STATE OF NEW JERSEY v. LAMAR HARVEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1293-05T41293-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMAR HARVEY,

Defendant-Appellant.

_________________________

 

Submitted October 7, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 03-12-2497.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lamar Harvey and two co-defendants, Tiwan Harvey and Darnell Ivery, were charged in Monmouth County Indictment No. 03-12-2497 with the following: second-degree conspiracy, in violation of N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count two); third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b)(count three); second-degree possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count four); and second-degree unlawful possession of a firearm by a felon, in violation of N.J.S.A. 2C:39-7(b) (count five). The co-defendants entered negotiated plea agreements, and defendant stood trial alone. Defendant's first trial ended with a hung jury. A retrial was held on seven days between April 26, 2005 and May 6, 2005, at the conclusion of which a jury found defendant guilty of all charges.

On August 19, 2005, defendant was sentenced to an extended term of thirty-eight years pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two; a concurrent term of four years with a two-year parole ineligibility period on count three; and a concurrent term of seven and one-half years on count five. Counts one and four merged into count two.

The trial evidence may be summarized as follows. In 2003, Fred Roberts was employed by Freehold Raceway Park to collect the money deposited into off-track betting machines. Roberts' responsibility was to walk through the facility with a security guard and empty the money from the machines into a canvas bag.

On the evening of September 20, 2003, Roberts performed his duties accompanied by security officer Joe Biel. As Roberts approached the last bank of machines, he felt someone tugging at his canvas bag. Roberts then pulled the bag forward and, as he turned, he was struck on the side of his head and fell to the floor. When Roberts looked up, he saw a black man wearing a baseball hat with a "western style kerchief" tied over his face. These events were captured in a series of photographs by surveillance cameras in the racetrack facility.

Roberts then staggered into a nearby area for "sanctuary." He subsequently received first aid treatment at CentraState Hospital.

Biel testified that he saw a man strike Roberts in the head with a "silver weapon." That man then took the bag of money from Roberts and ran down a nearby staircase towards the exit. Although unable to catch him, Biel followed the individual outside where he observed the man drive away in a car with two other black men; Biel recorded the vehicle's license plate.

Sgt. James Craparotta of the Jamesburg Police Department learned that the car in which the robbers had fled was registered to Jamie Williams. Craparotta began a surveillance of Ms. Williams' residence on the night of the robbery. Craparotta observed defendant leave Ms. Williams' residence in her vehicle. Craparotta and Patrolman Smith stopped the vehicle and arrested defendant.

Craparotta and Detective Giglio from the Freehold Borough Police Department then went to Ms. Williams' apartment. The officers explained to her why they were there, and Ms. Williams consented to a search of her apartment. The police found "thousands of dollars" in cash stuffed into a man's shoe and a silver handgun in a drawer.

Defendant testified and denied any involvement in the robbery at the racetrack. He admitted that the $9,500 found in his shoe in Ms. Williams' apartment belonged to him, but explained that the cash came from drug sales.

On appeal, defendant raises the following arguments for our consideration:

POINT I

THE JUDGE'S INADEQUATE INQUIRY INTO THE JURORS' CONTACT WITH DEFENDANT OUTSIDE THE COURTROOM, WHILE HE WAS IN RESTRAINTS AND IN THE CUSTODY OF SHERIFF'S OFFICERS, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, XIV; N.J.CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

THE JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT DEFENDANT COULD BE FOUND GUILTY OF ROBBERY OR THEFT AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF OTHERS INVOLVED HAD THE MENTAL STATE FOR ARMED ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J.CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.

POINT III

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY ALLEGED ACCOMPLICES DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J.CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

Having reviewed these contentions in light of the record and the applicable law, we affirm defendant's convictions and sentence.

During a recess on the second day of trial, a juror returning from the ladies' room saw defendant, two sheriff's officers and the prosecutor waiting for an elevator. The trial judge questioned the juror as to what she had seen and she replied that defendant appeared "like he appears" in court, and that she did not talk with defendant, the officers or the prosecutor. The juror also stated that she did not discuss this with any of the other jurors. The trial judge questioned the juror further:

THE COURT: Let me ask you this. When you saw Mr. Harvey with the officers did anything run through your mind?

A JUROR: No.

