STATE OF NEW JERSEY v. JAMES D. COLVIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1393-05T41393-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. COLVIN,

Defendant-Appellant.

_________________________________________________

 

Submitted December 5, 2006 - Decided March 21, 2007

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

05-02-0263.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gregory P. Jordan,

Designated Counsel, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant, James Colvin, appeals from his convictions for the disorderly persons offense of shoplifting, N.J.S.A. 2C:20-11b(1) and c(4), as a lesser-included offense within first-degree robbery, and third-degree witness tampering, N.J.S.A. 2C:28-5a, for which he received consecutive sentences of six months with fifteen days of community service on the former and five years with twenty months of parole ineligibility on the latter conviction. Aggravating factors 3 (risk of re-offense), 6 (extent of prior record) and 9 (need for deterrence) were found, N.J.S.A. 2C:44-1a(3), (6) and (9), with no mitigating factors. Both sentences were also run consecutively to an additional sentence imposed for a prior crime.

The charges arose out of Colvin's alleged attempted robbery of a convenience store on October 31, 2004, while threatening the use of a gun, and a subsequent attempt by Colvin to induce his pre- and post-robbery companion not to testify or, alternatively, to testify in a specified manner.

On appeal, Colvin argues:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18-1.

POINT II

THE TRIAL COURT ERRED BY NOT EXCLUDING THE PHOTO OF THE DEFENDANT AT THE WADE HEARING; A REVERSAL IS WARRANTED.

POINT III

THE TRIAL COURT ERRED BY NOT GIVING THE JURY AN APPROPRIATE IDENTIFICATION INSTRUCTION.

POINT IV

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO CONTINUOUSLY ASK LEADING QUESTIONS WHICH VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.

POINT V

THE TRIAL COURT ERRED IN PERMITTING THE LETTER INTO EVIDENCE WHICH WAS CONTRARY TO N.J.R.E. 901.

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

POINT VII

THE SENTENCE IMPOSED ON THE DEFENDANT IS UNCONSTITUTIONAL IN THAT IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

We affirm Colvin's convictions and remand the matter for resentencing.

I.

We reject Colvin's first argument that the trial judge erred in denying his motion, pursuant to R. 3:18-1, for a judgment of acquittal on the charge of armed robbery pursuant to R. 3:18-1. That charge was supported by testimony that Colvin exited a car being driven by Virginia Kiernan and entered a Country Farms store, where, after cruising the store, learning that only one employee was present, and returning to the front counter, he twice demanded money from the store's manager while stating that he had a gun and placing his hand behind him or in his waistband. When the manager did not comply, Colvin went behind the counter, pushed the manager, and tried to open the cash register, without success. The manager then fled the store, and Colvin followed, running from the store's parking lot to a side street where Kiernan's Chevrolet Lumina was parked and entering her car.

After a customer recorded Kiernan's license plate number, the manager contacted the police and, upon their arrival, gave a physical description of the perpetrator as well as a description of the car in which he had departed. Later in the day, upon learning that the police were looking for her in connection with an armed robbery, Kiernan drove to the police department with Colvin, where he was arrested.

It is well established that, in ruling upon a motion for a judgment of acquittal at the conclusion of the State's case, the court must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). In this case, the evidence consisted of a demand by Colvin for the cash register receipts, while stating that he had a gun and gesturing to its location near his waist. This testimony was sufficient to establish attempted armed robbery under State v. Chapland, 187 N.J. 275 (2006), since, like the defendant in Chapland, Colvin "convey[ed] the overall impression of simulating possession of a deadly weapon," id. at 291, while threatening the store manager with the use of the weapon at a time when an attempted robbery was in progress. Id. at 292. The law requires no more.

II.

Colvin also challenges the court's ruling, following a Wade hearing, that his identification by the store manager, after viewing a police-prepared photo array on the day after the incident, was admissible. In this regard, he argues that the hearing was defective because the store employee making the identification, the sole eye witness to the crime, was not called as a witness; only the police detective who conducted the identification procedures appeared. Thus, Colvin claims, the suggestiveness of the array, arising from the fact that only he had a tattoo on his neck, and discrepancies regarding Colvin's perceived age and clothing could not be fully explored in a Wade hearing context.

The record reflects that only Detective Robert Shepherd testified at the Wade hearing. Shepherd affirmed that proper police procedures were followed in preparing the array and permitting the store manager to view it. He testified that, when the manager reached the fourth photograph, the manager called Shepherd over and made the identification of Colvin. The manager was instructed to continue through the array, which he did, but his identification did not change as a result. In a post-identification statement written by the manager, he attested that: "I saw him before, a couple of times. I cannot forget his eyes, his suspicious looking activities."

