STATE OF NEW JERSEY v. WILLIE L. TANNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3509-06T43509-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE L. TANNER,

Defendant-Appellant.

__________________________________________

 

Submitted May 13, 2009 - Decided

Before Judges Rodr guez, Payne and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 04-01-0089 and 04-01-0106.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Willie L. Tanner was convicted of first degree attempted murder, N.J.S.A. 2C:11-3a; five counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and several other related offenses. The judge imposed concurrent terms aggregating forty-five years with a NERA parole disqualifier. We affirm the convictions and sentences, except that we reduce the sentence on count twenty-five to three years.

These are the salient facts.

On August 5, 2003, Chinna Kundurv was working at an Exxon gas station on Route 1 in South Brunswick. At approximately 3:15 a.m., a man entered the store wearing a black mask and a loose-fitting, long white t-shirt. The man was about five-feet-six-inches tall and "a little fat." He was holding a white or silver gun, which he pointed at Kundurv's head. The man told Kundurv to open the safe but Kundurv did not have the keys. Instead, the man took money from the cash register and six dollars from Kundurv's wallet before leaving the store. A review of the video surveillance tape established that the man who committed the crime was an African-American male, of medium-to-stocky build, who held the gun in his left hand.

The next day, Abdul Imran was working as an attendant at a Sunoco gas station located on Route 1 in Edison Township. Sometime between midnight and 1:00 a.m., he was sitting inside a cubicle by the gas pumps when a car stopped nearby. When he opened the door to the cubicle, the car drove off and a man entered the cubicle holding a silver-colored gun. The man demanded money. Imran described the man as a black male, between five-feet-six-inches and five-feet-ten-inches tall, with a medium build and mustache. He wore a black, open-faced mask, a white baggy shirt and dark gloves. The man took all the cash in Imran's pocket and the cash register before fleeing on foot. Imran activated the security alarm. The police searched the immediate area but did not find the suspect or any physical evidence. The surveillance videotape confirmed Imran's version of the robbery.

On August 28, 2003, Surinder Singh was working at a Krauszer's grocery store on Livingston Avenue in North Brunswick. Between midnight and 1:00 a.m., a man wearing a mask entered carrying "a silver handgun with a white handle." The man jumped over the counter at the front register and ordered two store employees, Sharad Desai and Narendra Yash, to lie down on the floor. When Yash looked up, the intruder hit him on the left side of his head with a fist and a gun. The masked man did not see Singh, who was behind the counter at the back of the store.

The man took the cash from Desai's wallet and Yash's pocket and ordered Desai to open the cash register. When the man backed up, he began to trip over Yash's legs. The man fired a shot at Yash that went past Yash's head. The man fired a second shot that hit Desai in the back as he was lying face down on the floor.

Singh had hidden himself in a small storeroom when the man entered but came out when he heard gunshots, swinging a mop and throwing a twelve-pack of soda cans at the man. The man left the store and fled south on Livingston Avenue. Singh called 9-1-1.

A review of the surveillance tape showed a black male of "small to medium build," wearing a white T-shirt, a ski mask with a white North Face logo and a watch on his right wrist. The man approached the counter, holding a gun in his left hand and pointing it in all directions. The tape also showed the victims and depicted Singh chasing the suspect out of the store while holding a mop. Police investigators recovered the second discharged bullet. Testing confirmed the projectile was .38 caliber/.357 Magnum caliber.

At approximately 9:30 p.m. on September 10, 2003, a Shell gas station in Edison was robbed of approximately $600. The attendant, Cihan Polat, described the suspect as a black male who carried a silver gun and wore a baggy white T-shirt, baggy blue jeans, and a black mask with a North Face emblem. The mask covered the suspect's face, except for cut-outs over the eyes. The suspect was approximately five-feet-six-inches to five-feet-eight-inches tall, with a medium build.

Polat was alone when the man entered the attendant booth, "frisked" him, and took money from the cash register. The man then fled on foot across the station towards a building next to the Waldon Village parking lot. After the suspect rounded the corner of the building, Polat saw a brown four-door Honda or Acura pull out of the parking lot, make a left onto Old Post Road, and then turn left onto Route 1 South. The surveillance videotape confirmed Polat's account of the robbery.

On October 2, 2003, at approximately 9:05 p.m., East Brunswick Township Police Officers Mark Csizmar and Jason Rios were in an unmarked patrol car when they observed a man walking in the middle of West Amherst Street. They followed him in their vehicle as he walked down several streets towards Route 18 before entering the parking lot of a small strip mall on Highland Street. The strip mall was located near two gas stations on Route 18. The man walked to the back of the parking lot and into some bushes against a fence. When the man entered the bushes, Csizmar exited the patrol car to investigate, believing the man was going to urinate.

