STATE OF NEW JERSEY v. PATRICK A. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK A. WILLIAMS a/k/a

PATRICK A. WILLIAMS, JR.,

Defendant-Appellant.

ArguedApril 29, 2014 Decided June 26, 2014

 

Before Judges Reisner, Alvarez and Higbee.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-0625.

 

Susan Brody, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief).

 

Jason M. Boudwin, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Brian D. Gillet, Deputy First Assistant Prosecutor/Special Deputy Attorney General, of counsel and on the briefs).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Tried by a jury, defendant Patrick Williams was convicted of second-degree attempted kidnapping, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1(b), as well as the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3, a lesser-included of the indicted charge, third-degree criminal restraint, N.J.S.A. 2C:13-2. On May 9, 2011, he was sentenced to a term of eight years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant appeals, and we affirm.

We describe the facts established during the trial. Having been previously terminated from his employment at a cable company, defendant met sometime in early January 2010 with the company's owner requesting that he be reinstated. According to the owner, defendant appeared to be "irritated" and "very disappointed" when he learned he would not be rehired.

On February 25, 2010, as the owner's sister was leaving the company's business office in the afternoon, she was grabbed from behind by someone telling her to be quiet. The assailant, whom she later described as a black male, approximately six-feet, two-inches in height, wearing a red and black bandanna over his face, a jacket, and a hoodie, pushed her out of the building door and up the steps leading to the adjoining parking lot. The victim, screaming all the while, slipped out of her unbuttoned jacket and ran back into the building, where co-workers had already called 911 after hearing the commotion. Before she went inside, the victim glanced back and saw the assailant leaning against her car before walking away.

Metuchen Police Department Patrolman Kevin Doherty was the first to respond to the call, and he immediately obtained a description of the suspect's vehicle, a dark SUV, from others at the scene. On his report, Doherty marked off the preprinted area regarding "mask worn/face hidden," however, he did not circle the box indicating that the perpetrator wore gloves. He testified that he usually inquired whether an assailant wore them. Doherty destroyed his notes after completing his report, as was his practice.

Two eyewitnesses both said they saw a black SUV leaving the parking lot at the relevant time. Both heard screams before observing the vehicle.

Detective Robert Belluscio arrived within minutes. He too took notes regarding his investigation, which he later destroyed. Belluscio claimed he did not obtain witness statements because it was against departmental policy. He merely incorporated the information witnesses conveyed into his written reports.

Belluscio found and photographed two fresh shoe prints bearing a star shaped tread design in the "small amount of snow" in the parking lot. Belluscio testified that perhaps a quarter of an inch of snow had accumulated, although there were periods of snow and icy rain throughout the day.

When Belluscio met with the victim, he asked if anyone had left the company recently in less than favorable circumstances. The victim, who said it was common knowledge that she was the owner's sister, identified defendant and an individual named Gaston Diaz as having been recently terminated. She pulled up photographs of the men on her computer, and when she saw defendant's picture, she immediately identified his eyes as belonging to her attacker. She did not recognize Diaz as having been involved. The victim claimed that she told the officers the assailant's eyes were almond-shaped even before she looked at the employee pictures. The officers only recalled that she immediately identified the perpetrator by his eyes.

Belluscio obtained a surveillance video from a business located across the street from the cable company. Within the relevant timeframe, a black SUV with a chrome grille on the front, tinted windows, and a small four-to-five-inch antenna directly above the driver's side, was recorded leaving the lot. The video was time-stamped 2:51 p.m. After viewing the footage, Belluscio learned that defendant owned a 2008 black Denali. Diaz had no black SUV-type vehicle registered in New Jersey.

A few days after the incident, Belluscio, accompanied by other officers, went to defendant's residence in Neptune. He saw a vehicle parked in front, identical to the one depicted on the video and as described by the eyewitnesses. Defendant agreed to go with the officers to police headquarters, where he was administered Miranda1 warnings and gave his first taped statement.

Defendant agreed that in the week at issue he had twice driven as far as Edison while trying to connect with a friend, Lucretia Stokes. He denied knowing the reason he had been brought to the police station for questioning. After being told that eyewitnesses had seen him in the cable company's parking lot, he initially insisted he did not remember being there nor had he any reason to park there.