After testimony established that the photographs depicted white males who resembled Colvin, but that he was the only person shown with a tattoo on his neck, the motion judge enquired whether evidence suggested that the tattoo had figured in the manager's identification. The prosecutor thereupon read an oral description given to the police by the manager as set forth in the police report, which made no reference to a tattoo, stating only that the perpetrator was "a white male 25 to 30 years of age wearing blue jeans, a dark ball cap, [and a] light colored long sleeved shirt . . . . Subject had his left arm either wrapped or in a cast. Subject was six feet to six feet one, muscular build with short hair." The report also stated that "the subject had been in the store before" and that the last time he had been seen was "over the summer." The following colloquy then took place:

THE COURT: [I]s there anywhere in the State's discovery a suggestion that a key factor to the identification or description of this defendant was a tattoo on his neck?

[PROSECUTOR]: The tattoo is not reflected anywhere by the victim in his taped statement or any of the police reports. It wasn't mentioned by anybody.

THE COURT: [Defense counsel], is there anything in the discovery that you received that the tattoo on the defendant's neck was a material factor to his identification?

[DEFENSE COUNSEL]: It doesn't appear anywhere, your Honor, except the arrest report.

. . . .

[The manager] never mentions any tattoo.

After this colloquy, the judge ruled that the identification was admissible, stating:

All right. It strikes the Court that in the event that a determinative or key factor in the identification by the victim who purportedly was an eye witness to the robbery was a tattoo then some further inquiry into the array may be warranted. But that does not appear to be the case based upon the police reports or discovery provided to the defendant.

The judge then found nothing else in the identification procedures or the photographs themselves that was suggestive and, returning to the tattoo issue, remarked that his review of Colvin's photograph did not suggest to him that "the tattoo jumps out in any particular manner." He observed further that the view of Colvin was frontal, and thus the tattoo was only partially exposed. On this basis, the judge found that the array was not "so impermissibly suggestive as to create a substantial likelihood of misidentification."

At trial, the store manager confirmed the testimony of Detective Sheperd regarding the procedures utilized to obtain the photo identification, and that he had written on the back of photo four that he had seen Colvin a couple of times before, and that he could not forget Colvin's eyes and his suspicious activities. The manager then made an in-court identification of Colvin as the person who had attempted to rob him and as the person depicted in the photograph contained in the array. Although the manager testified that he had mentioned the tattoo on the perpetrator's neck to the police, no where in his testimony did he state that the existence of the tattoo provided a basis for his photo identification of Colvin. Rather, he stated: "When you remember, when you identify a person, I go by the face. . . . And I saw him once, so I can clearly identify among many people. . . . I can clearly identify the guy among many people." The manager additionally confirmed that, in his business, he observed people whose activities looked suspicious to him, and that Colvin looked suspicious.

Our review of the record in light of Colvin's arguments discloses no error warranting reversal to have arisen out of the admission of his photo identification by the store manager. We agree that it would have been preferable for the store manager to have testified at the Wade hearing. However, the opportunity for cross-examination of him was presented to Colvin's counsel at trial, prior to the admission of Colvin's photograph, and ample cross-examination occurred thereafter. The record reflects no testimony by the manager to suggest that the manager's identification was in any respect tainted by the absence of neck tattoos on five of the persons depicted in the photo array. We thus affirm the trial judge's conclusion that the identification was not so suggestive as to result in a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). As the result of the manager's observations of Colvin on prior occasions and the other evidence presented at trial that linked Colvin to the crime, identification was not a significant issue for consideration by the jury. Even if it had been, the positive nature of the manager's identification, the length of time that he had to observe Colvin in the store prior to and during the incident, the overall accuracy of his description of Colvin's appearance, and the relatively short one-day period of time between the incident and the identification clearly outweigh any taint arising from the potentially suggestive photo display. Id. at 239-40; see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). We regard the discrepancies between various statements given by the manager to the police regarding the perpetrator's age and whether he was wearing a dark tee shirt or a light long-sleeved shirt to be relevant to the weight of the evidence of the manager's identification, not its admissibility.

IV.

In the circumstances presented, we also do not find reversible error to have arisen from the court's failure, sua sponte, to give the jury either an identification instruction or a cross-racial instruction. State v. Cotto, 182 N.J. 316, 325 (2005). As we have remarked, identification or mis-identification was never a particular thrust of the defense in the matter, and was unmentioned in defense counsel's closing, which focused on whether an armed robbery had taken place. Thus, it was not a "key issue" as to which, under a plain error analysis, failure to give an identification instruction would require a new trial. Ibid.

The failure to give a cross-racial identification charge, similarly, did not constitute plain error, since no evidence suggested that race could have affected the identification; the issue of identification, as we have stated, was not a key one; and Colvin's participation in the incident was independently corroborated. State v. Cromedy, 158 N.J. 112, 132 (1999).

V.