The man, later identified as defendant, was five-feet-seven-inches tall with a stocky build. He wore a white t-shirt, baggy jeans, work boots, a black jacket, a black knit cap and a silver watch on his right wrist.

When Csizmar pointed his flashlight, defendant pulled a silver handgun from his waistband with his left hand and threw it onto the ground. Csizmar drew his service revolver and ordered defendant to lie down on the ground, where Rios handcuffed him.

Defendant had no identification with him but said his name was Mookie Jackson and that he lived in Franklin Township in Somerset. He told Csizmar that he found the gun, a loaded, .25 caliber, semi-automatic silver Taurus, in New Brunswick. This was not the same gun used during the robbery in South Brunswick on August 5, 2003.

After searching him for other weapons, Rios ordered defendant to sit on the curb; he proceeded to remove defendant's boots as Csizmar called for a transport vehicle. Defendant jumped up and began running through the parking lot towards Route 18, where he entered the northbound lanes into oncoming traffic. Csizmar and Rios gave chase. Two other officers tackled defendant when he left the roadway. As Csizmar approached, he told defendant, "you know, it's only a gun charge, it's not a reason to try and kill yourself." Defendant replied, "if you knew what I did you would run, too." Defendant had a small amount of marijuana in his possession.

After receiving Miranda warnings, defendant was taken to East Brunswick police headquarters. Defendant was again read the Miranda warnings, which he initialed and signed with his left hand. He told the interrogating officers that his name was Mookie Jackson and gave an incorrect address. The automated fingerprint identification system revealed that defendant's real name was Willie Tanner, and that his last two known addresses were in Somerset.

Officers went to defendant's residence and, after confirming that defendant lived there and after obtaining his mother's consent, searched the basement where he stayed. The search uncovered a shoe box containing money, a white T-shirt, Timberland shoes and two spent shell casings from a .35 caliber gun. Officers also searched the residence of defendant's girlfriend, also with her consent. They were given a plastic bag containing a white T-shirt and a pair of dark blue jeans, which the parties stipulated in court were the property of defendant. They also received a second plastic bag containing a pair of jeans, some change, a "Stacker" bottle and a pair of white Timberland boots.

Shortly after defendant's arrest, at approximately 9:46 p.m., East Brunswick police officer Jeffrey Marino was in a patrol car when he noticed a tan Hyundai driving slowly in a residential area near Highland Street. The car was braking frequently, as if the driver was looking for someone. Marino conducted a motor vehicle stop and the driver, Willie Johnson, gave a conflicting story about why he was there. After smelling burnt marijuana inside the car, Marino searched the front seat area and found the ashtray contained a partially smoked "blunt," or a marijuana cigarette. Marino placed Johnson under arrest and performed a body search; he discovered a small bag of marijuana inside Johnson's sock. Marino then took Johnson to East Brunswick headquarters, where he was charged with marijuana possession.

Johnson admitted to driving defendant to the robberies, parking the car, waiting for his return, and driving defendant home. Johnson said defendant would tell him where to go and that he had "heat," meaning a gun. Johnson said that, on the night of their arrest, he drove defendant to East Brunswick because defendant said he needed money.

Johnson agreed to plead guilty to conspiracy and testify against defendant in return for a sentence recommendation of three years in state prison with an eighty-five percent parole disqualifier.

East Brunswick police detective Edward J. Conlon testified that, sometime around 9:26 p.m. the night of defendant's arrest, he received a dispatch to return to headquarters and interview two individuals in custody. When he got there, he attempted to speak with defendant, who did not wish to speak. The judge instructed the jury to "totally disregard" the statement.

Defendant testified. He described himself as five-feet-five-inches tall and predominately right-handed.

According to defendant, on October 2, 2003, a friend drove him to East Brunswick to purchase marijuana from Johnson. The friend drove "down Route 18" and parked at a gas station. Defendant exited the car and walked down the street looking for Johnson while talking to him on his cell phone. When they met in a parking lot, two police officers "jumped out" of an unmarked car with their guns drawn. Johnson ran, but he "froze." Defendant was wearing a black jacket, blue hat, white T-shirt, blue jeans, and boots. He denied ever having a black knit North Face mask or a small silver-colored semi-automatic gun.

Defendant stated that Johnson never drove him to any robberies in 2003 and denied involvement in any of the charged robberies. Defendant admitted only to purchasing four bags of marijuana, to hindering his own apprehension by running, and to giving a false name. Defendant further expressed the belief that Johnson committed the robberies and that it was easier for the police to blame defendant because he was a convicted felon.