Defendant added that if he did park there, it was probably because it was snowing that day, and the tires on his vehicle were in poor condition and his truck needed an alignment. Once informed of the incident, he vehemently denied any participation. He said on the day in question he had pulled over several times but never left the truck.

Defendant claimed he would not grab a woman or be involved in any other inappropriate behavior at the cable company because he hoped to return to work there, and that no animosity existed between him and the owner. When Belluscio asked to see defendant's shoes, defendant acknowledged parking in the cable company lot. He admitted leaving his vehicle, but only to use the bathroom located in the building.

Defendant signed a written consent for the authorities to search his residence and truck, and identified the items of clothing he had worn on the day in question. Police removed a black jacket and pair of khaki pants from defendant's home; they also seized a set of metal handcuffs and several latex rubber gloves from defendant's car. The victim positively identified defendant's jacket but no other item taken from his home.

In his second Mirandized statement, defendant claimed that he had made several stops because of the inclement weather, finally pulling into his former employer's parking lot. He said he sat in his truck briefly while listening to music, went inside the building, and used the bathroom. He let his truck warm up a little before he drove away.

During this interview, Belluscio told defendant that his tires appeared to be in perfect condition. Defendant responded that one of the tires had a nail in it and that the truck needed an oil change as well as an alignment. He continued to deny any involvement in the attack.

Defendant explained the handcuffs found in the truck were "love cuffs" which he had earlier acquired to employ in sexual relations with his wife. Belluscio later interviewed defendant's wife, who confirmed that defendant had attempted to use the cuffs during sex. Belluscio also testified that the cuffs had a self-release latch, which meant that a user could readily remove them.

In that second interview defendant reiterated that he drove that day because he was hoping to spend time with Stokes. Stokes initially denied having spoken to defendant or even seen him for months, eventually admitting that he had called her on February 23 to ask if she was interested in joining him for breakfast. He knew the general location of her apartment complex, but she had not given him her address.

Although his statement was somewhat unclear, defendant said that he had tried to meet with Stokes that day, abandoned the idea, and considered going to New York City instead. The weather was bad as he drove through Stokes's neighborhood, so he decided to either drive on to New York City or return home.

At the close of all the testimony, the State requested the trial judge give the jury an instruction as to in- and out-of-court identifications. Defendant only requested an instruction with regard to in-court identifications, contending that no identifications were made outside the courtroom. The judge modified the out-of-court identification, adding that the victim "identified [] defendant by certain characteristics."

Jury deliberations commenced at 2:15 p.m. on March 29, 2011. Towards the end of the court day, the judge asked jurors if they preferred to stay late to conclude deliberations, or to continue the next day. The jurors chose to come back the next day, however, one juror sent a note stating that he could not return. The note was not read into the record nor admitted as an exhibit. The judge told the parties that he would excuse the juror, select one of the two alternates, and read the model charge to the panel regarding beginning deliberations anew. Defense counsel requested that the judge, before excusing the juror, ask him about the reason he could not continue. The judge only confirmed with the juror that he could not return the following day.

The following morning, one of the alternates was selected at random, and the trial judge reinstructed the jurors pursuant to the model charge.2 The judge also told the jurors that they must not give weight to any opinions expressed by the excused juror.

Later that morning, the jurors requested written definitions of the four charges, i.e., the offenses and the lesser-included as to each. Additionally, the judge interpreted the note to mean that the jury wanted to be given the statutory definition of certain terms within the statutory definitions of the charges. The judge promised counsel he would consult with them before reading the additional material. When the jury was brought in, however, without further consultation on the record, the judge read the definitions, including the terms "bodily injury, serious bodily injury, terrorize, purposely, knowingly, and attempt." After further deliberations, the jury rendered its guilty verdict.

At sentencing, the judge concluded that the aggravating factors outweighed the mitigating, finding aggravating factors one, two, three, six, and nine. N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), (9). The judge did find mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that incarceration would impose a hardship on defendant's children.

On appeal, defendant's counseled brief raises the following issues for our consideration:

POINT I

IN A CASE IN WHICH IDENTIFICATION WAS THE SOLE ISSUE, AND THE PROCEDURE USED BY POLICE WAS SO MANIFESTLY SUGGESTIVE, DEFENSE COUNSEL'S FAILURE TO REQUEST A PRETRIAL WADE[3] HEARING CONSTITUTED INEFFECTIVE ASSISTANCE, REQUIRING REVERSAL.