THE COURT: Okay. So, you remember all the instructions that I gave at the beginning after you were placed under oath[,] all the instructions that the Court gave about the laws that apply, beyond a reasonable doubt, the State has the burden of proof and the presumption of innocence, the defendant is presumed innocent. You remember those instructions?

A JUROR: Yes.

THE COURT: Can you still follow those instructions?

A JUROR: Sure, yes.

Defendant moved for a mistrial; the judge denied the motion and brought the juror back into the courtroom for further instructions:

THE COURT: I'm just going to talk to you a little bit again. I just wanted to say the mere fact that you saw Mr. Harvey and the two officers and the Prosecutor in the corridor at lunchtime has no bearing whatsoever on this case. And I would just like to remind you, ma'am, of what I've already instructed you on, the presumption of innocence and the fact that the State has the burden of proof. You've indicated to me that you remember those instructions.

And I'm just reminding that you must apply those instructions at the point of deliberations. So, well, even at this point the presumption of innocence and the burden of proof applies. So, let me just ask you, can you still apply those instructions as we sit here right now?

A JUROR: Yes.

THE COURT: And can you continue to do so throughout the trial?

A JUROR: Yes.

THE COURT: Thank you.

The judge then instructed the juror not to discuss the situation with any other members of the jury.

On the following day of trial, during a recess, another juror observed the defendant coming out of an elevator accompanied by sheriff's officers. Once again, defendant moved for a mistrial; the judge brought the juror out for questioning. The juror told the judge that when she saw defendant, he "look[ed] like he looks right now in court." The juror stated that she saw defendant "from his chest up," for a brief moment, and then he went back into the elevator.

The judge then questioned this juror in the same manner as he had the previous juror the day before, and also instructed this juror not to discuss the matter with any other members of the jury. The juror responded that she had not discussed the matter and would not do so in the future.

The juror also stated that one of the jurors had mentioned, while waiting to be brought into the courtroom, that "they're bringing somebody in." Upon hearing this, defendant once again renewed his motion for a mistrial, this time noting that at least one juror "is contemplating whether someone is being brought in." The court denied this motion. The court, thereupon, brought the entire jury back into the courtroom and once again instructed them as to the burden of proof requirements, and explained that various hearings must be held outside the jury's presence, and that the jury was not to concern itself with those hearings.

Neither of the two jurors questioned by the judge had stated they saw defendant in any sort of restraint. Nonetheless, defendant brought a post-trial motion for a new trial, arguing that defendant was, in fact, "in shackles, was wearing . . . the leather belt[] where his hands are kept at waist side." In denying this motion, the judge noted that "[n]either of the jurors indicated that they saw [defendant] in a condition that would have indicia of custody. . . ."

On this record, we reject as without merit defendant's contention that the trial judge's questioning of the two jurors was inadequate to protect his right to a fair trial. We recognize that

[t]he right to a fair trial before an impartial jury is imbedded in the criminal law by virtue of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, paragraph 10 of the New Jersey Constitution. As a corollary to that right, "one accused of a crime is entitled to have his . . . guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial."

[State v. Zhu, 165 N.J. 544, 553 (2000) (quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 1934, 56 L. Ed. 2d 468, 475 (1978)).]

The risk of seeing a defendant in shackles is that a jury might "consider such a defendant 'as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.'" State v. Artwell, 177 N.J. 526, 534 (2003)(quoting Kennedy v. Cardwell, 487 F.2d 101, 106 (6th Cir. 1973)). Seeing a defendant in prison garb may prejudice the jury in a similar manner. Id. at 534-35.

In State v. Sykes, 93 N.J. Super. 90 (App. Div. 1966), several jurors waiting outside the courtroom after the lunch recess saw the defendant walk by in handcuffs and escorted by an officer. Id. at 91-92. Under those circumstance, we concluded that the trial judge properly instructed the jury that:

"the fact that defendant is presently under sentence in New Jersey State Prison and is serving that sentence is not any proof whatsoever that he committed the crime or crimes with which he is charged and the fact that he is in State's Prison is not to be considered by you."

[Id. at 93.]

In affirming the defendant's conviction, we noted that a case in which the defendant was seen in shackles outside the courtroom was not presumptively as prejudicial as a case in which the defendant attended trial in restraints. Id. at 94.

