STATE OF v. VICTOR ROUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4148-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR ROUSE,

Defendant-Appellant.

__________________________

July 10, 2013

Argued April 25, 2012 - Decided

Before Judges Fuentes, Harris, and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Indictment

No. 09-10-745.

Alicia J. Hubbard, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora,

Public Defender, attorney; Ms. Hubbard, of counsel

and on the brief).

Nathan C. Howe, Assistant Prosecutor, argued the

cause for respondent (Geoffrey D. Soriano, Somerset

County Prosecutor, attorney; Mr. Howe, of counsel

and on the brief).

PER CURIAM

Defendant Victor Rouse was tried before a jury and convicted of second degree robbery, N.J.S.A. 2C:15-1. The trial court sentenced him to a term of eight years, with an eighty-five percent period of parole ineligibility and a three-year term of parole supervision upon completion of his sentence as required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant raises a number of arguments on appeal attacking the manner in which the trial court instructed the jury on a variety of legal issues that arose during the trial. In his view, the trial court's erroneous rulings materially prejudiced his defense and deprived him of a fair trial. With respect to the sentence imposed by the trial court, defendant contends that the trial judge erred in failing to find, as a mitigating factor, that he "did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(2). As a consequence, defendant argues that his sentence was both excessive and unduly punitive.

After reviewing the record developed before the trial court and mindful of our standard of review, we affirm. We derive the following facts from the evidence presented at trial.

I

On October 7, 2009, at approximately 7:15 p.m., Kristin Kablis arrived at McCormick's Pub located at the Somerset Hotel in Somerville to play table pool as part of a team consisting of seven other players. At some point between 8:30 and 9:00 p.m., Kablis decided to go out alone to smoke a cigarette. She walked out using the pub's side exit that leads to Main Street in Somerville.1

She walked down the stairs to call her friend Jennifer Stroka, using her cellular phone. When she made the call, Kablis commented that it was "really windy" and Stroka told her that "she couldn't hear [her]." She then "walked down a little bit [where] there is a tunnel on the side and [she] went into the tunnel where [Stroka] [could] hear [her]." Utilizing a photograph depicting the tunnel in question, the prosecutor asked Kablis to step down from the witness chair and point out for the jury where she was standing at the time. Kablis told the jurors that she was standing on "a little ledge . . . on the side . . . where the shadow starts to come in."

After recapitulating that she was in the tunnel, on the phone with Stroka, smoking a cigarette, the prosecutor then asked Kablis to describe what occurred next. She testified as follows:

Um, this gentleman came in and all of a sudden he was next to me leaning against my shoulder and asked me for a cigarette. I gave him the cigarette and I gave him the lighter thinking that was going to be it. He lit his cigarette. I got the lighter back and at that point he put his arms against the wall and asked me for money and I told him I didn't have any money, and he said, I'm not asking you for money, I'm telling you to give me money, and I kind of pushed away and he -- he said what exact -- are you on the phone with your man? And I didn't respond. And he goes, oh, that that is your man, so he can't do anything and along the lines that you are going to be in trouble, and I said, actually my man is inside. At that point I tried to push him to move and he was in my face and he grabbed my arm and I hurried up and kind of elbowed him, got around the corner . . . into the light and he was following me and I turned around and moved faster and my friend Doug [Hendry] came out of the bar and saw me there so he walked towards me and he saw him walking towards me and then the gentleman left and walked the other way at that point.

Kablis indicated that the entire episode lasted "a minute to two minutes." As Hendry approached, she asked him "not leave [her] side" and "pretend" he was her boyfriend. Hendry testified that when he came out of the bar, Kablis was "on her phone having a cigarette" and that "somebody to her left [was] walking away from her." He said she "seemed pretty shaken" and that "[w]hen she got off the phone she explained to [him] that somebody had tried to mug her" in the tunnel next to the bar.

Kablis was soon able to report the event to Somerville Police Officer Cole Williams-Ficarra.2 He testified that Kablis was "visibly shaken" and showed no signs of intoxication. According to Officer Williams-Ficarra, Kablis described her assailant to him as "a dark-skinned black male, approximately six foot two, wearing [a] dark colored jacket, dark colored jeans, and a gray skull cap . . . [with a] medium build."3 Officer Williams-Ficarra relayed the information to other patrol units in the area.