 

POINT II

THE DETECTIVE'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF STATE V. DELGADO DURING THE IDENTIFICATION PROCEDURE REQUIRES REVERSAL. (Not Raised Below).

 

POINT III

THE COURT'S DECISION TO RECONSTITUTE THE JURY DURING DELIBERATIONS WITHOUT MAKING A SINGLE INQUIRY OF THE JUROR WHO SAID HE COULD NOT RETURN THE NEXT DAY VIOLATED DEFENDANT'S CONSTITUTIONAL AND STATUTORY TRIAL RIGHTS. (Partially Raised Below).

 

POINT IV

BECAUSE THE RECHARGE PROVIDED BY THE COURT IMMEDIATELY BEFORE THE JURY RETURNED ITS VERDICT WAS SO DISJOINTED AS TO BE ALMOST INCOMPREHENSIBLE, DEFENDANT'S RESULTING CONVICTIONS MUST BE REVERSED. (Partially Raised Below).

 

POINT V

THE EIGHT-YEAR NERA TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

In a pro se submission, defendant raises these points:

POINT I

DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMEND. OF THE U.S. CONST. AND N.J. CONST. ART. 1, PAR. 1 WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE AN ADVERSE INFERENCE CHARGE BASED ON THE POLICE FAILING TO PRESERVE THEIR NOTES. (Not Raised Below).

 

POINT II

ADMISSION OF AN EXTRAORDINARY AMOUNT OF INADMISSIBLE AND UNDULY PREJUDICIAL EVIDENCE AND INFORMATION DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

 

POINT III

TRIAL COURT ERRED IN NOT SUPPRESSING DEFENDANT'S STATEMENT MADE AS A RESULT OF AN ILLEGAL ARREST.

 

I.

With regard to defendant's ineffective assistance of counsel argument, we generally do not consider such claims on appeal because they "involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). We therefore decline to now address defendant's argument that counsel was ineffective for his failure to request a Wade hearing.

II.

Defendant's second point, that the testifying officer failed to comply with the identification procedures set forth in State v. Delgado, 188 N.J. 48 (2006), is correct. But it does not warrant reversal under the plain error rule. Rule 2:10-2 states that "[a]ny error or omission shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Any possibility of an unjust error will not suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

In Delgado, the Court mandated that as a condition to the admissibility of an out-of-court identification, "law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Delgado, supra, 188 N.J. at 63. The Court viewed preservation of the process to be as important as preservation of the actual photographic array or the taking of a photograph "of a live line-up." Ibid. The Court also stated that when recordkeeping was "not feasible, a detailed summary of the identification should be prepared" in the alternative. Ibid.

The identification procedure in this case was somewhat novel. The interview took place outside the police station. The photographs of the suspects were in the sole possession of the victim, not of law enforcement. The police asked the victim if anyone had been terminated from employment under unfavorable terms, and if so, who they were and whether she had photographs available. It was the victim, not the police, who called up the photographs of the two men, who at the time were not even suspects, on a computer. Upon seeing her co-workers' photographs, the victim immediately recognized defendant as the perpetrator from his eyes, although there is a difference in recollection with regard to the details of her statement. She said at trial that she told the officers she could identify defendant because his eyes were "almond shaped," and while the officers remembered her identifying defendant's eyes as belonging to the perpetrator, they did not recall her using that phrase.

Thus Belluscio's failure to prepare a summary of the identification process or even keep his notes after writing his report ultimately did not cast doubt on the propriety of the process because of its unique nature. Furthermore, defendant does not identify any prejudice resulting from the officer's failure to at least create a summary of the procedure.

From our review of the record, this out-of-court identification by its very nature could not have been "impermissibly suggestive," and that is the ultimate question on the point whether the procedure was impermissibly suggestive, and if so, whether the identification was nonetheless reliable. See State v. Herrera, 187 N.J. 493, 503-04 (2006).

Even impermissibly suggestive identifications, which this was not, may be admitted if reliable. Ibid. Under these circumstances, where the selection of defendant's photograph was entirely under the victim's control, nothing hints at a "substantial likelihood of irreparable misidentification." See State v. Adams, 194 N.J. 186, 204 (2008). Thus failure to comply with the dictates of Delgado does not warrant reversal.

