STATE OF NEW JERSEY v. MICHAEL LAMAR LIVINGSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2058-09T4

A-2674-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS DELEVRY,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LAMAR LIVINGSTON,

Defendant-Appellant.

_________________________________

November 10, 2011

 

Submitted October 26, 2011 - Decided

 

Before Judges Harris and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-01-0223.

 

Joseph E. Krakora, Public Defender, attorney for appellant Carlos Delevry (Gilbert G. Miller, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant Marcus Lamar Livingston (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

 

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent in both appeals (Mary R. Juliano, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

These back-to-back appeals, which we consolidate for purposes of this opinion, arise from defendants' convictions (at a joint trial) for first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), and third-degree unlawful possession of a weapon (a handgun without a permit), N.J.S.A. 2C:39-5(b) (count three). We affirm.

I.

A.

The following facts are derived from the trial record.

Manuel Navarrete and his wife, Claudia Aguilar, operated The Little Diamond Jewelry Store in Red Bank. The store served a predominantly Hispanic clientele and Navarrete and Aguilar's English skills were limited.

On July 18, 2007, at 9:00 a.m., Navarrete and Aguilar arrived at The Little Diamond Jewelry Store with their infant son. At approximately 4:00 p.m., two young men entered the store. Aguilar emerged from the back office to assist them, but upon realizing that the men spoke only English, she called for Navarrete, who had a greater mastery of the language.

At trial, Navarrete and Aguilar described both men as young black males: one man was tall and thin and wore a black rag on his head; the other was shorter and wore a hat. Navarrete and Aguilar distinguished between the two by referring to their comparative heights. Their in-court identifications reflected that the "taller," "thinner" man was defendant Michael Lamar Livingston and the "shorter" man was defendant Carlos Delevry.

The afternoon of the incident, as the men perused a jewelry catalog, Livingston told Navarrete that he wanted to purchase a necklace with a name plaque that read "Erica" and wrote the name on a post-it. Livingston then asked Navarrete to make a photocopy of a particular catalog page to show his girlfriend the necklace. Navarrete produced the photocopy and gave it to the men.

The customers then departed, taking the photocopy with them but leaving the catalog and post-it on the counter of the display case. Five minutes later, they re-entered the store. Livingston again asked Navarrete for the price of the name plaque while Delevry stood off to the side. As Navarrete was speaking to Livingston about the jewelry, Delevry approached from behind and removed a .38 caliber handgun from Livingston's waistband and pointed it at Navarrete. Delevry announced a robbery and opened the firearm's cylinder to display five bullets. Meanwhile, Livingston ran towards the back of the store and came out with Navarrete's wife and son from the office. He seated the mother and child against a wall and directed Navarrete to sit down next to them while Delevry pointed the firearm at the family. Livingston then went back into the office and retrieved cash while Navarrete, Aguilar, and their son remained seated but able to observe Livingston's movements. When Livingston returned he began demanding more money while Delevry continued to hold the victims at gunpoint. Moments later, a patron entered the store and defendants fled, leaving the photocopy behind.

Red Bank Police Officer Paul Perez responded to the scene. Officer Perez's report, which was written several hours after interviewing Navarrete and Aguilar, stated that one suspect was a "black male, approximately 5'5", thin build, early 20's, wearing [a] long black-sleeved shirt, black pants, and a black do-rag and black gloves." The other suspect was described as "[a] black male, approximately 6 foot tall, thin build, early 20's, wearing . . . a black long-sleeve shirt, white undershirt, blue jeans, a black fishing-type hat, and black gloves." The taller individual (Livingston) was said to be in possession of the handgun, and the shorter man (Delevry) was reported to have entered the back office. Officer Perez's report contradicted Navarrete and Aguilar's trial testimony about the description of the individuals.

A second police officer, Lieutenant Elliot Ramos,1 also interviewed the victims on the day of the robbery. Lieutenant Ramos testified that the descriptions he received from Navarrete and Aguilar indicated that the shorter man (Delevry) was wearing a fishing cap and wielding the gun. Navarrete also told Lieutenant Ramos that he recognized the shorter individual as someone who had visited the store several days earlier asking about "an ID." At trial, Navarrete's and Aguilar's testimony were consistent with the descriptions given to Lieutenant Ramos.

The police continued an investigation and proceeded to search the store for fingerprints using a kit containing powders, brushes, lift cards, lifting tape, and gloves. Images of fingerprints lifted from the countertop of the display case were delivered to the New Jersey State Police Automated Fingerprint Identification System (AFIS) Unit. An analysis of those latent fingerprints produced a positive match with an inked impression of Livingston's left middle finger and left index finger. The catalog, photocopy, and post-it were also delivered to the AFIS Unit where they were processed and analyzed. A latent fingerprint image detected on one side of the photocopy revealed a positive match with an inked impression of Delevry's left middle finger.