Where, as here, a juror is exposed to extraneous information about a defendant, beyond that which is pertinent to the question of guilt or innocence, the trial court is "obliged to interrogate the juror" to determine both whether that juror has been tainted and whether the information has been relayed to other jurors. State v. R.D., 169 N.J. 551, 558 (2001).

State v. Loftin, 191 N.J. 172 (2007), upon which defendant relies, is factually distinguishable to a degree rendering it inapposite to his argument. In Loftin, a juror had made racially biased statements during the trial of an African-American defendant. The trial court removed that juror from deliberations. However, the Supreme Court questioned whether it was possible that the juror had "compromised the impartiality of the entire panel" prior to his removal. Id. at 193. The Court observed that "'an allegation that a juror is racially biased strikes at the very heart of the defendant's right to a trial by an impartial jury,'" id. at 195 (quoting State v. Phillips, 322 N.J. Super. 429, 442 (App. Div. 1999)), and held that the trial court's failure to have conducted a voir dire to determine whether the juror's comments had tainted the other jurors deprived defendant of a fair trial. Id. at 195-96.

Here, there was no such extreme situation as in Loftin. Rather, upon learning that two jurors had seen the defendant in the company of sheriff's officers, the trial judge separately interrogated each juror outside the presence of the remaining jury. Having voir dired each juror, the trial judge concluded that the two jurors remained capable of abiding by the instructions he had given them and could decide the case according to the evidence presented. Moreover, neither of the jurors who saw defendant outside of the courtroom observed him to be in any sort of restraints as in Sykes, supra, 93 N.J. Super. at 91-92. Thus, under the totality of the circumstances, we conclude that the trial judge's voir dire of the two jurors was sufficient to eliminate any undue prejudice to defendant.

We also reject as wholly without merit defendant's argument that the trial judge should have given the jury an accomplice liability charge in accordance with State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993). Not surprisingly, this issue was not raised below for one salient reason: defendant took the stand and denied having any involvement in the robbery at Freehold Raceway Park. In light of that testimony, the trial judge had no obligation to instruct the jury to consider whether defendant was guilty of the lesser offenses of robbery or theft as an accomplice, even though one of his co-defendants may have been guilty of armed robbery as a principal. As defendant argues on appeal, he "maintained that he had no involvement in a planned theft or robbery at the racetrack. In essence, the defense was that the co-defendants committed the robbery at the racetrack and sought to blame defendant." Such a defense in no way gives rise to the need for an accomplice liability charge to the jury. R. 2:11-3(e)(2).

We turn next to defendant's contention that the trial judge's instructions concerning the testimony of his co-defendants Tiwan Harvey and Ivery "did not inform the jurors that their guilty pleas to conspiracy to commit robbery could not be treated as substantive evidence of defendant's guilt." We find no merit to this argument.

Both co-defendants testified pursuant to plea agreements calling for the State's recommendation of a five-year term for second degree conspiracy and dismissal of all other charges. Tiwan Harvey stated that during the drive to the racetrack, defendant commented that he was going to "hit" the racetrack because he needed money. Tiwan Harvey accompanied defendant into the racetrack. He saw him approach Roberts at the betting machines while covering his face with a red or black handkerchief and pulling a shiny chrome object from his pocket. Tiwan Harvey left the racetrack at that point to rejoin Ivery in the waiting car. Shortly thereafter, defendant emerged carrying Roberts' money collection bag with a security guard in pursuit.

Ivery testified that he drove defendant and Harvey away from the racetrack. During that ride, defendant stated that he punched a man and took the money bag. Defendant then removed the money and threw the collection bag out of Ivery's car. When Ivery later learned that defendant had been arrested, he turned himself in and gave a statement to the police.

During the final jury charge, while addressing the issue of credibility generally, the trial judge instructed the jury on the limited use it could make of the co-defendants' testimony:

State witnesses, Tiwan Harvey and Darnell Ivery each stated that his testimony in this case results from one of the terms of a plea agreement he has entered into with the State. The terms of that plea agreement were explored in the direct examination and the cross examination of each witness, so that you could be aware of the existence of the plea agreement and could consider it on its terms as one more factor in evaluating the witness's testimony.

In weighing the testimony of each witness you may consider whether in order to obtain terms favorable to himself he told an untruth to the Court and to you, or whether in order to obtain terms favorable to himself, he agreed to tell the truth and did so.