At trial, the judge permitted the introduction of a letter that the State claimed had been written by Colvin, while in jail, and delivered in early November 2004 by an unnamed trusty to another jail inmate, William Peterson, the person who was dating Kiernan at the time of the incident on October 31, 2004, and who had arranged for Kiernan to drive Colvin around the area on that day. At the time of trial, Peterson was a cooperating witness for the State and, as the result of his cooperation, he received a reduced sentence on pending drug charges.

The letter described the events that had taken place, and stated in part, as set forth in the record:

On the way back we stopped at the store to get some stems and lighters and Chor[e] [Boy]. I only had $5, so I just took it and walked out. We got a call and went to the police to see what happened. They said I robbed the guy. That is not true at all.

Your girl told the cops that I said I was going to rob the guy. I don't believe that she said that to them. She will have to go to court and testify against me, and that only means that she was a part of it, because she told them she knew I had a gun and I was going to do it. She should have just told them the truth, that I went in to steal lighters and Chor[e] and stems.

Tell her if she does not want to be a part of this at all, of this shit, do not testify against me in court, or I'll just tell them I went, I went into the store for - just say that she does not know anything at all. And I'll say that she did not know what was going on, and she parked up the road because I went to my friend's house, Rich's wife's house, because I knew the kids . . . .

The letter formed the basis for the State's witness tampering charge.

To authenticate the letter, Peterson was asked how he knew that the letter came from Colvin. Peterson responded that he had been given the information by the trusty; that the letter contained information that Peterson had previously learned, such as the fact that Colvin had spent the night before the incident with Kiernan; and that the letter contained information regarding the incident that Peterson would not otherwise have known at the time. Peterson also testified that, following receipt of the letter, Colvin basically repeated its contents to him in an in-person conversation.

On appeal, Colvin claims that the trial judge erred in admitting the letter delivered to Peterson into evidence, because its authenticity was not proven by direct evidence. We disagree with Colvin's position, finding the circumstantial evidence given by Peterson that we have set forth provided an adequate foundation for the court's ruling. State v. Porambo, 226 N.J. Super. 416, 426-28 (App. Div. 1988); cf. State v. Bassano, 67 N.J. Super. 526, 532-34 (App. Div. 1961) (discussing authentication of telephone call by circumstantial evidence). Peterson's testimony disclosed the existence of a relationship between Peterson and Colvin of sufficient substance that Peterson offered the driving services of his girlfriend, Kiernan, to Colvin; hard-to-know details of the events occurring within the store; and other confirming circumstances that made it likely that Colvin was the letter's author. As such, the testimony and the circumstantial evidence that it conveyed provided the substantial equivalent of the direct evidence of authorship that Colvin claims was lacking. No error in the admission of the document occurred.

We find none of Colvin's remaining arguments, addressed to his conviction, to have sufficient merit to warrant discussion in a written opinion. R. 2:11-3e(2).

VI.

Colvin's sentencing in this matter took place on September 23, 2005, after the Supreme Court had rendered its decision in State v. Natale, 184 N.J. 458, on August 2, 2005, and thus after it had eliminated the use of presumptive sentences. In accordance with Natale, the trial judge, when sentencing Colvin, made no reference to presumptive terms, but instead premised his sentence at the top of the third-degree sentencing range solely on aggravating factors 3, 6, and 9. Moreover, light of State v. Thomas, 188 N.J. 137, 154 (2006), we perceive no constitutional violation in a post-Natale sentence that incorporates aggravating factor 3 in the analysis. However, we regard the judge's invocation of aggravating factor 9 (the need for deterrence) as applicable because of the need to deter Colvin from interfering with the justice system, the crime for which he was convicted, to have constituted impermissible double counting. State v. Kromphold, 162 N.J. 345, 356 (2000). We also note that, in imposing consecutive sentences for witness tampering and shoplifting, the judge neglected to orally consider the factors relevant to such a determination as set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985). We therefore remand the matter to permit the judge to consider Colvin's sentence, anew.

We affirm the conviction of defendant James Colvin, and we remand for resentencing.

 

The record discloses that, at the time of the incident at issue in this case, Colvin had been released on bail for two days, while awaiting sentencing on that prior crime, to which he had pled guilty.

The motion for judgment of acquittal addressed both charges. However, on appeal, defendant raises arguments only with respect to his indictment for armed robbery.

The witness, who is from India, stated that Colvin "put his hand behind the waist," and on another occasion that he "put the hand behind."

The shoplifting conviction was premised upon a written admission by defendant to a fellow jailmate that he took narcotics paraphernalia from the store.

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

According to Peterson, Chore Boy is like Brillo and is "used for screening to put on a pipe to smoke crack." He explained that "stems" are glass flower holders that are "what they use to smoke out of."

(continued)

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A-1393-05T4

March 21, 2007