STATE OF NEW JERSEY v. LUTHER C. THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6763-03T46763-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUTHER C. THOMAS,

Defendant-Appellant.

_____________________________

 

Submitted December 20, 2005 - Decided February 17, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, 00-11-1283-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Shara D. Saget, Assistant Deputy

Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Dorothy Hersh, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Luther Thomas was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1; third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a); two counts of fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(4); second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); and third-degree possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3(b). After merger of the theft count into the conviction for armed robbery and the possession of a sawed-off shotgun into the conviction for possession of a weapon for unlawful purposes, Judge Maryann K. Bielamowicz imposed an aggregate extended sentence of twenty-eight years with parole ineligibility for thirteen years. Defendant appeals his conviction and sentence alleging the following:

POINT I - THE TRIAL COURT'S FAILURE TO GIVE A CURATIVE INSTRUCTION AFTER SUSTAINING TESTIMONY THAT THOMAS WAS A DRUG DEALER AND HAD ACTIVE WARRANTS, RESULTED IN A VIOLATION OF N.J.R.E. 404(b) AND THOMAS' FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 1. (Partially Raised Below.)

POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE PROSECUTOR, DURING REDIRECT EXAMINATION, TO CONTINUE QUESTIONING DANIELS ABOUT AN OUT-OF-COURT IDENTIFICATION THAT WAS BEYOND THE SCOPE OF DIRECT AND CROSS-EXAMINATION, IN VIOLATION OF N.J.R.E. 611(a). (Partially Raised Below.)

POINT III - THOMAS' STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY AND TO DUE PROCESS OF LAW WERE VIOLATED WHEN THE COURT FAILED TO VOIR DIRE JUROR NO. 6 AFTER SHE SENT A NOTE REQUESTING TO BE EXCUSED FROM HER DUTIES.

POINT IV - THE SENTENCE IMPOSED ON MR. THOMAS IS MANIFESTLY EXCESSIVE AND VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND A JURY TRIAL. (Not Raised Below.)

A. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

B. THE SENTENCE IMPOSED DENIED THOMAS OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND RIGHT TO JURY TRIAL.

At about 8:30 p.m. on May 22, 2000, two masked men entered Yon's Delicatessen at 227 Mulberry Street in Trenton. One man dressed in dark clothing pointed a sawed-off shotgun at the head of the cashier, Jenny Kim, while the other robber, who wore a cream-colored sweatshirt, went to the back of the store and pulled another store employee, Marco Santiago, to the front of the store and pushed him to the floor. The man in dark clothing held his gun to Santiago's back while the other demanded money. After Ms. Kim held out a stack of small bills, the man in the cream sweatshirt reached over the counter and took the cash register drawer, which contained about $70 in bills and change. The robbers then fled. A surveillance camera videotaped the entire incident.

During the course of the investigation, the police spoke with Heather Brodie, who is the mother of a child sired by co-defendant James Davis. Ms. Brody later testified that at about 6:30 on the evening of the robbery she drove with Davis to defendant Thomas' apartment at 620 West State Street where they picked up defendant. Ms. Brodie stated that defendant was wearing dark clothing, black jeans, black jacket and was carrying a dark-colored backpack. The three then drove to Brodie's home at 134 Hanover Street where Davis changed into a cream-colored sweatshirt. Shortly before 8:00 Davis and the defendant drove away.

The same evening Keith Daniels and Daryl Davis, James Davis' brother, were at their home at 235 Breunig Avenue, which is located behind Yon's Deli. Shortly after 8:00 two men with their faces masked rang the doorbell. Davis heard one of them speak, recognized his brother's voice and admitted the two men. Daryl said that James was wearing a cream-colored sweatshirt, and defendant wore dark clothing and a knit cap. They went down to the basement, and James Davis asked Daryl for a shirt. When Daniels later went into the basement, he saw several piles of change on a table and a garbage bag on the floor. Heather Brodie testified that when Davis returned to her house, he put about $40 in change on a dresser top.

Joseph Wright testified that he owned the house at 235 Breunig Avenue where Keith Daniels and Daryl Davis lived. He said that on the night of May 22, 2000, he drove past Yon's Deli and saw several police cars in front. When he emptied the trash the next morning, he saw a green garment bag that had been in his trash can. When he opened it up, he found a cash register drawer, cash register receipts and some clothing. He went to Yon's Deli and told Ms. Kim that he had found something that could be related to the robbery the night before. When Wright later returned home, he called the police to report his discovery.

Plaintiff did not testify or offer any witnesses.

Defendant argues that comments by State witnesses prejudiced his right to a fair trial. He points to the unsolicited comment of Ms. Brodie that she knew defendant because he "used to deal drugs up the street." Defense counsel objected, and the trial judge instructed the jury to disregard the statement. The second comment occurred during the testimony of Detective Pedro Medina, who remarked that defendant was detained at police headquarters because of "active warrants." Once again the trial judge sustained the objection of defense counsel and instructed the jury to disregard the statement. While defendant argues that the instructions of the trial judge to the jury were insufficient to cure the prejudice created by the testimony, we find that the court acted properly and that the comments in question did not have the capacity to lead to a verdict that would not otherwise be reached. State v. Winter, 96 N.J. 640, 646-48 (1984).

After careful consideration of the record, we find that the other arguments made by defendant on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argued that his sentence violated his Sixth Amendment guarantee of a jury trial and was excessive. We disagree. The court gave sufficient reasons for imposing an extended term, and the court noted that the aggravating factors which increased defendant's sentence were based on his prior record.

 
Affirmed.

(continued)

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A-6763-03T4

February 17, 2006