Approximately one month after the robbery the police prepared a photo array for the victims' viewing, which included Livingston's image. On August 22, 2007, Sergeant Michael Frazee and Officer Perez visited Navarrete and Aguilar at The Little Diamond Jewelry Store. Each victim was separately shown a differently-arranged photo array book containing six photographs. While neither Navarrete nor Aguilar were able to make a positive identification at that time, Navarrete did state that photograph number four in his photo array book resembled the taller robber.2 Similarly, Aguilar stated that photograph number three in her photo array book looked like the taller robber, but that she could not be certain.3

One week later, on August 30, 2007, Police Officer Juan Sardo presented Navarrete with a second photo array book from which Navarrete identified Delevry as "the one that had the gun." Lieutenant Ramos testified that a photo array book was not presented to Aguilar on this date because she had mistakenly been present when Navarrete reviewed the photo array book, which indicated to Lieutenant Ramos that any identification by Aguilar done at that time "would have been a tainted [identification]."

After defendants were arrested, charged, and indicted, a six-day jury trial ensued. Navarrete, Aguilar, and several law enforcement officers involved in the case testified for the State. Delevry testified in his own defense and presented Janice Sims as an alibi witness. Livingston did not testify or present any witnesses.

Sims was in a dating relationship with Delevry in July 2007. She testified that in June and July 2007, she was employed by the United States Postal Service at the Broad Street post office in Red Bank. Because she and Delevry were living in Shrewsbury Arms, approximately five to six miles away from Red Bank, Delevry would regularly drop her off at work in the morning and pick her up at the end of her shift in the afternoon. She would typically call him prior to the end of her workday to let him know when she was free to go home.

Sims testified that the couple went shopping for an engagement ring on July 15, 2007. Three days later, on July 18, 2007 (the day of the robbery), she spoke to Delevry for approximately two minutes around 3:50 p.m. Sims clocked out of work at 4:38 p.m. that day, but could not "exactly recall" if Delevry picked her up. The Red Bank Post Office is a three to four minute drive from The Little Diamond Jewelry Store.

Delevry confirmed that he was living in Shrewsbury Arms during the summer of 2007 and that he and Sims went engagement ring shopping at the Monmouth Mall on July 15. Delevry also testified that he visited The Little Diamond Jewelry Store by himself on July 16 in search of a better price for a ring.4 He claimed that he had only begun to discuss with Navarrete what he was looking for when he was interrupted by a call from Sims informing him that she was ready to be picked up. Delevry cut short the discussion and left the store, claiming never to return.

B.

Sergeant Albert DeAngelis of the Monmouth County Prosecutor's Office testified as an expert in fingerprint analysis. Prior to trial, an N.J.R.E. 104 hearing was conducted allowing defense counsel to inquire about Sergeant DeAngelis's methodology and analysis as well as to challenge the State's non-production of certain documents during discovery. At the hearing, Sergeant DeAngelis testified at length about the AFIS fingerprint comparison results as well as the police fingerprint investigation and evidence preservation methods. The court held that any discovery violations alleged by defendants were cured by the hearing and that it would be for the jury to assess the believability of any opinion testimony relating to the fingerprints. At trial, no one from the AFIS Unit testified.

C.

At the close of the third day of trial, following the completion of the direct examination of Aguilar in which she made in-court identifications of both defendants, Livingston's counsel advised the trial court outside the presence of the jury of the following:

Judge, we have a problem. Apparently, for whatever reason, one of the sequestered witnesses, the last witness who testified, was brought into the courtroom before the defendants arrived. She was then allowed to observe the defendants manacled and being led to their seats.

 

Livingston's defense counsel announced his intention to cross-examine Aguilar about her observations to demonstrate the suggestiveness and lack of reliability of her in-court identification of his client. The court responded, "Okay. If you want to bring it out before the jury, I can not stop you from doing that."

When the trial resumed after the ensuing weekend, the issue was addressed again. The attorney for Delevry moved for a mistrial after the trial court indicated that if it permitted cross-examination of Aguilar about her observations, the jury would become aware that defendants had been held in custody. As such, the court suggested that counsel consider not revealing to the jury that defendants were in handcuffs and invited counsel to draft a limiting instruction to be read to the jury either before or after cross-examination.

The court denied the mistrial motion, but conducted an N.J.R.E. 104 hearing to determine what effect Aguilar's observations might have had on her in-court identifications. At the hearing, Aguilar testified that although she could not recall whether or not defendants "had anything on their hands," she immediately recognized "those two black gentlemen . . . that came into the courtroom on Thursday when the two sheriff's officers were with them" as "the people who had come into our shop."

Following the hearing, both defense attorneys elected to fully cross-examine Aguilar about her in-court observations. Prior to doing so, however, the court issued the following instruction to the jury:

The record will reflect the jury is in the jury room. Counsel is at counsel table, as are the defendants. I apologize for the delay in getting you up here today. An issue arose late Thursday which we had to address this morning. We've been working since quarter of 9 on that issue. That issue has now resulted in my explaining the following to you and instructing you on a specific jury charge in anticipation of continuing with the trial.

 

What occurred is last Thursday, when we broke in the afternoon break, where you went into the jury room, in an attempt to try to get us moving and get everybody in place as quickly as I could, I instructed [the prosecutor] to get Ms. Aguilar, who was the last witness you heard Thursday, to bring her into the courtroom. After she came into the courtroom and was seated in the front seat, in the pew, the defendants were brought into the courtroom by sheriff's officers in handcuffs, and they were seated at counsel table.