While speaking with Kablis, Officer Williams-Ficarra received a radio transmission that an individual matching the assailant's description had been detained approximately 150 yards west of McCormick's Pub. Officer Williams-Ficarra transported Kablis to the location in the rear, driver's side of his marked patrol car. While en route, Officer Williams-Ficarra told Kablis that patrol units had an individual stopped. He explained at trial as follows: "We were going to ask her if this was the person that had been involved in the incident with her and all she needed to do was tell us whether it was or was not the person." Officer Williams-Ficarra identified defendant in court as the person who was detained that night. He also confirmed that Kablis told him that defendant was the person who had accosted her earlier.

According to Officer Williams-Ficarra, when he and Kablis arrived, defendant was standing "approximately fifteen feet south of [them] to the driver's side." Although there were three other police officers around him, defendant was not restrained "in any way." Officer Williams-Ficarra testified that, before he had an opportunity to say anything to Kablis, she "immediately" identified defendant as the person who had accosted her. She uttered her words without hesitation and indicated to Officer Williams-Ficarra that she was one-hundred percent certain defendant was the man.

Defendant was the only person presented to Kablis as a possible suspect. She testified that between forty-five minutes to an hour had passed between the time of the alleged mugging and the time of the identification. Officer Williams-Ficarra estimated that roughly twenty to twenty-five minutes had passed. The State also called Police Officer Claude Racine as a witness. He was one of the officers who initially detained defendant. On cross-examination, Officer Racine stated that he and another officer were holding defendant at the time Kablis made her identification. Defendant was arrested once Kablis identified him as her assailant.

Kablis was not able to positively identify defendant at trial. Although he resembled the man who confronted her in the tunnel outside McCormick's Pub, Kablis testified that his dress and demeanor appeared different. Officer Williams-Ficarra testified that defendant appeared to have gained "a considerable amount of weight" -- more than fifty pounds -- between the time of his arrest and the time of trial.

Before the State called Officer Williams-Ficarra as part of its case in chief, the parties agreed to stipulate certain facts. In lieu of presenting the live testimony of Jennifer Stroka, defense counsel and the prosecutor agreed to the following facts, which were read on the record to the jury by the trial judge:

THE COURT: Ladies and gentlemen of the jury, the parties, that is the State and defense, have made what is known as a stipulation, and I'll explain later to you essentially what a stipulation is. But - - and I'll read it to you now. The parties in this action agree to the following facts in lieu of witness testimony. Jennifer Stroka was the friend who Kristin Kablis was speaking to on her cellular telephone when approached by the defendant. Ms. Stroka reported to Sergeant Thomas O'Donnell of the Somerville Police Department that while speaking to Ms. Kablis she heard a man say, do you have any money? After which Ms. Kablis told her that she [had] to go quickly and hung up. Ms. Stroka reported to Sergeant O'Donnell that she did not realize what had happened until much later when Ms. Kablis called her back.

[(Emphasis added).]

The trial court thereafter marked the stipulation as "J-1," a joint exhibit in evidence, following defense counsel's request that "it get moved into evidence as [it has] been accepted by both parties."

II

Against this record, defendant now appeals, raising the following arguments:

POINT I

THE TRIAL COURT'S USE OF AN INCORRECT JURY INSTRUCTION CONCERNING IDENTIFICATION AND FAILURE TO CORRECT AN IMPROPERLY WORDED STIPULATION, AND THE ERRONEOUS INSTRUCTION TO DISREGARD DEFENSE COUNSEL'S SUMMATION COMMENTS ABOUT THE ACCUSER'S FAILURE TO IDENTIFY THE DEFENDANT AT TRIAL IN A CASE WHERE THE SOLE EVIDENCE AGAINST THE DEFENDANT WAS EYEWITNESS TESTIMONY, INDIVIDUALLY AND COLLECTIVELY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9 AND 10). (PARTIALLY RAISED BELOW).

