STATE OF NEW JERSEY v. JAMES WOODS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1010-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WOODS,

Defendant-Appellant.

______________________________________________________

August 21, 2013

 

Submitted February 25, 2013 - Decided

Before Judges Graves and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

08-12-3640.

Joseph E. Krakora, Public Defender, attorney

for appellant (Gilbert G. Miller, Designated

Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Linda A. Shashoua,

Assistant Prosecutor, Deputy Chief, Motion

and Appeals Unit, of counsel and on the

brief).

PER CURIAM

In a seven-count indictment, defendant James Woods and co-defendant Perry Alston were jointly charged with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count one); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count three); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1) (count four); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count six). Alston was separately charged with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count five); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10.5 (count seven). Following a jury trial, defendant was convicted of all charges against him.

At sentencing on August 13, 2010, the court denied the State's motion to sentence defendant to an extended term as a persistent offender. The court identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging counts two, three, and four into count one, the court sentenced defendant to a seventeen-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a concurrent one-year term on count six.

On appeal, defendant submits the following arguments:

POINT I

 

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT DEFENDANT'S CONVICTIONS, AND HIS CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE.

 

POINT II

 

THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE RESULTING IN UNDUE PREJUDICE.

 

POINT III

 

THE PRO SE CO-DEFENDANT'S IMPROPER OPENING STATEMENT REMARKS WERE HIGHLY PREJUDICIAL TO DEFENDANT AND DEPRIVED HIM OF A FAIR TRIAL.

 

POINT IV

 

DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

 

POINT V

 

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

We conclude from our examination of the record and the applicable law that defendant received a fair trial and an appropriate sentence. Accordingly, we affirm.

Both co-defendants were tried together.1 Sergeant Rafael Martinez of the Camden City Police Department testified that on August 27, 2008, he was assigned to patrol the Broadway Avenue area of Camden. Martinez testified that the area was designated a "high-crime" area where "a lot of drug sales" took place.

At around 2:00 p.m., Martinez was on routine patrol in a police vehicle on William Street behind a methadone clinic, when he "observed two black males and a white male standing in the parking lot" of the clinic. The white male was later identified as the victim, Steven Phillips. According to Martinez, the two black males, later identified as co-defendants, fled the scene when they observed his vehicle:

As soon as the two black males observed my presence, they were looking right at me, they immediately took off running. Of course, I said something's going on. I immediately drove up to the victim with my window rolled down from the passenger side. He told me, "They just robbed me."

 

Martinez chased the two individuals on foot and observed them enter an alleyway. Martinez testified there was no exit from the alleyway, "so they had nowhere to go."

As Martinez entered the alleyway, he instructed the two men "to stop and get down," but they did not comply. He then observed Alston "drop an object onto the ground," and testified that defendant ran past him while he was trying to detain Alston. According to Martinez, Alston said, "I was selling him pills." Martinez arrested Alston and found several different pills in a prescription pill container in his pocket. Martinez also recovered the object that Alston dropped a folding knife. Other officers apprehended defendant.

Phillips testified at trial he was at the clinic for counseling and to receive methadone. According to Phillips, he left the clinic between 12:00 and 12:30 p.m., and as he was leaving two men approached him and began to harass him: "As I was approached, basically the gentleman pulled a knife out on me. Another gentleman went for my wallet. I tried to knock his hand down, away, a couple of times. Then the one gentleman told the other gentleman to stab me." Phillips identified Alston as the man with the knife. Phillips said he "flung" his wallet, containing "roughly" fifteen or sixteen dollars, and his medication. Defendant took the money from the wallet and both men ran when they saw Martinez arrive.

Phillips followed defendant after he ran past Martinez and watched other officers detain him. Phillips testified the police asked him how much money was stolen from his wallet, and he told them, "I believe it was a ten, a five, and a one, or a ten and six ones." According to Phillips, the money in defendant's pocket "was balled up and it was exactly what I said at the time." Phillips identified the knife collected by Martinez as the knife that was used in the robbery.