 

You also heard during the direct examination of Ms. Aguilar that she identified both defendants as her assailants when she testified from the witness stand. She made an in-court identification. The issue arose as to whether or not that identification that was made in court was suggested to her, not verbally, but by the observation she made of the defendants coming into the courtroom in handcuffs.

 

Now, normally you would not ever be aware of whether someone is in jail or not in jail. We try to avoid you knowing that, because it should not enter into your decision at all in forming an opinion as to whether or not a defendant is guilty or not guilty of a charge. I'm going to read you this specific charge concerning that, and I'm ordering you to follow this charge. Then we will continue with cross-examination.

 

You will hear testimony that the victim, Claudia Aguilar, was seated in the courtroom when the defendants entered the courtroom escorted by sheriff's officers while in handcuffs. It is the procedure of the courts to require defendants standing trial to post bail in order to assure their presence in court on the date of trial. If a defendant chooses not to post bail, they are transported by the Sheriff's Office to the courtroom in order to assure their appearance. It is regular, common, and required procedure for the sheriff's officer to place the defendants in handcuffs while they're being escorted to the courtroom.

 

Therefore, you are not to make any negative inference or give any weight to the fact that the defendants may have been escorted in the courtroom wearing handcuffs as they entered the courtroom. Normally such evidence is not permitted before you. Our rules specifically exclude evidence that the defendants are in custody, and you are not to consider or give any weight to this information when you are determining the defendants' guilt. Our rules of evidence would not allow such information to be introduced before you. However, if said information could be found to have affected the in-court identification of a witness or a victim in this case, specifically Claudia Aguilar, before you give any weight to this evidence, you must be satisfied that because she was present in the courtroom when the defendants were escorted into their seats, this information affected Ms. Aguilar's ability to identify who the defendants were.

 

You, and you alone, are to determine how much weight, if any, you want to give to the fact that Claudia Aguilar was present in the courtroom and if that fact impacted her ability to identify the defendants. Whether or not this evidence does, in fact, affect the reliability of Claudia Aguilar's in-court identification is for you to decide. You may decide the evidence did not affect the identification and is not helpful to you at all. In that case, you must disregard the evidence in its entirety.

 

Again, you may not use this evidence, the fact that the defendants were in handcuffs, to decide that the defendants are, in fact, guilty; that is, you may not decide just because the defendants were in handcuffs, they must be guilty of these offenses that they are facing. I have admitted this evidence only to help you decide how reliable you are going to find Claudia Aguilar's in-court identification. You may not consider it for any other purpose and may not find the defendants guilty simply because you now know that they may presently be in custody. All right.

 

That is my specific instruction to you.

 

D.

Both defendants were convicted of all charges. The trial court sentenced Delevry to twelve years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one and a concurrent five-year term of imprisonment on count three. Count two was merged with count one. A few weeks later, the court denied Livingston's motion for acquittal, or in the alternative a new trial, and sentenced Livingston to fifteen years imprisonment subject to the NERA on merged counts one and two and a concurrent five-year term on count three. These appeals followed.

II.

A.

On appeal, Delevry raises the following arguments:

POINT I: AGUILAR'S OBSERVATION BEFORE THE JURY ENTERED THE COURTROOM OF SHERIFF'S OFFICERS ESCORTING DEFENDANT AND LIVINGSTON INTO THE COURTROOM IN RESTRAINTS FOLLOWED SHORTLY ONCE HER TESTIMONY COMMENCED BY HER IDENTIFICATION OF THEM AS HER ASSAILANTS, COUPLED WITH LIVINGSTON'S COUNSEL'S DECLARED INTENTION TO CROSS-EXAMINE AGUILAR ON THE IMPACT OF HER OBSERVATION ON HER IDENTIFICATION, REQUIRED THE COURT TO GRANT DEFENDANT'S APPLICATION FOR A MISTRIAL.

 

POINT II: TO THE EXTENT THAT A MISTRIAL WAS NOT WARRANTED, THE COURT SHOULD HAVE PRECLUDED THE JURY FROM CONSIDERING AGUILAR'S IN-COURT IDENTIFICATION OF THE DEFENDANTS.

 

POINT III: THE TRIAL COURT PERMITTED INADMISSIBLE HEARSAY TESTIMONY FROM THE STATE'S FINGERPRINT EXPERT THAT A FINGERPRINT WHICH HE COMPARED TO AN ALLEGEDLY MATCHING LATENT FINGERPRINT DETECTED ON THE PHOTOCOPY OF A BROCHURE PAGE HANDED TO THE ROBBERS BY A VICTIM WAS IN FACT A KNOWN FINGERPRINT OF DEFENDANT; AND THAT ONE OF THE TWO JUXTAPOSED FINGERPRINTS FEATURED ON A BLOWN-UP DEPICTION OF THIS FINGERPRINT AND THE ALLEGEDLY MATCHING FINGERPRINT DISCOVERED ON THE BROCHURE PAGE COPY WAS AN ENLARGEMENT OF THE KNOWN FINGERPRINT OF DEFENDANT'S LEFT MIDDLE FINGER.

 

POINT IV: THE PROSECUTOR MADE REMARKS ON SUMMATION WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

We consider none of these arguments persuasive.