A. The Trial Court Provided the Jury with Improper Instructions to Consider Police Testimony That Could Be Used for the Improper Purpose of Bolstering the Accuser's Testimony and Incorrectly Informed the Jury That They Could Consider a Non-Existent In-Court Identification.

B. The Trial Court Failed To Correct a Stipulation That Could Leave The Jury With the Erroneous Impression That the Defendant Conceded He was Present During the Commission of the Crime (not raised below).

C. The Trial Court Improperly Instructed the Jury to Disregard Defense Counsel's Argument That the Accuser was Unable to Make an In-Court Identification (raised below).

D. Even If Each Individual Error Does Not Require Reversal, The Aggregate Of The Errors Denied The Defendant Due Process And A Fair Trial (not raised below).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

None of these arguments persuade us that reversal of defendant's conviction is warranted. Trial courts are charged with molding jury instructions to meet the facts of the case. Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)) (The charge must constitute "a road map that explains the applicable legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.'"); see also Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002) (holding that, where necessary for the jury's understanding, the trial court must tailor the charge to the theories of the parties to enable review of the evidence in that context).

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981) (citing Grabriel v. Auf Der Heide-Aragona, Inc., 14 N.J. Super. 558, 563-64 (App. Div. 1951)). The trial judge has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004) (citing State v. Thompson, 59 N.J. 396, 411 (1971)); see also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring a reversal").

Indeed, "failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds, supra, 172 N.J. at 289 (citing State v. Velazquez, 163 N.J. 677, 688 (2000)); see also State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997) (citing State v. Hogan, 297 N.J. Super. 7, 21 (App. Div. 1997)) (noting that "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error"), certif. denied, 153 N.J. 49 (1998). Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).

Here, the record of the charge conference clearly shows that defense counsel agreed and consented to the trial court's jury instructions concerning Kablis's equivocal in-court testimony as to whether defendant was the same person she identified as her assailant on October 7, 2009. The trial court's instructions in this respect clearly indicated what the jury needed to do to reach a verdict on this issue:

The State has presented the testimony of Ms. Kablis [t]hat on a prior occasion before this trial the witness identified the defendant as the person who committed this offense. According to the witness her identification of . . . defendant was based upon the observations and perceptions that she made of the perpetrator at the time the offense was being committed. Moreover, the State presented the testimony of officers Williams-Ficarra and Racine who identified . . . defendant as the person they stopped and detained based upon Ms. Kablis's description. In addition, they testified that she described [defendant] as the person who attempted to rob her.

It is your function to determine whether the witness's identification of . . . defendant is reliable and believable or whether it is based on a mistake or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged. You should consider the observations and perceptions on which the identification was based and the circumstances under which the identification was made. Although nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications even if made in good faith may be mistaken. Therefore, when analyzing such testimony be advised that a witness's level of confidence alone may not be an indication of the reliability of the identification.

. . . .

In evaluating the identifications . . . you should consider the observations and perceptions on which these identifications were based on the witness's ability to make these observations and perceptions. If you determine that the out-of-court identification is not reliable you may still consider the witness[e]s['][4] in-court identification of . . . defendant if you find it to be reliable. Unless the in-court identification resulted from the witness[e]s['] observations and perceptions of the perpetrator during the commission of the offense, rather than being the product of an impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate issue of the . . . trustworthiness of both the in-court and out-of-court identifications are ultimately for you to decide.

We are satisfied that the trial court's jury instructions properly guided the jury on how to address and harmonize the victim's identification of a man who was possibly fifty pounds lighter at the time he committed this offense. The officers' testimony was not used as a means of bolstering or vouching for Kablis's credibility; their testimony merely clarified that defendant was the individual identified by Kablis as the perpetrator on the night of the robbery. The officers did not profess to having witnessed the crime or to knowing conclusively that defendant was in fact the assailant.

The evidence shows that the police located a suspect based on Kablis's description. When presented to Kablis, the suspect was not restrained in any way. The victim immediately identified defendant as her assailant before her police escort uttered a word. She made her identification at the time the incident was most fresh in her mind. This was the crux of the State's case. The officers in no way identified defendant as the perpetrator. They only identified defendant as the man Kablis identified as her assailant.

