STATE OF NEW JERSEY v. KEVIN HUGHES, A/K/A KHALIF HUGHES, KEVIN JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1466-06T41466-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN HUGHES, A/K/A KHALIF

HUGHES, KEVIN JOHNSON,

Defendant-Appellant.

 

Submitted January 27, 2009 - Decided

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 04-5-2164-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On May 28, 2004, an Essex County Grand Jury indicted defendant, Kevin Hughes, charging him with a single count of second-degree robbery, N.J.S.A. 2C:15-1. Following a trial in November 2005, a jury convicted defendant of the charged offense. The court imposed a seven-year prison term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following legal arguments:

POINT I

THE ADMISSION IN EVIDENCE OF HEARSAY TESTIMONY THAT THE SECURITY OFFICER TOLD THE VICTIM THAT THE MAN LIVING IN ROOM 625 WAS THE PERSON WHO "ROBBED" HIM, VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. (1947), ART. 1, PARS. 1, 9 AND 10. (Not Raised Below).

POINT II

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We affirm.

At approximately 11:00 p.m. on September 19, 2003, Larry Coleman, who lived at the Riviera Hotel in Newark, returned to the hotel and took the elevator to go to his room on the seventh floor. As the elevator door closed, another man, later identified as defendant, rushed in and took a handkerchief and held it up near his chin. When Coleman got out of the elevator on the seventh floor, so did defendant, who remarked to Coleman that he was "going down the hall to see a friend." Coleman described what happened next:

I turned and went towards my room. While I was at my room, I was fiddling in my pocket for the key to put in the door. As I was doing that, [defendant] brushed past me . . . .

And as I turned, [defendant] was coming past me and just knocked me out. I remember . . . feeling pain, thinking to myself: Ouch, this hurts, this is wrong. And I don't know whether I got hit again or not but . . . I woke up with a lady standing over me screaming. I had a lot of blood and stuff on me, kind of laying in blood.

Q Okay, so what do you remember again, he tapped you on your shoulder and then what happened?

A As he went past me, he turned so that all of his weight and the full force of his punch was delivered directly to me.

. . . .

. . . I got up, my money was gone but I still had my key. I went into the room and fumbled into the bathroom and found a rag, ran some cold water to wipe the blood and stuff off my face as best I could. I went downstairs to security and I was telling them what happened. . . . I even asked them if they saw the gentleman and they said yeah, . . . we know him. They told me what floor he was on. Now, while I was there waiting, they called the police and they called the ambulance.

While I was waiting for them, his wife or girlfriend, I don't know which, came down and one of the people on security pointed her out to me and said that was his girlfriend. She had on a . . . bathrobe . . . and it looked as if she had came down to . . . see how bad I was hurt, or even if I was dead because I was laid out there . . .

At that point, defense counsel objected, and the court sustained the objection, directing Coleman to limit his answers to the prosecutor's questions.

He testified that he had seen the person that struck him "around before." He described his assailant as a "really large guy, [180] to [310] pounds, about 6'1, 6'3. Large stomach, . . . dreads."

Following the assault, Coleman was hospitalized overnight where he was treated for a broken nose and fractures of his "cheek and face." Several days after the incident, he went to the police because he was "in no shape" to go immediately.

At the police station, Coleman was shown six or seven photographs. He testified that while being shown the photographs, the police officer "gave me a lecture about if I couldn't identify [my assailant], I had to be very positive and he took the photographs and put [them] down. One at a time, he'd turn one up. I'd look at it. Turn another one up, look at it, until I got to the photo that I was able to identify."

Detective Bobby Bullock interviewed Coleman at police headquarters. Coleman described his assailant to the detective as an African American male, "a big guy." Coleman told Bullock that the person who assaulted him lived at the Riviera Hotel, and that he (Coleman) "received information from security officers that the person that robbed him lived in room 625."