 

Delevry's first two points revolve around Aguilar's in-court identification of defendants. He contends that the trial court erred in denying his application for a mistrial because Aguilar's in-court identification was irreparably tainted by her observation of defendants being brought into the courtroom in restraints and having the restraints removed in her presence. He further urges that the court's limiting instruction "enhanced the prejudice to [Delevry] by informing the jurors that [Delevry] was in custody and transported in handcuffs because he had chosen not to post bail, which the court characterized as a device used to secure a defendant's appearance at trial."

At trial, Delevry's mistrial motion was based upon the singular argument concerning Aguilar's observations of defendants in manacles and in the custody of sheriff's officers. There was no objection, much less a motion for a mistrial, directed at the court's subsequent limiting instruction to the jury. In fact, not only did Delevry not object to the instruction, he (along with Livingston) requested that it be provided to the jury before the cross-examination was to begin.

Ordinarily, "a defendant waives the right to contest an instruction on appeal if he does not object to the instruction[]" at trial. State v. Adams, 194 N.J. 186, 206-07 (2008); see also N.J. Div. Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) ("[I]ssues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest."); R. 1:7-2. Nonetheless, a court may reverse where the unchallenged error was "clearly capable of producing an unjust result." R. 2:10-2.

In this case, recognizing that misidentification can compromise an otherwise fair trial, the trial court ordered an N.J.R.E. 104 hearing to determine whether, and to what extent, Aguilar's observations of defendants in custody impacted her in-court identification of Delevry. See State v. Delgado, 188 N.J. 48, 60 (2006) ("The importance of recording the details of what occurred at an out-of-court identification flows from our understanding of the frailty of human memory and the inherent danger of misidentification."). At the hearing, Aguilar testified that she observed defendants entering the courtroom but did not see "whether or not they had anything on their hands." Although she recognized both defendants' faces from the date of the robbery, she stated that when Livingston looked at her, she peered away because of nervousness. Nevertheless, she said, "When I saw them, yes, I recognized them, and it all came back to me like I was reliving it."

After a weighing of relevant factors, the trial court found that Aguilar's identification of both defendants "was reliably independent of any prejudicial pre-testimonial procedure and that the verdict returned by the jury was not clearly and convincingly a result of prejudice or passion." The court took into account Aguilar's ability "to observe the defendants at the scene of the crime," the accuracy of her descriptions of defendants prior to trial, and the fact that Navarrete identified both defendants without having viewed them in shackles prior to his testimony.

We concur that regardless of any shortcomings in courtroom management, Aguilar's identification of defendants in the presence of the jury was sufficiently reliable to have been properly received and considered by the jury. Aguilar had ample opportunity to view defendants at the time of the crime, in the confined space of her store. Her fleeting view of defendants right before she testified pales in comparison to her opportunity to observe both defendants seated at counsel table during the length and breadth of her direct examination. Our review of the record leads us to agree with the trial court and we therefore conclude that there was "sufficient indicia of reliability to outweigh the corrupting effect of the suggestive identification." State v. James, 144 N.J. 538, 546 (1996).5

"A mistrial is an extraordinary remedy." State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). It should be granted "only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). See State v. Allah, 170 N.J. 269, 280-81 (2002). Whether inadmissible evidence is capable of being cured by an instruction to the jury, or whether it requires a mistrial, is within the discretion of the trial court. State v. Winter, 96 N.J. 640, 646-47 (1984). That court "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Id. at 647. A denial of a mistrial motion is reviewable only for an abuse of discretion that has resulted in a manifest injustice. Ibid. This same degree of deference applies to the review of whether the given limiting instruction was adequate. Ibid. In determining the adequacy of the instruction, we focus on "the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Ibid. When the erroneous admission of evidence does not violate a defendant's constitutional rights, it will be disregarded "unless it is clearly capable of producing an unjust result." Id. at 647-48; see also State v. Zapata, 297 N.J. Super. 160, 175-76 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).

In reviewing a decision to deny or order a new trial, we recognize that "the trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Adams, supra, 194 N.J. at 203 (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Furthermore, we "give deference to the judge's determination of the extent to which the prejudice, if any, may have contributed to an unjust result." Hill v. N.J. Dept. of Corrs. Comm'r Fauver, 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); see also State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010). Where there is "sufficient credible evidence in the record to support the findings," we will not disturb them. Ibid.

Our state and federal constitutions guarantee every defendant "the right to a fair trial before an impartial jury." State v. Artwell, 177 N.J. 526, 533 (2003). "The fair trial right entitles a criminal defendant 'to have his [or her] 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.'" Id. at 533-34 (quoting State v. Zhu, 165 N.J. 544, 553 (2000)) (emphasis added). A defendant's right to a fair trial may be violated when an in-court identification is improperly admitted. U.S. v. Wade, 388 U.S. 218, 235, 87 S. Ct. 1926, 1936, 18 L. Ed. 2d 1149, 1162 (1967).

With these principles in mind, we review whether Aguilar's in-court identification was based on her independent recollection of defendant from the date of the robbery or her impromptu observation of him in shackles on the day of her testimony. We recently held that "the mere fact that a suspect is presented in or around a police car in handcuffs does not in itself make a showup impermissibly suggestive." Bayer v. Twp. of Union, 414 N.J. Super. 238, 268 (App. Div. 2010); see also State v. Herrera, 187 N.J. 493, 505 (2006) (a "witnesses' identification of the defendant seated and handcuffed in the back of the police car was suggestive but that 'such suggestive circumstances did not render the identification procedure per se improper and unconstitutional.'") (quoting State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003)).