Defendant denied ever owning a handgun or showing one to an ex-girlfriend named Kaihala Staten. He said he had moved out of his mother's basement in March 2003 and that a lot of different people had been down there. The two shell casings found by the police in the basement did not belong to him.

The State presented one rebuttal witness, Patrick Royce, a corrections officer, who testified that he observed defendant use his left hand to write, brush his teeth, eat, and move pieces on a chessboard. Royce made these observations on February 12 and 13, 2006, at the county jail.

After the start of deliberations, the court held an in camera proceeding, outside defendant's presence, advising counsel that three jurors had received anonymous telephone calls from someone asking if the three were on the jury and claiming to have information for them. The court separately questioned all of the jurors in the presence of counsel to determine if the jury could remain fair, impartial, and consider only the evidence. After the poll, counsel for both sides agreed that the jury could continue deliberations and render a verdict.

The jury reached an unanimous guilty verdict on all charges, with the exception of count twenty-five of the first indictment, where the jury found defendant was not guilty of second-degree aggravated assault with a deadly weapon but guilty of the lesser-included offense of third-degree aggravated assault with a deadly weapon. The judge sentenced defendant to an aggregate custodial sentence of forty-five years with a thirty-seven-and-one-quarter-year parole disqualifier.

On appeal, defendant contends that:

I. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE TRIAL COURT (Not Raised Below).

A. The Trial Court's Reasonable Doubt "Test" Violated the Supreme Court's Mandate in State v. Medina, and Prejudiced the Defendant's Right To A Fair Trial (Not Raised Below).

B. The Trial Court's Intervention Assisted the Prosecutor and Resulted In A Judicial Imprimatur Of The State's Case (Not Raised Below).

Defendant contends the court erred by giving the jury preliminary instructions on reasonable doubt that violated the Supreme Court's mandate in State v. Medina, 147 N.J. 43, 59-61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997). He further argues that the court abused its discretion by improperly questioning the State's witnesses to elicit repetitive or additional inculpatory testimony. We disagree.

The court instructed five separate groups of prospective jurors in accordance with the model criminal jury charge on reasonable doubt. After the jury was sworn, and before the parties delivered their opening statements, the court gave the same instruction and administered a "test" to demonstrate the concept of reasonable doubt in the context of a criminal case:

[THE COURT]: Now, just a little test on reasonable doubt. All right? So assuming the trial's [sic] all over, you've heard the summations, you got my charge, you've been deliberating for several hours . . . .

So just assume the jury is ready after discussion, deliberation, there's several hours to vote on one of the counts, you're one of the jurors, and the foreperson is asking for a vote, and in your gut your gut tells you the defendant is guilty of that count, however, you don't believe the prosecutor has proven her case beyond a reasonable doubt and you are not firmly convinced of the defendant's guilt. How do you vote?

[JURORS]: Not guilty.

[THE COURT]: How?

[JURORS]: Not guilty.

[THE COURT]: Everybody votes not guilty? Anybody vote guilty? Not guilty. Correct. Not guilty.

All right. However, after all those hours of deliberation you're ready to vote and you do believe that on that particular count--this is all hypothetical now, folks--okay?--because Mr. Tanner's presumed innocent of all the charges. You understand that, right? This is just a hypothetical to explain reasonable doubt. Hypothetically you're ready to vote on one of the counts and you do believe the prosecutor has proven her case beyond a reasonable doubt and you are firmly convinced of the defendant's guilt on that particular charge, but you still have doubt. How do you vote?

[JURORS]: Guilty.

. . .

[THE COURT]: Now, here the law is--the law is that if you believe the prosecutor's proven the crime beyond a reasonable doubt and you are firmly convinced of the defendant's guilt on that charge even though you have doubt you must vote guilty. If you have a reasonable doubt then you have to vote not guilty. So it has to be proof beyond a reasonable doubt. If you have a reasonable doubt and you're not firmly convinced you vote not guilty, but if you find that there's proof beyond a reasonable doubt even though you have doubt and you're firmly convinced of the guilt you must vote guilty.

The judge gave the same charge on reasonable doubt in the final jury instructions. Defendant did not object to the preliminary instructions, to the "test" or to the final charge on reasonable doubt.