After Bullock obtained that information, he went to the Riviera Hotel and knocked on the door to room 625. Defendant opened the door and Bullock asked him to accompany him to police headquarters and defendant agreed. There, Bullock provided defendant with his Miranda warnings and defendant told Bullock that he understood his rights. Bullock asked defendant's permission to take his photograph, and defendant agreed, and consequently Bullock took two photos of him.

After interviewing defendant, Bullock contacted Coleman, and asked him to come to police headquarters. There, Detective Richard Flornoy, who was not investigating the case, prepared the photo array, which contained defendant's picture, along with pictures of five or six other individuals. When Flornoy showed Coleman the photo array, Coleman positively identified defendant as the person who robbed him. Flornoy testified that Coleman was certain about his identification of defendant. In the courtroom, Coleman identified defendant as his assailant.

Defendant did not testify at trial. He presented two alibi witnesses. His brother, Darren Hughes, testified that on the evening of the assault he was out with defendant, returning with him to the hotel at 11:00 p.m. Defendant's girlfriend was in the room when they arrived. Defendant's brother stayed until 11:45 p.m.

Defendant's fiancée, Terry Sanders, testified that she had been living with defendant in the hotel. At approximately 11:00 p.m., defendant and his brother arrived back in the room and defendant's brother stayed until 11:45 p.m. She and defendant remained in the room the remainder of the night.

Against this factual background, we turn to defendant's first point on appeal, challenging Detective Bullock's testimony that Coleman told him that the security officers in the hotel told Coleman that the man who robbed him "lived in room 625" of the hotel. Defendant also challenges Coleman's testimony that when he went to the security desk in the lobby after the assault, security officers told him they knew the man who attacked him, and what room he was in, and that they pointed out his girlfriend when she came downstairs later that evening.

Because defendant failed to object to this testimony during the trial, we address his arguments under the plain error standard. R. 2:10-2. Accordingly, unless the evidence is of such nature as to have been "clearly capable of producing an unjust result," we disregard it. Ibid. And here, we find no plain error.

We agree with defendant that the statements by Bullock and Coleman that the security officers indicated they knew that the person who assaulted Coleman lived in room 625 was hearsay. The statements were offered primarily for the truth of the matter, that defendant assaulted Coleman and defendant lived in room 625 of the hotel. N.J.R.E. 801(c) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.").

That said, in the context of all of the evidence, we conclude that the statements were not clearly capable of producing an unjust result. Although the information allowed the police to focus their investigation on defendant, Coleman independently chose defendant's photograph from a six- or seven-person photo array that had been prepared by a detective who was not involved in the investigation. As Coleman testified, he was fully informed by the officer before selecting defendant's photograph that he had to be "very positive" in making his decision. Coleman also testified that he had seen defendant in the hotel before the assault, but did not know his name. He was "very certain" when he picked defendant's photograph from the photo array. On cross-examination, defense counsel had a full opportunity to challenge Coleman's identification of defendant.

Consequently, given Coleman's identification of defendant from the photo array, the description of defendant he gave to the police, his prior familiarity with defendant by seeing him in the hotel, and his identification of defendant in court, we conclude that although the testimony by both Coleman and Bullock as to what the security officers told Coleman was hearsay, it was not clearly capable of producing an unjust result.

We also reject defendant's argument that his sentence was manifestly excessive. The court imposed a seven-year prison term for the second-degree offense, finding aggravating factor N.J.S.A. 2C:44-1a(3), the risk that defendant would commit another offense, and N.J.S.A. 2C:44-1a(9), that the prison term was required to deter defendant and others from violating the law. Although the State requested that the court impose an extended prison term, the judge rejected the State's request and imposed the seven-year term, a midrange, for a second-degree offense, which includes a term of between five and ten years. N.J.S.A. 2C:43-6(2). The sentence was grounded in competent, credible evidence; the court followed the sentencing guidelines and applied correct legal principles in exercising its discretion. State v. Roth, 95 N.J. 334, 363-65 (1984). The sentence does not shock our judicial conscience.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-1466-06T4

March 3, 2009