at a time, simply because the procedure has been modified to a one-at-a-time methodology in the Attorney General Guidelines does not mean that displaying all photographs at the same time is per se impermissibly suggestive.

Likewise, the fact that there were two witnesses present when Volk and Shields were administered the photo array does not cause it to be impermissibly suggestive. There is no evidence that either of the bystanders made any verbal or otherwise suggestive gestures during the administration of the photo array lineups. The three witnesses who made positive identifications were all able to view defendant during the daytime, in good light, thereby providing each witness with the opportunity to get a good look at defendant. Gonzalez actually recognized defendant from previous transactions at Barrack's. In addition, each of the witnesses spoke directly to defendant on September 26, 2003. We are satisfied that the photo arrays were not administered in a way that was so impermissibly suggestive as to deprive defendant of his right to a fair trial.

III

Defendant asserts that his five-year sentence is excessive. He contends that the trial court did not perform a proper weighing of the aggravating and mitigating factors when it sentenced him to a five-year term, the maximum sentence for a third-degree crime. In sentencing defendant, the court specifically cited to aggravating factors 3, 6, and 9, noting defendant had three prior indictable convictions and was in violation of probation at the time of sentencing, and to mitigating factor 6, restitution to the victim. Defendant argues that the court did not adequately explain the weight accorded the aggravating factors, and contends that these factors should instead be "entitled to minimal weight, particularly in light of the fundamental principle that sentencing should focus on the offense, not the offender."

Our Supreme Court in State v. Megargel, 143 N.J. 484 (1996), set forth the standard of review of criminal sentences that are imposed:

The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[Id. at 493 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)).]

In determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. We are convinced that the trial judge provided an adequate rationale to support his choice of aggravating and mitigating factors.

IV

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

The remedy chosen by our Supreme Court in Natale II to cure the Sixth Amendment constitutional problem presented by New Jersey's Code of Criminal Justice was the elimination of presumptive terms. Id. at 487. "Without presumptive terms, the 'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged . . . ." Ibid. "Judges will continue to determine whether credible evidence supports the finding of aggravating and mitigating factors and whether the aggravating or mitigating factors preponderate." Ibid. The Court further stated: "We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence." Id. at 488. However, the Court noted that this methodology is not compelled. Ibid.

In regard to the new sentencing hearing,

the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)] grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

We are convinced that in accordance with Natale II, defendant's sentence must be remanded for a new sentencing hearing according to the new constitutional sentencing scheme. See also State v. Nesbitt, 185 N.J. 504, 519 (2006); State v. Abdullah, 184 N.J. 497, 506 (2005).

We are satisfied that the trial court did not err in admitting defendant's testimony that while he was being interrogated by Devlin, the police questioning of him stopped, when he indicated he wanted to consult counsel. The in-court identifications were not tainted, because there was no impermissible suggestiveness in the out-of-court photo arrays. However, Natale II requires that defendant's five-year sentence, which is one year above the former presumptive four-year term for a third-degree offense be remanded for re-sentencing.

Affirmed as to conviction, remanded for re-sentencing.

 

The burglary count was dismissed on January 12, 2005.

Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140, 24 L. Ed. 2d 122 (1969).

(continued)

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July 21, 2006