To preserve a question for appellate review, Rule 1:7-2 provides that "a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor." This rule further provides that "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict[.]" R. 1:7-2. The failure to object to a jury instruction requires appellate review under the plain error standard. State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, __ U.S. __, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); R. 2:10-2. The test is whether the possibility of an unjust result from the error is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). The alleged error must be "viewed in the totality of the entire charge, not in isolation", State v. Chapland, 187 N.J. 275, 289 (2006), and "any finding of plain error depends on an evaluation of the overall strength of the State's case." Wakefield, supra, 190 N.J. at 473 (citation and internal quotation omitted). "Only those instructions that overall lessen the State's burden of proof violate due process." Ibid. (citation and internal quotation omitted).

Defendant does not argue that the court's various preliminary instructions on reasonable doubt misstated the law. Instead, he argues that his conviction should be reversed because the trial court's hypothetical was inconsistent with the Court's mandated use of the "reasonable doubt" definition adopted in Medina and prescribed in the model jury charge.

In Medina, supra, 147 N.J. at 60-61, the Supreme Court adopted the following definition:

The government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.

A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find him not guilty.

The Court admonished trial courts not to deviate from this definition, stating "[t]he failure to adhere to the definition, over an objection, runs the risk of reversible error." Id. at 61.

The model jury charge on reasonable doubt contains the language adopted by the Medina Court but adds the following opening sentence: "The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty." Model Jury Charge (Criminal), "Reasonable Doubt" (1997).

Here, the court adopted the Medina definition of reasonable doubt in its preliminary instructions and in its final jury charge. Defendant did not contemporaneously object to any of these instructions, nor did he raise a timely objection to the reasonable doubt "test." It may be inferred that defense counsel did not perceive any prejudice in the charge. State v. Wilbely, 63 N.J. 420, 422 (1973) ("The failure to object points up the fact that experienced counsel did not consider that the use of the words detracted from the clear meaning which the charge as a whole conveyed."); Macon, supra, 57 N.J. at 333 (inferring an error was "of no moment" where a defendant failed to object at trial).

A comparison of the court's hypothetical and the Medina reasonable-doubt charge reveals that the court's "test" added the phrases "but you still have doubt" and "even though you have doubt." This language is consistent with the Medina charge that "[i]n criminal cases the law does not require proof that overcomes every possible doubt." Medina, supra, 147 N.J. at 61.

We find the differences between the hypothetical and the preliminary and final jury instructions were minor, and the additional language did not amount to a substantive distinction. Moreover, when the reasonable doubt test is considered against the entire charge, defendant cannot carry his burden of demonstrating that the court's "test" in any way lessened the State's burden of proof. We find no due process violation and no plain error.

Defendant also contends the trial court abused its discretion by asking improper questions of State witnesses, including: (1) questions eliciting testimony from Yash that defendant hit him on the head with a gun; (2) questions that asked a witness to make an in-court identification of defendant; and (3) questions directed to a juror during a break in deliberations to address anonymous telephone calls. Defendant argues that these questions were designed to elicit inculpatory testimony, and that the cumulative effect of the court's intervention warrants the reversal of his convictions. The trial judge did not question defendant when he testified on his own behalf.

The judge included the following instruction in his general jury charge:

Now, the fact that I may have asked questions of a witness in the case must not influence you in any way in your deliberations. The fact that I asked such questions does not indicate that I hold any opinion, one way or another, as to the testimony given by that witness. Any remarks made by me to the attorneys, or by the attorneys to me, or between the attorneys, are not evidence, and should not affect or play any part in your deliberations.

Because defendant did not timely object to the court's questions of State witnesses, the plain-error standard applies. R. 2:10-2.

N.J.R.E. 614 expressly authorizes a trial judge to interrogate any witness. "The intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial . . . ." State v. Medina, 349 N.J. Super. 108, 130-31 (App Div.), certif. denied, 174 N.J. 193 (2002). A judge may intervene to expedite a case, clarify testimony, elicit material facts, and protect the proceedings. State v. Taffaro, 195 N.J. 442, 450 (2008) (citing State v. Guido, 40 N.J. 191, 207 (1963)). The judge, however, must exercise his or her discretionary power to intervene with great care to avoid influencing the jury by signaling doubt about a witness's credibility, or giving the impression of favoring one side. State v. Martinez, 387 N.J. Super. 129, 138 (App. Div.), certif. denied, 188 N.J. 579 (2006). "To do otherwise might place the court's impartiality in question and affect the trial's outcome." Taffaro, supra, 195 N.J. at 445. In determining whether a trial judge's intervention deprived the defendant of a fair trial, an appellate court must consider the entire record. Martinez, supra, 387 N.J. Super. at 138.

Our careful review of the record finds nothing in the judge's questions to State witnesses that might indicate the judge was partial to either side. We find the questions merely served to clarify ambiguous testimony: they did not elicit any new, incriminating evidence. Nor was defendant prejudiced by the judge's in-camera questions to the three jurors who had been anonymously contacted regarding their ability to remain impartial.