Aguilar's observation of defendants being escorted into the courtroom by sheriff's officers before the start of proceedings was not suggestive as to outweigh the other indicia of reliability surrounding her in-court identification of Delevry. Aguilar testified that she did not notice whether the defendants were in shackles when they entered, in part because she timidly "looked down" when she made eye contact with Livingston. Moreover, the fact that defendants were seated at counsel table does not amount to a violation of due process, United States v. Sebetich, 776 F.2d 412, 420 (3d Cir. 1985), cert. denied, 484 U.S. 1017, 108 S. Ct. 725, 98 L. Ed. 2d 673 (1988), as courtroom identifications are necessarily, but not always impermissibly, suggestive. State v. Clausell, 121 N.J. 298, 365 (1990).

Aguilar first observed defendants the day of the crime from approximately three feet away. She proceeded to observe her husband speak to defendants from the store office, approximately twenty feet away from the display case. She testified that there was nothing obstructing her view during this time and that defendants were inside the store for approximately five minutes before their initial departure. When the two men returned and one pointed a gun at Aguilar and her family, she again had an unhindered view of both defendants from approximately six feet away.

Aguilar provided an accurate description of Delevry at trial and had ample opportunity to view both defendants at the time of the crime. Moreover, Navarrete positively identified Delevry in a photo array prior to trial as well as at trial, without having seen Delevry in shackles before testifying. Latent fingerprints found on the photocopy handled by Delevry also corroborated Aguilar's identification. See Herrera, supra, 187 N.J. at 505-06. Accordingly, under the totality of the circumstances, Aguilar's identification was sufficiently reliable and Delevry's motion for a mistrial was properly denied.

The fact that Aguilar positively identified Delevry for the first time at trial does not render the identification constitutionally invalid. Clausell, supra, 121 N.J. at 327-28. Where pre-trial procedures are impermissibly suggestive, a later in-court identification will still be permitted where the in-court identification is based on an independent source, including the witness's observations at the time of the crime. State v. Ruffin, 371 N.J. Super. 371, 394 (App. Div. 2004); State v. Davis, 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986). The believability of eye-witness identifications presented at trial ultimately rests with the jury. State v. King, 372 N.J. Super. 227, 239 n.3 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005); Delgado, supra, 188 N.J. at 56.

Here, the jury was aware that Aguilar was not asked to identify Delevry using a photo array book, and it also heard defense counsel cross-examine her about what she observed when Delevry and Livingston were brought into the courtroom, and whether those observations influenced her identification of Delevry at trial or her level of certainty. The jury was also aware of the fact that Aguilar's in-court identification was made more than a year after the crime, yet it chose to convict. Therefore, notwithstanding the twenty-month passage of time between the date of the crime and the trial, and the inherent suggestiveness of the courtroom setting, Aguilar's in-court identification was properly admitted.

Delevry also challenges the limiting instruction on the ground that it multiplied the prejudice by "informing the jurors that defendant was in custody and transported in handcuffs because he had chosen not to post bail, which the court characterized as a device used to secure a defendant's appearance at trial." We do not find this proposition convincing.

The trial court specifically explained that cross-examining Aguilar about her observations of defendants entering the courtroom in handcuffs would necessarily alert the jury that defendants were in custody, a fact that could potentially undermine Delevry's credibility. See State v. Grant, 361 N.J. Super. 349, 358 (App. Div. 2003) (a defendant's appearance in restraints "has the potential to detract from the witness's credibility" and "undermine the presumption of innocence"). Despite this advice, defense counsel proceeded to energetically question Aguilar about what she saw before the jury entered the courtroom. Ultimately, the jury did not learn that Delevry was in custody due to the limiting instruction, but rather because defense counsel chose to cross-examine Aguilar about what she saw. We do not fault the defense tactic but note that it was the voluntary product of a deliberate choice made during trial.

Assuming, however, that the instruction did direct extra attention to the fact that defendants were in custody because they had decided not to post bail, this information did not have a clear capacity to produce an unjust result. R. 2:10-2. Delevry takes particular issue with the following portion of the limiting instruction:

It is the procedure of the courts to require defendants standing trial to post bail in order to assure their presence in court on the date of trial. If a defendant chooses not to post bail, they are transported by the Sheriff's Office to the courtroom in order to assure their appearance. It is a regular, common, and required procedure for the sheriff's officer to place the defendant's in handcuffs while they're being escorted into the courtroom.

 

He urges that this instruction effectively "deemed defendant to pose an enhanced risk of non-appearance because he chose not to post-bail" and suggested that "defendant was especially dangerous in that he would rather be in jail than post an amount of money which only served to ensure his appearance at trial."

These contentions are unfounded. First, the trial court made clear that escorting defendants into court in handcuffs was a "regular, common, and required procedure," that had nothing to do with a particular defendant. The purpose of the instruction was to remind jurors that any evidence of a defendant being in handcuffs was not to be considered in its finding of guilt or innocence. The court stated, "you are not to make any negative inference or give any weight to the fact that the defendants may have been escorted in the courtroom wearing handcuffs . . . and you are not to consider or give any weight to this information when you are determining the defendant's guilt." Moreover, the court's explanation as to why defendants were in custody served to dispel any belief in the minds of the jurors that defendants were held because they were dangerous or had criminal or violent propensities.