III.

As to defendant's third point, which we review as plain error, our rules provide that jurors may be replaced only when absolutely necessary. An instruction must follow informing the jury of their obligation to commence deliberations anew. R. 1:8-2(d)(1). Juror substitutions should be made sparingly. See State v. Hightower, 146 N.J. 239, 254 (1996); State v. Valenzuela, 136 N.J. 458, 468 (1994). Although it is generally acknowledged that "juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process," State v. Jenkins, 182 N.J. 112, 126 (2004) (internal citations omitted), clearly, in the real world, such substitutions are necessary at times.

We disapprove of the judge's failure in this case to make a specific on-the-record inquiry of the juror as to his or her reason for being unable to appear the following day. It would have taken moments to have asked the juror some open-ended questions, in the presence of counsel and on the record, regarding his reasons for wishing to be excused.

In this case, however, that failure was not constitutionally defective. The jury had been deliberating for a short time. When the judge explained the steps he intended to take, neither counsel objected to the procedure followed. Once the deliberating jury was reconstituted, their first request was for written instructions, signaling that the deliberations had commenced anew and that the panel wished to start over with a fresh understanding of the relevant definitions before considering the proofs. Thus the unexplained substitution did not come at a critical time such that it may have made the jury's verdict null and void.

In State v. Williams, 171 N.J. 151, 159 (2002), for example, a juror was substituted because of financial hardship. The Court found the juror's reason warranted dismissal from service. Id. at 167. In Williams, the jurors had been deliberating for three hours, and paused to request a read-back of certain evidence towards the end of the day. Id. at 159. It was only after the read-back, at the end of the day, that the excused juror raised the issue of his financial hardship and inability to continue. Ibid. The Court agreed that the judge should have more fully explored the juror's inability to continue to serve. Id. at 168. Because the substitution did not come at a critical time, and the judge properly instructed the reconstituted jury the following day, however, the verdict withstood the appeal. Id. at 169, 170. Like in Williams, these jury deliberations had just begun. A new juror would have had the opportunity to participate in the deliberative process. Counsel did not object to the substitution. Therefore, it was not plain error.

IV.

Defendant next contends that the court's recharge was so disjointed as to be "almost incomprehensible." We disagree.

"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)). "Further, if the jury's question is ambiguous, the trial court must clarify the jury's inquiry by ascertaining the meaning of its request." Ibid. A trial court's failure to inquire further into a note from the jury, and to respond, could constitute error and require a reversal under some circumstances. Id. at 395.

In this case, the jury's note stated "Judge, can you please provide [] written documents, which describe[] the definition of each of the four charges? Thank you." The judge interpreted the note as meaning that the jury wanted to hear the distinction between different elements. As a result, he provided the jury with oral and written instructions explaining the different elements of the offenses. Defense counsel asked the judge to more specifically inquire so that he would know for certain what the jury was requesting, and the judge agreed. The judge mistakenly moved on, not even asking the jury panel for confirmation of his interpretation of the note, as he was afraid that in responding the jury might unwittingly reveal the stage of deliberations at which they found themselves or some other improper information. When the judge told counsel that before he gave the jury the typed definitions that he would share them with the attorneys, defense counsel agreed to the process. The judge then defined additional terms such as "bodily injury, serious bodily injury, purpose, knowledge, [] terrorize," attempt, and substantial steps.

In this situation, although obvious that a further inquiry should have been made as to the specific areas on which jurors needed additional guidance, we are satisfied that the trial court sufficiently clarified any confusion in the minds of the jurors. They were aware that they could ask the judge questions, and likely would have asked the judge additional questions were they so inclined. That the statutory elements had no particular unifying thread that would make them sound like a narrative as they were read to the jury in no way defeats the intended purpose of conveying to the panel the definitions with which they were working. The manner in which the judge read the instruction to the jurors was therefore not plain error either.

V.