We additionally note that any potential harm was cured by the firm and unambiguous jury charge.

Defendant also contends:

IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 45 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.

A. Imposition Of A 20 Year Base Term On The Defendant's Conviction For Attempted Murder On Count Twenty-Three, and 18 Year Base Terms On the Defendant's Convictions For Robbery On Counts Thirteen, Fifteen, Twenty-Six, Twenty-Seven, and Thirty, Were Manifestly Excessive and An Abuse of Judicial Sentencing Discretion.

B. The Court Abused Its Discretion In Imposing Consecutive Sentences On the Defendant's Convictions On Counts Thirteen and Twenty-Three.

C. Imposition Of A 7 Year Base Term On the Defendant's Convictions For Third Degree Aggravated Assault On Count Twenty-five Was Illegal.

We agree only with part C of the argument. The remaining arguments we find to be without sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(2).

The sentence imposed on a third-degree offense could not exceed five years. N.J.S.A. 2C:43-6a(3). Accordingly, pursuant to Rule 2:10-3, we reduce the term imposed to three years. In all other respects, the sentence on this count remains the same.

Defendant also contends:

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR.

A. The Prosecutor Had Reason to Know That Doctor Hammond Was Unable to Give Competent Testimony and That Discovery Was Incomplete.

B. The Prosecutor Elicited Improper [impecuniousness] Testimony.

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF A VIOLATION OF THE DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION (Not Raised Below).

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE AND INCOMPLETE (Not Raised Below).

A. The Trial Court Committed Plain Error in Not Instructing the Jury Sua Sponte On the State's Obligation to Maintain the Defendant's Jacket as Evidence (Not Raised Below).

B. The Trial Court Committed Plain Error By Failing to Specifically Instruct the Jury That Co-Defendant Johnson's Guilty Plea Is Not Substantive Evidence of the Defendant's Guilt (Not Raised Below).

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENSE COUNSEL'S MOTION FOR MISTRIAL IN ORDER TO ALLOW DEFENDANT TO RETAIN COUNSEL OF HIS CHOICE.

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS RIGHT TO FULL APPELLATE REVIEW WAS VIOLATED (Not Raised Below).

Based on our careful review of the record, we conclude that these arguments are without sufficient merit to warrant extended discussion in a written opinion. Rule 2:11-3(e)(2).

Defendant submitted pro se a supplemental brief contending:

I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN VIOLATION OF APPELLANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AS RAISED IN THE FOLLOWING SUB-POINTS.

A. The Trial Court Failure To Give The Clawans Charges Was Prejudicial and Therefore Constitutes Full Reversal Of Appellant's Conviction.

B. The Trial Court Abused Its Discretion By Not Granting A Mistrial After A Jury Tampering Incident And By Allowing A Hearing Concerning The Incident Without The Presence Of The Defendant.

C. The Trial Court Committed Prejudicial Error By Joinder Of Multiple Offenses Which Were Based Upon Separate And Unrelated Events As To Which He Was Charged.

D. Defendants Fifth, Sixth and Fourteenth Amendments Were Violated When The Judge Prevented The Defendant From Giving Full Testimony.

E. The Court's Failure To Give Limiting Instruction Concerning Co-Defendant William Johnson Guilty Plea Deprived Defendant Of The Right To Due Process Of Law and A Fair Trial. (Supplemented To Appellate Counsel's Point IV(b)).

II. THE PROSECUTOR COMMITTED MISCONDUCT RESULTING IN VIOLATION OF APPELLANT'S DUE PROCESS UNDER BOTH THE FIFTH AND FOURTEENTH AMENDMENT TO THE NEW JERSEY AND UNITED STATES CONSTITUTION AND IN VIOLATION OF APPELLANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY RAISED UNDER THE FOLLOWING SUB-POINTS.

A. The Prosecutor Committed Misconduct During Summation By Misstating The Identification Testimony Of Witness Abdul Imran.

B. The Prosecutor Committed Misconduct As A Result Of Cross Examination As To The Defendant's Failure To Inform The Police Or Anyone Else Of His Exculpatory Defense Prior To Trial.

C. The Prosecutor Committed Misconduct By Eliciting Prejudicial and Improper "Other Crimes Evidence" From States Witness Kaihala Staten Without Conducting A 404(B) Hearing.

III. THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.

We conclude that these pro se arguments are either repetitive or without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In summary, we modify the sentence on count twenty-five, third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2). In all other respects, the convictions and
sentences are affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

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

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A-3509-06T4

September 8, 2009