Second, the limiting instruction was issued at defense counsel's urging and he never objected to the instruction as given. Accordingly, we find no error, much less plain error, in the trial court's thorough explanation of (1) the unusual circumstances and (2) the application of law to that unique situation.

Next, Delevry asserts that the trial court permitted inadmissible hearsay testimony from the State's expert on fingerprint analysis since the expert lacked personal knowledge to testify that the "known inked impression" of Delevry's left middle finger, supplied by AFIS, was actually produced by defendant's finger. Since the AFIS report was a writing, Delevry contends that it would be admissible only under the business or public record exception to the hearsay rule. Because no foundation was laid for either of these exceptions, it is claimed that hearsay was improperly admitted and the conviction must be reversed.

While Delevry asserts that his objection was partially raised in the Law Division, the State maintains that Delevry objected to the expert testimony on other grounds, namely that the expert's report was an inadmissible net opinion and that certain documents were not provided in discovery. As such, the State insists that the invited error doctrine applies because defendant raised no hearsay objection at trial. We agree that the doctrine of invited error applies.

"'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 113-14 (App. Div. 2010) (quoting M.C. III, supra, 201 N.J. at 340 (2010)). However, "[s]ome measure of reliance by the court is necessary for the invited-error doctrine to come into play," State v. Jenkins, 178 N.J. 347, 359 (2004), and the court will "not automatically apply the doctrine if it were to 'cause a fundamental miscarriage of justice.'" M.C. III, supra, 201 N.J. at 342 (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 508 (1996)).

Here, the failure to object to the admission of the AFIS materials into evidence constitutes invited error. In M.C. III, our Supreme Court applied the invited error rule to a claimed hearsay violation committed at trial, but not raised until appeal. In that case, certain documentary evidence admitted to support a finding of abuse and neglect was challenged by the defendant on grounds that the caseworker who testified lacked first-hand knowledge of the injuries sustained. Id. at 338. The Court held that the doctrine of invited error barred defendant from challenging the evidence on appeal, because had defendant made an objection at trial, "the Division could have taken steps to satisfy any evidentiary requirements needed for the admission of the documents or presented a witness or witnesses in place of the documents." Id. at 341. The Court also noted that "where defense counsel may have made a strategic decision to try the case based on the documents, instead of possibly facing a witness's direct testimony, it would be unfair to the Division to reverse on this issue." Id. at 342.

Similarly, there was no objection to the admission of the AFIS data at trial and, in fact, defense counsel vigorously cross-examined Sergeant DeAngelis about his methodology and findings at both an N.J.R.E. 104 hearing and before the jury. It is plausible that defense counsel chose not to insist upon direct testimony about the AFIS materials before the jury to protect his client against the stigma of criminality that could attach to individuals whose fingerprint data are already in the AFIS. Had Delevry timely objected to the AFIS documents, the trial court could have determined if DeAngelis's testimony was proper under N.J.R.E. 703 or, if a hearsay objection was sustained, the State could have either proffered a witness to provide a foundation for the document as a business record, N.J.R.E. 803(c)(6), or collected its own fingerprints of Delevry to cure the hearsay problem.

We also observe that a party's failure to timely object at trial may make it "'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)). Furthermore, Delevry's fingerprint was not the only link between him and the robbery. The conviction is supported by both Navarrete and Aguilar's in-court testimony and identifications. See State v. Nero, 195 N.J. 397, 407 (2008) ("'[A]ny finding of plain error depends on an evaluation of the overall strength of the State's case.'") (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Accordingly, application of the invited error rule in the instant case would not "'cause a fundamental miscarriage of justice.'" M.C. III, supra, 201 N.J. at 342 (quoting Brett, supra, 144 N.J. at 508).

Delevry also claims that certain prosecutorial remarks during summation, including the suggestion that people in the jewelry business focus on customer's hands and faces, denied him a fair trial. We are unable to agree.

It is well-settled that "[p]rosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). However, while prosecutors are expected to be zealous in enforcing the law, "'[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.'" State v. Blakney, 189 N.J. 88, 96 (2006) (quoting State v. Ramseur, 106 N.J. 123, 320 (1987)). Therefore, while "'[a] prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence,'" it is for '"the jury to decide whether to draw the inferences the prosecutor urged.'" State v. Wakefield, 190 N.J. 397, 457 (2007) (quoting State v. R.B., 183 N.J. 308, 330 (2005)), cert. denied, 552 U.S. 1146; 128 S. Ct. 1074; 169 L. Ed. 2d 817 (2008). Accordingly, a conviction will not be overturned for prosecutorial misconduct "'unless the conduct was so egregious as to deprive defendant of a fair trial.'" Wakefield, supra, 190 N.J. at 437 (quoting State v. Papasavvas (I), 163 N.J. 565, 625 (2000)).