If, considering all factors, you believe the witness to be a believable and reliable witness, you have the right to accept his testimony as that of any other witness. If you find him unbelievable or unreliable as a witness, you should reject that testimony.

. . . .

You have heard evidence that witnesses, Tiwan Harvey and Darnell Ivery, have previously been convicted of a crime. The evidence may only be used in determining the credibility or believability of these witnesses' testimony.

As defendant acknowledges, a cooperating witness's guilty plea is "definitely admissible to affect his credibility as a witness." State v. Stefanelli, 78 N.J. 418, 433 (1979). A trial judge is "obligated . . . to give the jury a proper cautionary instruction as to the limited use of this testimony for credibility purposes . . . ." Id. at 434.

Defendant's reliance upon State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005), is misplaced. In that case, the trial court had improperly "bolstered the credibility" of the testifying co-defendants "when he advised the jury that a guilty plea could not be accepted unless the judge was satisfied that the person entering the plea was, in fact, guilty." Id. at 123. In light of that improper instruction, we held that a "limiting instruction must clearly define not only the limited use of the testimony but also the prohibited use of the testimony." Ibid. In Murphy, "[s]uch a two-fold instruction [was] particularly important . . . because the only evidence implicating defendant . . . was provided by the co-defendants who had accepted plea agreements." Ibid.

Here, the trial judge made no such improper statement to the jury as in Murphy. Moreover, the co-defendants' testimony was not "the only evidence implicating defendant" in this case. Ibid.

Sgt. Craparotta observed defendant exit the residence of Ms. Williams, the person to whom the vehicle used in the robbery was registered. Upon searching Ms. Williams' residence, the officer found $9,500 in cash in a man's shoe and a silver handgun in a back bedroom. The handgun, according to Craparotta, was "seated in" a red bandana which was tied in the rear like a mask. Also discovered in that bedroom was mail addressed to defendant. Further, the jury was presented with the recordings of the security surveillance cameras installed at the racetrack. Under the circumstances, we conclude the trial judge's instruction on the co-defendants' credibility was proper.

Finally, defendant argues that his sentence is excessive because (1) the judge double-counted the aggravating factor of the "seriousness of harm inflicted on the victim;" and (2) the disparity between defendant's sentence and those of his co-defendants "violates the fundamental tenet of sentencing under the Code that the focus must be on the severity of the crime." We reject both contentions as wholly without merit. R. 2:11-3(e)(2). We add only the following brief comments.

N.J.S.A. 2C:44-1(a)(2) states that "[t]he gravity and seriousness of harm inflicted on the victim" may be considered as an aggravating factor in determining sentence. In applying this factor to defendant, the trial judge stated:

I find that the victim didn't even know what hit him. That Mr. Roberts didn't see it coming, and I do believe that it was serious harm that qualifies for aggravating factor number two.

In many ways, the facts of this case put Mr. Roberts in a position where he was substantially incapable of even defending himself.

The trial judge relied primarily on the character of the attack, rather than specifically on defendant's use of force or a weapon, in concluding that Roberts was unable to defend himself. Under this circumstance, we conclude the trial judge did not improperly double-count aggravating factor number two.

Regarding defendant's disparity argument, we note that both co-defendants entered guilty pleas to second-degree conspiracy; all other counts of the indictment were dismissed as to them. The plea-bargained sentence for each was a five-year term with an eighty-five percent mandatory parole ineligibility period. By contrast, defendant was convicted of all charges in the indictment, including first-degree armed robbery. Moreover, defendant has a 1999 conviction for unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-4(a). Therefore, defendant was eligible for extended-term sentencing under the Graves Act. N.J.S.A. 2C:43-6(c). His conviction for first-degree robbery rendered him eligible for a mandatory eighty-five percent parole ineligibility period pursuant to NERA. N.J.S.A. 2C:43-7.2(a), (d)(9).

Given the disparity in the charges on which defendant was sentenced, as contrasted with the charge on which each of his co-defendants was sentenced, we conclude that this is not a situation of imposing "dissimilar sentences . . . on similar defendants." State v. Roach, 146 N.J. 208, 233 (1996).

 
Affirmed.

(continued)

(continued)

17

A-1293-05T4

October 24, 2008