STATE OF NEW JERSEY v. WORDELL PHELPS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0576-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WORDELL PHELPS,

Defendant-Appellant.

______________________________

December 20, 2012

Submitted November 26, 2012 - Decided

Before Judges Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-04-0985.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his convictions for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); fourth-degree unlawful possession of a weapon (a bat), N.J.S.A. 2C:39-5d; third-degree possession of a weapon (a bat) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4).1 Defendant contends that the judge erred by failing to charge the jury on identification and imposing an excessive sentence. We affirm.

Defendant approached the seventeen-year-old victim in a parking lot and identified himself as the father of the victim's co-worker, someone with whom the victim allegedly had an altercation a few days earlier.2 Defendant struck the victim in the head with a wooden bat and knocked him to the ground. Defendant then repeatedly kicked the victim in the head. At the end of the assault, defendant asked several witnesses if he should "kill [the victim]."

One witness pulled into the parking lot, directed his headlights on the attack, and watched the thrashing from the driver's seat of his vehicle. The witness observed defendant kick the victim "at least three" times in the head and "repeatedly" in the mid-section, and described the event as "sickening." He sounded his horn to scare off defendant and then watched defendant, and some others, enter a dark-colored SUV and drive away. As they drove away, the witness called 9-1-1 and provided a description of defendant as well as the SUV's license plate number, to the police dispatcher.

The victim attempted to drive himself to a nearby hospital, but only managed to travel approximately 400 feet before he stopped in the middle of the road and waited for assistance. Officer Michael Flowers located the victim who stated that he had been hit in the head by a bald-headed black male, approximately 5'7" tall, wearing a red-hooded sweatshirt and black jacket. The victim informed Officer Flowers that defendant left the scene in a black Range Rover and the police then broadcasted the descriptions over the radio.

Simultaneously, Officer Edwin Diaz stopped a nearby vehicle fitting the description that the 9-1-1 caller gave. He approached the SUV, observed defendant seated in the driver's seat, and asked for his credentials.3 Defendant produced a vehicle registration and an insurance card, but no license, and then identified himself as Derrick Osborn. The officer returned to his police car, checked the name in a DMV database, and learned that no such person existed. He realized that defendant fit the description broadcasted over the radio, directed defendant and the others to exit the SUV, and then searched the vehicle. After the officer observed a black bat and dog repellant in the SUV, he arrested defendant and transported him to headquarters.

The police placed defendant in a holding cell and began processing him. While doing so, three officers overheard defendant admit to the altercation with the victim in the parking lot. Although defendant maintained at first that his name was Derrick Osborn, the police confirmed defendant's true identity through his fingerprints.

The judge conducted an eight-day trial in January and February 2011. The state produced testimony from four police officers, the victim, and the physician who treated the victim in the hospital. At trial, the victim identified defendant as the individual who attacked him. Defendant did not testify and produced three witnesses: a McDonald's shift manager; his girlfriend, who is also the victim's co-worker's mother; and the co-worker. The jury then found defendant guilty of the assault and weapons-related offenses. On March 18, 2011, the judge granted the State's motion to treat defendant as a persistent offender, pursuant to N.J.S.A. 2C:44-3a, and imposed an aggregate nine-year prison term with four years of parole ineligibility.4 This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF IDENTIFICATION, AND THAT IT WAS THE STATE'S BURDEN TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL ON COUNTS ONE, TWO, AND THREE, AND CONSTITUTED PLAIN ERROR, BECAUSE DEFENDANT'S IDENTITY AS THE VICTIM'S ATTACKER WAS THE KEY ISSUE ON THOSE COUNTS. U.S. Const. amend. VI, XIV; N.J. Const. art. I, 1, 9, 10. (Not Raised Below).

POINT II

THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY, PUNITIVE, AND MUST THEREFORE BE REDUCED.

Defendant also raised the following points in his pro se brief:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, WHERE COUNSEL FAILED TO REQUEST AND/OR REFUSED TO ACCEPT AN IN-COURT IDENTIFICATION JURY CHARGE: FAILED TO MOVE TO SUPPRESS OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY DEFENDANT: FAILED TO FULLY DEVELOP A DEFENSE, THEREBY CONFUSING JURORS, THUS RESULTING IN DEFENDANT BEING DENIED HIS RIGHT TO A FAIR TRIAL, AND THE EFFECTIVE ASSISTANCE OF COUNSEL. U.S. Const. art. I, 1, 10. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT FAILED TO GIVE JURORS A CHARGE ON HOW TO ASSESS POLICE OFFICERS' TESTIMONY, THUS VIOLATING DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS. U.S. Const. amend. 6, 14; N.J. Const. art. I, 1, 10. (NOT RAISED BELOW).

POINT III

JURORS NAPPING AND/OR OTHERWISE NOT PAYING ATTENTION TO TESTIMONY AND THE TRIAL COURT'S INSTRUCTIONS, RESULTED IN DEFENDANT BEING DENIED HIS RIGHTS OF DUE PROCESS AND A FAIR TRIAL. U.S. Const. amend. 6, 16; N.J. Const. art. I, 1, 10. (NOT RAISED BELOW).

POINT IV

THE WEAPON DEFENDANT WAS ALLEGED TO HAVE USED IN THE INCIDENT, SHOULD HAVE BEEN SUPPRESSED DUE TO A CHAIN OF CUSTODY VIOLATION INTER ALIA, THUS VIOLATING DUE PROCESS AND APPELLANT'S RIGHT TO A FAIR TRIAL. U.S. Const. amend. 6, 14; N.J. const. art. I, 1, 10. (NOT RAISED BELOW).