The challenged remarks during the State's summation were the following:

He tells you when he testified that he's less than three feet away from both defendants . . . . This is how close Manuel Navarrete was standing from the defendant, and nothing was obstructing his view. Take into consideration the degree of attention that he had when he was viewing the people involved in this robbery. He's in the jewelry business. People in the jewelry business focus on faces. They focus on hands. They focus on necks. Why? It's common sense. That's what they're selling, so they're going to pay attention to those details for sale purposes.

Delevry correctly argues that there was no testimony at trial that people in the jewelry business focus on hands, faces, and necks. However, although not grounded in specific testimony at trial, it is a reasonable inference and fair comment that a salesman looking to make a sale would devote his attention to a prospective customer, especially one who sought the salesman's assistance in making a purchase.

Nonetheless, even if the prosecutor's remarks were improper, they were harmless under the circumstances. First, there was evidence that Navarrete and Aguilar had ample opportunity to view the two defendants at the time of the crime. In fact, Navarrete came face to face with Delevry on three occasions, first when he came into the store to purchase "an ID" and twice on the date of the robbery. Although it was Livingston who spoke with Navarrete about purchasing a name plate on the date of the robbery, Delevry stood close by at all times. He was also face to face with Navarrete and Aguilar when the handgun was fixed on them and their son.

Also, because Delevry raised no objection at trial, we are permitted to infer that defense counsel did not believe "the prosecutor's remarks were . . . prejudicial at the time they were made," State v. Josephs, 174 N.J. 44, 126 (2002); see also State v. Frost, 158 N.J. 76, 83 (1999) ("Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial."). The jury was also instructed that "[a]rguments, remarks, questions, openings, summations of counsel are not evidence and must not be treated as evidence," and that "[a]ny comments by counsel are not controlling." Thus, in light of the strength of the State's case and the fact that no objection was made at trial, the prosecutor's remarks, even if marginally inappropriate, did not rise to the level of plain error. See Nero, supra, 195 N.J. at 410.

Delevry's final point challenges his twelve-year sentence, subject to the NERA, as excessive. Appellate review of sentencing decisions is governed by an abuse of discretion standard. See State v. Cassady, 198 N.J. 165, 180 (2009). "Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]'" ibid. (quoting State v. Jarbath, 114 N.J. 394, 401 1989), "an appellate court may not substitute its judgment for that of the trial court." Ibid. (quoting State v. Evers, 175 N.J. 355, 386 (2003)). We consider, first, whether the correct sentencing guidelines have been followed, second, whether there is substantial credible evidence in the record to support the findings which warrant application of those guidelines, and third, "whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984). As long as the aggravating and mitigating factors found were based upon credible evidence in the record and the sentence imposed is within statutory guidelines, the trial court "need fear no second-guessing." Roth, supra, 95 N.J. at 365.

The court found two aggravating factors, Delevry's risk of recidivism, N.J.S.A. 2C:44-1(a)(3), and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). The court also observed that Delevry appeared to show no remorse despite substantial evidence pointing to his guilt. Nevertheless, the court also found two mitigating factors, defendant's lack of a prior criminal record, N.J.S.A. 2C:44-1(b)(7), and that incarceration would impose a significant hardship on him, N.J.S.A. 2C:44-1(b)(11). Concluding that the aggravating factors substantially outweighed the mitigating factors, the court imposed a sentence just two years longer than the statutory minimum.

The sentencing court's findings were supported by credible evidence in the record. State v. Hupka, 203 N.J. 222, 245 (2011). In finding aggravating factor three, risk of recidivism, the court noted that although Delevry was just twenty-two years of age, he had "two juvenile adjudications with two Violations of Probation and a juvenile conference committee, two municipal court convictions with conditional discharge . . . [and] [eleven] motor vehicle suspensions, six for driving on the revoked list." Similarly, in finding that the aggravating factors outweighed the mitigating factors, the court cited Delevry's lack of remorse and the court's belief that he demonstrated a threat to public safety.

Delevry takes particular issue with the court's emphasis on his apparent lack of remorse, asserting, "the court was not entitled to take these factors into consideration in imposing a higher term of years than otherwise would be imposed," and urging that an appropriate sentence would not exceed the minimum term of ten years. We find this argument meritless.

Delevry's sentence, twelve years subject to the NERA for a first-degree robbery, was well within the guidelines of N.J.S.A. 2C:43-6(a)(1). Despite finding that the aggravating factors substantially outweighed mitigating factors, the court imposed a term at the lower end of the ten-to-twenty-year range. We perceive no manifest injustice in the length of this sentence and parole ineligibility period, as it does not shock our conscience. State v. Bieniek, 200 N.J. 601, 612 (2010); Roth, supra, 95 N.J. at 363-65.

B.

Livingston raises the following arguments for our consideration:

POINT I: BECAUSE DEFENSE COUNSEL COULD NOT CHALLENGE THE CREDIBILITY OF THE IN-COURT IDENTIFICATION OF DEFENDANT BY ONE OF THE VICTIMS, WITHOUT ALSO REVEALING TO THE JURY THAT SHE HAD IMPROPERLY SEEN THE DEFENDANTS IN HANDCUFFS IN THE COURTROOM, THE DENIAL OF A MISTRIAL DEPRIVED DEFENDANT OF THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

 

POINT II: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

We do not find these arguments persuasive.