Neither defendant nor Alston testified or presented any witnesses. In summation, defense counsel argued, "This was all a ruse by Mr. Phillips to get out of the fact that he's a drug user still using drugs caught in the act of buying drugs."

After the jury rendered its verdict, defendant moved for a new trial pursuant to Rule 3:20-1. The trial court denied the motion, reasoning as follows:

[Defendant's first] argument is that the physical evidence does not support the testimony of the victim, Steven Phillips, and that Mr. Phillips lacks credibility and, therefore, his testimony could not have reasonably been believed by the jury. The argument then is essentially since that is the sole source of the State's proofs as to the theft element of the robbery . . . the robbery conviction cannot stand.

 

. . . .

 

. . . The argument is that Mr. Phillips's testimony that he was robbed cannot be believed because: one, the items he said were taken from him were never recovered; two, Detective Martinez saw both defendants the entire time that they fled the scene and did not see either of them discard anything, other than Mr. Alston discarding the knife in the alley; and, three, neither defendant was found to have on his person money in the exact denomination that Mr. Phillips said was taken from him. However there are two problems with this argument: first, Detective Martinez did not observe both of the defendants the entire time. Once he cornered both the defendants in the alley Mr. Woods ran past him. Mr. Woods was later apprehended by another police officer. The jury could reasonably have believed that Mr. Woods discarded the stolen items after he left the alley.

 

Another problem with this argument is that it assumes that there was some sort of fatal inconsistency in Mr. Phillips's testimony regarding the amount of money taken from him.

 

Mr. Phillips testified that the amount taken was either three fives and two ones or two fives and two ones. He further testified that he saw defendant Woods in the custody of another police officer on the street and that the officer required Mr. Woods to empty his pockets and that the balled up money in the pocket "matched exactly what was taken from him."

 

. . . .

 

Moreover, as eluded to before, proof of theft does not require that the items stolen be recovered and introduced into evidence. Theft simply requires proof that the defendant knowingly took control over property of another with a purpose to deprive the person of the property. Here, the testimony of Steven Phillips about the events behind the methadone clinic were sufficient by itself to establish the elements of theft.

 

. . . .

 

Defendant Woods also asserts that Mr. Phillips lacked credibility because of conflicts in his testimony about when he arrived at the clinic. More precisely as elaborated on here the argument is essentially that . . . Mr. Phillips tried to tailor his testimony in light of the discovery and production of the progress notes from Parkside Clinic.

 

That issue was explored in detail on cross-examination, and during that cross-examination I believe Mr. Phillips admitted at one point that he could possibly have been hanging around in the area for another hour or two hours. There was questioning from [defense counsel].

 

. . . .

 

As the model jury charge on credibility of witnesses states "the jury may accept all of a witness' testimony, a portion of it or none of it."

 

Mr. Phillips's testimony about the robbery itself was compelling and was corroborated by the testimony of Sergeant Martinez who testified that he arrived on the scene as the event was taking place and that a few seconds later as he stopped his vehicle right next to Mr. Phillips and rolled down his window, Mr. Phillips told him "they just robbed me."

 

. . . .

 

So, for all of these reasons I find after having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses that it does not clearly and convincingly appear that
. . . there was a manifest denial of justice under the law. Therefore, the defendant Woods's motion for a new trial is denied.

 

On appeal, defendant first argues "that under the evidence presented, his convictions cannot stand." Pursuant to Rule 2:10-1, a ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." Our task is to determine if a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). Here, the court's factual findings are supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 472 (1999), and it correctly applied well-settled legal principles. We therefore affirm substantially for the reasons stated by the trial court.

In his second point, defendant argues the court improperly denied his request to give a "false in one, false in all" charge regarding Phillips's testimony. The "false in one, false in all" charge is discretionary and may be given when there is an indication that a witness has intentionally testified falsely as to a material fact. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). In this case, the court instructed the jury that it alone was responsible for determining the credibility of each witness and that it could disregard in part or in whole the testimony of a witness it deemed incredible. Thus, the court provided the jury with the substantial equivalent of the standard "false in one, false in all charge," and we find no error or abuse of discretion by the trial court.