Next defendant asserts that the court did not properly weigh the aggravating and mitigating factors, resulting in a manifestly excessive sentence. We do not agree. As the Supreme Court recently reaffirmed, a deferential standard should be applied in reviewing sentencing determinations, and the judgment of the reviewing court should not be substituted for the judgment of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014). The reviewing court must affirm the sentence unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

In this case, the sentencing judge found aggravating factors one, two, three, six, and nine. N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), (9). The judge found that defendant's crime was especially heinous, cruel, and depraved as he hid in a dark hallway waiting to ambush the victim, and that he had a pair of handcuffs in his truck. He found factor two because of the fear that the victim experienced as a result of the crime. He found factors three and six because of defendant's prior involvement with the system, including two petty disorderly persons offenses and domestic violence proceedings. Lastly the judge concluded that defendant's minor children would suffer hardship as a result of his incarceration, the basis for mitigating factor eleven. N.J.S.A. 2C:44-1(b)(11).

Given the greater weight the judge accorded the aggravating factors over the single mitigating factor, and the record support for his decision, we are satisfied that the sentence resulted from competent and credible evidence. The judge imposed a term within the sentencing guidelines, and only after a qualitative analysis of the relevant sentencing factors. The sentence does not shock our conscience.

VI.

In defendant's supplemental pro se brief, he asserts that his due process rights were violated by the court's failure to give an adverse inference charge based on the Metuchen Police Department's failure to preserve their notes after preparation of their reports. It is undisputed that the law prohibits law enforcement officials from destroying contemporaneous notes. See State v. W.B., 205 N.J. 588, 607-08 (2011). The discovery rules have been found to require that such notes be supplied. Id. at 608; R. 3:13-3. Because of this important obligation, upon request, a defendant is entitled to an adverse inference charge molded to the facts of the case. W.B., supra, 205 N.J. at 608-09. Here, like in W.B., however, defendant neither requested the adverse charge nor raised the issue in a timely fashion. See id. at 609.

Certainly, there was a discrepancy between the victim's claim that she immediately reported to police that defendant was the perpetrator because of his "almond shaped" eyes and the officer's testimony that they did not recall her using the phrase. The officers agreed, however, that she immediately recognized his eyes. And the other proofs the State presented constituted strong circumstantial evidence which is independently documented or otherwise not affected by the officers' failure to keep notes. Defendant's initial denial of having been present at the scene, for example, which changed upon learning that his car had been seen in the parking lot and his footprints picked up in the snow, was recorded. He was identified by the victim in other respects not just the appearance of his eyes his height, build, clothing, and race, and she reiterated that information under oath at trial. Defense counsel did not request the instruction or raise it as a new trial issue. Given the strength of the circumstantial evidence unaffected by the omission, we do not find it to have been clearly capable of producing an unjust result. State v. Dabas, 215 N.J. 114, 119 (2013).

VII.

Defendant also contends that the admission of the handcuffs found in his vehicle, and discussed in the prosecutor's closing, violated New Jersey Rule of Evidence 404(b). The rule provides that evidence "of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Certainly, relevant evidence can be excluded where "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403.

No objection was made by counsel to the admission of the handcuffs. Defendant's wife testified that he attempted to introduce them into their sexual relations. The officer also testified that the cuffs had a "self-release hatch."

It would have been preferable for the court to have addressed the admissibility of the cuffs prior to trial at a Rule 104 hearing. But counsel pointed out to the jury, despite the prosecutor's argument, that their presence in defendant's vehicle was irrelevant to the commission of any crime. Thus, the jury was presented with two alternative explanations for the cuffs in defendant's vehicle one, by the testimony of a police officer and defendant's wife, the other, by the prosecutor.

The judge in this case gave the standard model jury charge to the effect that statements by counsel were not evidence and were not to be treated as evidence.4 Additionally, the trial court is entitled to great deference with regard to admission of evidence. See, e.g., Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Under these circumstances, where no request for a hearing was made pre-trial, no objection to admission was made during trial, and the jury was presented with alternative explanations for the presence of the cuffs, we will not find the admission of the cuffs to have been harmful error.

VIII.

Defendant's final argument is that his statement should be suppressed as the product of an illegal arrest. We consider the argument to be so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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

2 The judge's instructions to the reconstituted jury track the model jury instructions, except that unlike the model instructions, the judge did not instruct the jury that the juror was excused for entirely personal reasons, and not for his views on the case or his relationship with the other jurors. See Model Jury Charge (Criminal), "Judge's Instructions When Alternate Juror Empaneled After Deliberations Have Begun" (2013).

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

4 Model Jury Charge (Criminal), "Criminal Final Charge" (2013).