We begin by addressing defendant's contention that the judge erred by failing to charge the jury on the victim's in-court identification. Defendant maintains that the judge should have provided the jury with instructions on how to evaluate such identifications.

It is well settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State

v. Reddish, 181 N.J. 553, 613 (2004). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007). Although a flawed jury charge is a poor candidate for rehabilitation or the application of the harmless error rule, State v. Simon, 79 N.J. 191, 206 (1979), a defendant must still demonstrate that the error affected the outcome of the jury's deliberations, State v. Jordan, 147 N.J. 409, 422 (1997).

Here, defendant did not request any jury instruction on identification, nor object to its omission at trial. Therefore, the court's failure to give this instruction requires reversal only if its omission constituted plain error. State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005). "The determination of [whether the omission of this instruction constitutes] plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." State v. Cotto, 182 N.J. 316, 326 (2005); see also State v. Salaam, 225 N.J. Super. 66, 70 (App. Div.), certif. denied, 111 N.J. 609 (1988).

To be sure, we note that the doctrine of invited error precludes defendant from arguing that the judge erred by not giving the charge. At the pre-charge hearing, the following discussion occurred between the judge and defense counsel:

COURT: So, there is one more issue that we need to discuss on the record with regards to the charge. [Defense counsel], are you requesting the charge on identification?

[DEFENSE COUNSEL]: No . . .

. . . .

COURT: Okay, but we all agree that the charge is not relevant. There's no real identification issue in this case. Okay. All right. So, we're taking that out. Thank you.

"A defendant cannot request the trial court to take a course of action, and upon adoption by the court take his chance on the outcome of the trial, and, if unfavorable, then condemn the very procedure which he urged, claiming it to be error and prejudicial." State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (citing State v. Pontery, 19 N.J. 457, 471 (1955)). The doctrine of invited error "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is applied if the trial court relies on a defendant who is able to convince or mislead the court into taking a position that defendant now urges is error on appeal. Ibid.

Nevertheless, we emphasize that the judge's omission of a charge on identification did not constitute error, let alone plain error. Generally, a trial court must instruct the jury on identification when identification is a "'key issue,'" even if a defendant does not request the charge. Cotto, supra, 182 N.J. at 325 (quoting State v. Green, 86 N.J. 281, 291 (1981)). Here, identification was not a key issue during the trial, as made clear by the overwhelming evidence that the State produced and defense counsel's representation that he did not want such a charge.

Moreover, the strength and quality of the State's corroborative evidence was substantial. Defendant introduced himself to the victim as the co-worker's father; the victim had ample opportunity to observe defendant; the police obtained defendant's license plate from the witness, who had an unobstructed view of the beating, stopped defendant's vehicle moments after the attack within blocks of the incident, and seized the wooden bat; defendant fit the description that the victim gave; and three officers heard defendant at headquarters admit to the altercation with the victim. Consequently, we are satisfied that the issue of identification was not compelling enough to require the judge to furnish an identification charge sua sponte. Salaam, supra, 225 N.J. Super. at 72.

Next, we reject defendant's contention that his sentence was excessive. The scope of our review of a sentence is limited. Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). Rather, we review a sentence within a set of guidelines established in State v. Roth, 95 N.J. 334, 363-66 (1984). Within these guidelines, we can

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Id. at 364-65.]

In sentencing a defendant, a trial court must identify the

relevant aggravating factors of N.J.S.A. 2C:44-1a and the

relevant mitigating factors of N.J.S.A. 2C:44-1b, "determine

which factors are supported by a preponderance of the evidence,

balance the relevant factors, and explain how it arrives at the

appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215

(1989) (citing State v. Kruse, 105 N.J. 354 (1987)). "An

appellate court is bound to affirm a sentence, even if it would

have arrived at a different result, as long as the trial court

properly identifies and balances aggravating and mitigating

factors that are supported by competent credible evidence in the

record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01

(1989)).

The judge found that three aggravating factors were present: the risk that defendant will commit another offense, the extent of his prior record, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(3), (6) and (9). The judge concluded that the aggravating factors outweighed the non-existing mitigating factors. We perceive no manifest injustice in the length of defendant's sentence and parole ineligibility period, as they do not shock our conscience. Roth, supra, 95 N.J. at 363-65. Furthermore, the judge followed the guidelines established by State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded in part by statute, N.J.S.A. 2C:44-5, and imposed a consecutive one-year prison term on the fourth-degree hindering conviction. The aggravated assault and hindering offenses are separate acts that defendant committed in separate times and places.

Finally, after thoroughly considering the record and briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only the following brief comments.

"Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). We decline to address defendant's arguments without an adequate record. Defendant must raise any such ineffective assistance of counsel claims through a petition for post-conviction relief under Rule 3:22-1.

1 The jury acquitted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a weapon (mace) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon (mace), N.J.S.A. 2C:39-5d.

2 Although defendant is not actually related to the co-worker, the co-worker's mother testified that defendant treated the daughter as "his own [child]."

3 Four other individuals occupied the SUV as well.

4 The judge sentenced defendant on the third-degree aggravated assault conviction to eight years in prison with four years of parole ineligibility; a concurrent one-year prison term on the fourth-degree conviction of unlawfully possessing the bat; a concurrent four years in prison with two years of parole ineligibility on the third-degree conviction of possessing the bat with an unlawful purpose; and a consecutive one-year prison term on the fourth-degree hindering conviction.