Livingston's first argument is quite similar to the contentions raised by Delevry's points one and two, which we have rejected. The main difference, however, is Livingston's heavy reliance upon State v. Sugar, 100 N.J. 214 (1985), which is claimed to support the principle that a witness should not be allowed to testify if fair and effective cross-examination would require the introduction of prejudicial inadmissible evidence. Id. at 230.

In Sugar, a detective investigating a murder was found to have engaged in illegal eavesdropping and the resulting evidence was suppressed. Nonetheless, he was permitted to testify at trial because he was still subject to cross-examination. Id. at 226. On appeal, the Court issued a narrower holding than is advocated by Livingston, ruling that "a person who actually participated in, attended, or was contemporaneously informed of the unlawful intercept must be deemed to have been tainted by his direct knowledge of the intercept; he is therefore disqualified to testify as a witness in defendant's prosecution." Id. at 226-27. The court emphasized that the egregiousness of the official misconduct necessitated a remand to both "redress the constitutional injury but also to thwart even the temptation to repeat such conduct." Id. at 228.

The same degree of official misconduct is simply not present here. Although it was an operational error to allow Aguilar to enter the courtroom before defendants were seated and the restraints removed, it had no inherent capacity to inevitably deprive Livingston of a fair trial. The evidence against Livingston was strong. Navarrete spoke face to face with Livingston the day of the crime, enhancing the strength of his identification, and he also made an in-court identification of Livingston, which took place prior to Aguilar viewing defendants in handcuffs. Moreover, the fingerprint evidence linked Livingston to the crime.

Furthermore, defense counsel was given a voluntary choice between (1) exploring the fact that his client was manacled and in custody before the jury or (2) keeping that information private. The trial court specifically addressed the potential effect of having the jury hear that defendants were in custody, stating:

I had suggested to counsel to talk to their clients about in their cross-examination and their exploration of this viewing, if they wanted to consider not mentioning handcuffs, just the fact that the two defendants walked in with them and sat at counsel table . . . did that have an [e]ffect on you in making your identification of them. . . . I'm leaving it to them to think about in weighing the prejudice they think it will have to the jury by hearing the information about handcuffs.

Therefore, although defense counsel might have reasoned that cross-examination of Aguilar would be less compelling without evidence that defendants were observed as they were, this was a purposive decision intended to better impeach the credibility of Aguilar's in-court identification. Ordinarily, "[s]trategic decisions made by defense counsel will not present grounds for reversal on appeal." State v. Buonadonna, 122 N.J. 22, 44 (1991).

Second, it cannot reasonably be said that the admission of Aguilar's in-court identification resulted in a "manifest injustice." State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). As we have already noted, the trial court's decision as how to best proceed was informed by its first-hand experiences during the trial. The trial court wisely believed a limiting instruction was sufficient to constrain the prejudice, if any, caused by the jury's knowledge of Livingston's custodial status. Specifically, it found that "Miss Aguilar's in-court identification of the defendants was based on past experience as opposed to viewing the defendants in handcuffs." We find no reversible error, constitutional or otherwise, on this record.

Livingston also asserts that his fifteen year sentence subject to the NERA is manifestly excessive. Applying the sentencing principles already discussed, we have no grounds to disturb the sentence imposed.

At sentencing, the court found three aggravating factors, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). It found no mitigating factors.

The trial court imposed a term of imprisonment three years longer than the sentence imposed on Delevry. Citing State v. Roach, 167 N.J. 565 (2001), the court explained its rationale for a weightier sentence by noting that unlike Delevry, Livingston had "five juvenile adjudications, [which included robbery and possession of a weapon for an unlawful purpose]." Additionally, Livingston had committed two offenses prior to the robbery at The Little Diamond Jewelry Store and two additional offenses afterwards. This was not only Livingston's second robbery conviction, but "[o]ver a seven-month period, defendant committed an armed robbery, three thefts, [and] four receiving stolen properties." Therefore, the difference between his and Delevry's sentence was justified. See State v. Roach, 146 N.J. 208, 232 (1996) ("A sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.") (quoting State v. Hicks, 54 N.J. 390, 391 (1969)).

Finally, the fifteen-year sentence imposed was in the middle of the sentencing range for a first-degree robbery even though the court found that "the aggravating factors substantially outweigh the mitigating factors." N.J.S.A. 2C:43-6(a)(1). This sentence emerged from the trial court's principled discretion and we find no basis to disturb it.

Affirmed.

 

 

1 At the time of trial, Lieutenant Ramos had held the rank of lieutenant for approximately six months. At the time of the robbery, however, he was a sergeant in Red Bank's detective bureau. The trial transcript refers to Ramos as both a sergeant and a lieutenant. We elect to call Ramos by the rank he held at the time of trial.

2 Photograph number four in Navarrete's photo array book depicted Livingston.

 

3 Photograph number three in Aguilar's photo array book depicted Livingston.

4 Sims received an engagement ring from Delevry on August 20, 2007, but according to Sims, the engagement ended "a few months after he got arrested."

5 We do not view the revised identification procedures of State v. Henderson, ___ N.J. ___ (2011) as applicable to this case. There, the Court instructed that its ruling shall "apply to future cases only. . . . As to future cases, today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at slip op. 160-61.