STATE OF NEW JERSEY v. ALAN MARSHALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4149-05T44149-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALAN MARSHALL,

Defendant-Appellant.

____________________________________________________

 

Submitted March 14, 2007 - Decided April 2, 2007

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 04-10-3407.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Donald T. Thelander, Assistant

Deputy Public Defender, of counsel and on the

brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Joan E. Love, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant was convicted of second degree robbery as a lesser included offense of first degree robbery (count one) and third degree aggravated assault by attempting to cause bodily injury as a lesser included offense to second degree aggravated assault (count two). Defendant was sentenced on count one to ten years with an 85% parole ineligibility term under NERA and to a concurrent five year term for the aggravated assault. He contends that he was prejudiced by the introduction of testimony concerning "prior criminal activity," and that the prejudice was not cured by a curative instruction. Specifically, he argues:

POINT I THE ADMISSION OF HIGHLY PREJUDICIAL TESTIMONY,

WHICH INDICATED THE DEFENDANT HAD A RECORD OF

PRIOR CRIMINAL ACTIVITY, WAS SO COMPLETELY

PREJUDICIAL AS TO HAVE MANDATED THE TRIAL

COURT TO SUA SPONTE DECLARE MISTRIAL. THE

PREJUDICE TO THE DEFENDANT COULD NOT BE UNDONE

BY A CURATIVE INSTRUCTION. THE FAILURE TO

DECLARE MISTRIAL, DEPRIVED THE DEFENDANT OF

HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO

DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S.

CONST. AMENDS. V, VI AND XIV; N.J. CONST.

(1947), ART. I, PARS. 1, 9 AND 10) (Not Raised

Below)

POINT II DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE,

UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH

THE CODE OF CRIMINAL JUSTICE

We find no merit to the contentions and that only the following discussion is necessary in a written opinion. R. 2:11-3(e)(2).

Defendant is the brother of Shonn Haskett's fiancée. The defendant and Haskett got into a confrontation over his brother's personal property when defendant went to Haskett's apartment while his brother was incarcerated. Defendant sought to obtain his "pair of brown Fubu's, a pair of red Felines and a pair of beige Timberlands," and Haskett told defendant she would check with her fiancée when she saw him the next day. They continued to talk as both left the building when defendant "punched" her in the left eye. According to Haskett, she was hit "so hard" that she was "lift[ed] [] off [her] feet" and knocked "backwards into a fence." Defendant then "continued to kick and stomp on [her]" until Haskett's mother screamed out the window. He thereupon "snatched" her jewelry and "picked [her] pocketbook up and threw it in his truck, his jeep," and drove off. Defendant took her diamond necklace worth about $300 to $500, a chain with a medallion, and miscellaneous items in the purse. Haskett suffered "broken blood vessels in [her] left eye and a broken bone in [her] occipital lobe."

Haskett reported the crime. She subsequently identified defendant at police headquarters. After she gave defendant's name and address to the police, "they pulled his picture on the computer screen," after which she "pointed to it [and] said that's it." She signed and dated the photo, which she said on direct examination she viewed at the "Police Robbery Homicide Division." There was no objection to the statement. The photo itself was not offered into evidence.

Defendant argues that "the only recourse available to the trial court to eradicate the prejudice resulting to the defendant [from the reference to the source of the photo] was to have sua sponte declared a mistrial." We disagree.

Certainly, the photo identification testimony was unnecessary in light of the fact that defendant was the brother of the victim's fiancée and she had identified him by name and description. Moreover, from a window, the victim's mother observed defendant "beating and punching" her daughter, while her daughter was in "a fetal position." And a neighbor, Matthew Reihing, observed a man punch Haskett "on the left side of her face," knocking her to the ground. He also observed the man, who he could not identify, "kicking" the victim. Reihing testified that the perpetrator "beat her like a damn dog" but he could do nothing because another man got out of the car with a gun, and the two then drove away.

Reihing confirmed that the perpetrator "snatched her chains off" and took earrings and necklaces from Ms. Hackett. The testimony also reveals that defendant's mother returned Ms. Haskett's property to her "the next day."

In his summation defendant asserted that the "level of bodily injury" did not constitute aggravated assault and that, despite how defendant treated Ms. Haskett, the "dispute over used gym shoes, sneakers, [or] tennis shoes," did not constitute a "robbery."

Perhaps because Haskett and her mother knew defendant, there was no objection to the reference to the photo. Moreover, the trial judge in her final instructions told the jury:

During the testimony of the victim, Miss Haskett, she mentioned to you that when she was at the police station there were photographs pulled up on a computer, I believe she said, which was used to [] assist in the identification of the defendant as the perpetrator of the offense. She also was shown a photograph by the prosecutor while she was testifying; that she testified she signed the back of, identifying Mr. Marshall as the person who committed these offenses.

Now, you may consider this testimony. However, the physical evidence, the photograph has not been admitted into evidence and will not be given to the jury, but you may consider the testimony that she did give in front of you.

Now, obviously the conclusion that you may come to based on what you heard, that the police on their computer and in other physical form had a photograph of Mr. Marshall which was used, which was used to be shown to the victim, you are not to consider the fact that the police had a photograph of the defendant as prejudicing him in any way. The photographs are not evidence that the defendant has ever been arrested or convicted of any crime. Such photographs as may have been used here come into the hands of law enforcement from a variety of sources, including but not limited to driver's license applications, passports, Alcohol Beverage Commission Identification cards and various forms of government employment and private employment, including but not limited to license applications that the Casino Control Board uses and security guard applications and from a variety of other sources totally unconnected with criminal activity. So even though you may consider what the victim said she was exposed to, you may not consider the fact that the police had any photograph of the defendant as prejudicing him in any way.

We are more than satisfied that Haskett's testimony that the detective showed her a computer-generated photograph from the robbery/homicide bureau cannot be said to have constituted plain error requiring reversal. Given all of the testimony and the adequate curative instruction, which directed the jury not to place significance on the source of the photo, there is no basis on which to reverse the conviction.

 
This was a post-Natale sentence, see State v. Natale, 184 N.J. 458 (2005), and defendant, although extended-term eligible, did not receive an extended term. We do not regard the sentence as excessive. State v. Natale, supra, 184 N.J. at 488; State v. Roth, 95 N.J. 334 (1984). Accordingly, the judgment is in all respects affirmed.

The judgment incorrectly states that the charges were amended.

Defendant was also sentenced to concurrent terms as a result of a negotiated plea to other charges entered before sentencing.

Ms. Haskett's mother did not want defendant "in the house."

(continued)

(continued)

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A-4149-05T4

April 2, 2007