We are more troubled, however, by the clearly improper stipulation that the trial court read to the jury in lieu of presenting the live testimony of the person the victim was talking to on the phone at the time of the robbery. Even more disconcerting to us is the fact that the error came to light by the jury's question during deliberations. It was only then that the trial court and counsel were able to appreciate the magnitude of the prejudice to defendant if this error had not been discovered and corrected.

These are the facts on this issue. While deliberating, the jury sent a note to the trial judge asking whether the words in the stipulation "that Jennifer Stroka was the friend who Kristin Kablis was speaking to on her cellular telephone when the defendant approached her" was "an admission that defendant was present at the time of the incident." Before responding, the trial judge consulted with counsel. See State v. Gray, 67 N.J. 144, 149 (1975). Defense counsel suggested the trial judge respond by stating that "the defense strongly denies that [defendant] was the person who approached." Instead, the trial judge told the jury that these words were "not an admission and the defendant has pleaded not guilty to the charge." Defendant contends that this answer was "inadequate and confusing" in that it left the jury with an "erroneous impression that the attorneys for the parties were conceding that . . . defendant was present during the commission of the crime."

"It is firmly established that '[w]hen a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)) (alteration in original). Furthermore, "the trial court must respond substantively to questions asked by the jury during deliberations and must assure itself that it understands the import of the questions." State v. Middleton, 299 N.J. Super. 22, 30 (App. Div. 1997) (citing State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995)).

Here, defendant's argument in this regard is without merit. Defendant did not object to the trial court's alternative instructions. Thus, as a matter of law, the issue is deemed waived on appeal unless defendant can show plain error. See R. 1:7-2; R. 2:10-2. Here, the trial court consulted with defense counsel in fashioning a response to the jury's request for clarification. While defense counsel initially suggested a more strongly-worded response, he ultimately agreed to the trial court's language, which he deemed to be "very fair."

The trial judge's response sufficiently clarified the issue by unequivocally instructing the jurors that this poorly phrased statement was not an admission.

Having said this, we must emphasize that it would have been preferable if both the parties and the trial court had scrutinized the language in the stipulation more carefully to prevent this obviously avoidable error. Given the trial court's curative instructions, however, the error was not "clearly capable of producing an unjust result." R. 2:10-2.

The remainder of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's sentence was clearly within the range provided by the Code and within the trial court's discretionary authority. See State v. Roth, 95 N.J. 334, 365 (1984). Indeed, the trial court denied the State's motion to impose a discretionary extended sentence pursuant to N.J.S.A. 2C:44-3(a).

Affirmed.

1 During direct examination, the prosecutor utilized three photographs depicting the area Kablis identified as the exit point she used to leave the pub. These photographs were admitted into evidence without objection and published to the jury by projecting them onto a screen in the courtroom. Despite this, the photographs were not included as part of the appellate record. Rule 2:6-1(a)(1)(I) requires appellant to include in the appendix "such other parts of the record . . . as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised." We note that, in the civil context, the failure to provide the appellate court with evidence that may be essential to the proper consideration of the issues "hinders our appellate review." Johnson v. Schragger, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001). Here, although the failure to include these photographs as part of the appellate record did not "hinder" our review of the evidence, it did make it more difficult to conceptualize Kablis's testimony.

2 Although clearly a jury question, we note that Kablis and Hendry did not agree as to the circumstances that led to police intervention. Kablis testified that Hendry was with her when she flagged down the police officer. Hendry, on the other hand, testified that he had gone inside to tell the bartender what had occurred. When he returned outside, the Somerville Police were already there.

3 On direct examination, Kablis described the man as "about six foot two, six foot three, black male with a gray skully [sic] hat on, with a gray kind of zipper up hoody type sweatshirt, baggie jeans." He walked away from her, heading eastbound. She had never seen this man before this incident.

4 During the charge conference, the prosecutor pointed out to the trial judge that Kablis did not identify defendant in court. In response, the trial judge noted that the language was amended to reflect that there were three witnesses: "the alleged victim who identified [defendant] out-of-court but was incapable of doing it in court, and the police officers who were both there at the scene and were capable of identifying the defendant in court."