Defendant also argues for the first time that the court provided "deficient" instructions on accomplice liability. When a defendant is charged with armed robbery based on accomplice liability, the Supreme Court has held a court's instruction must "clearly require the jury to find that defendant had shared the purpose to commit a robbery with a weapon." State v. Weeks, 107 N.J. 396, 405 (1987). In appropriate cases, a court must also instruct the jury that an accomplice may be convicted of lesser-included offenses. State v. Bielkiewicz, 267 N.J. Super. 520, 531 (App. Div. 1993).

In this case, the court instructed the jury:

In order to convict the defendant as an accomplice to the crime charged, you must find that the defendant had the purpose to participate in that particular crime or in that particular conduct. He must act with the purpose of promoting or facilitating the commission of the substantive crime with which he is charged or the particular conduct alleged.

 

It is not sufficient to prove only that the defendant had knowledge that another person was going to commit the crime charged or engage in the conduct alleged. The State must prove that it was the defendant's conscious object that the specific conduct charged be committed.

 

. . . .

 

As to Defendant James Woods, option one, if you find that the State has not proven beyond a reasonable doubt any of the elements of the crime of robbery [or] of the lesser-included offense of theft from the person, then you must find Defendant James Woods not guilty of both the robbery charge and the lesser-included charge of theft from the person.

 

Option two: If you find that the State has not proven beyond a reasonable doubt any of the elements of the crime of robbery [or] of the lesser-included offense of theft from the person, then you must find Defendant James Woods not guilty of the robbery charge but guilty of the lesser-included charge of theft from the person.

 

Option three: If you find that the State has proven beyond a reasonable doubt that Defendant James Woods committed the crime of robbery . . . but if you find that the State has not proven beyond a reasonable doubt that James Woods is liable as an accomplice for Perry Alston's conduct in being armed with or using or purposefully threatening the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find James Woods guilty of robbery in the second degree.

 

Option four: If you find that the State has proven beyond a reasonable doubt that Defendant James Woods committed the crime of robbery and that James Woods is liable as an accomplice for the conduct of Perry Alston in being armed with a deadly weapon or using or threatening the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find Defendant James Woods guilty of robbery in the first degree.

 

Accordingly, the trial judge correctly instructed the jury on accomplice liability, and we find no error, let alone plain error. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.").

In his third point, defendant argues Alston, who represented himself at trial, "made improper opening statement remarks which were highly prejudicial to defendant and deprived him of a fair trial." Specifically, defendant objects to Alston's statement that he "and Mr. Woods [were] at the scene because they were getting high."

Defense counsel objected to the remark and, at sidebar, the trial judge instructed Alston not to testify during the remainder of his opening statement. Following Alston's opening statement, the trial judge provided the jury with the following instruction:

Now that we've completed the opening arguments and before we actually hear from the witnesses, I do want to remind you of the point that I made during the general instructions, which is that the arguments of counsel and, as well, Mr. Alston presenting his opening arguments . . . are not evidence. . . . [T]he evidence is limited strictly to what you will hear from witnesses, documents that are admitted as exhibits, and physical evidence that may be admitted as exhibits.

 

Thus, the trial court correctly and promptly instructed the jury to only consider the evidence presented during the course of the trial, and that the opening statements and summations were not evidence. Under these circumstances, Alston's improper statement was harmless. R. 2:10-2.

In his fourth point, defendant argues he "was denied his Sixth Amendment right to the effective assistance of counsel at trial." However, defendant's allegations, including his claim that counsel was ineffective in failing to move for severance, are beyond the scope of the present record and are more appropriate for consideration if defendant files an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990).

Defendant also challenges his sentence. "An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable." State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

In this case, there is sufficient credible evidence to support the trial court's findings regarding the aggravating factors and the absence of mitigating factors; the court correctly applied the sentencing guidelines set forth in the Criminal Code; and the court reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.

Affirmed.

 

1 We set forth essentially the same facts in co-defendant Alston's appeal, Docket No. A-2292-10, which is being filed simultaneously with this opinion.