STATE OF NEW JERSEY v. GARRET W. MATTOX

NOT FOR PUBLICATION WITHOUT THE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.

GARRET W. MATTOX, a/k/a DEREK

PEOPLES,

Defendant-Appellant.

_______________________________________________

December 26, 2014

Argued October 6, 2014 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-12-1206.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

Deborah Cronin Bartolomey, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Garret W. Mattox was convicted of one count of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Defendant was sentenced to a term of twenty years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant challenges the court's jury instructions, certain trial testimony, and claims his sentence was excessive. After a thorough review of the record and consideration of defendant's arguments in light of applicable legal principles, we affirm his conviction and sentence.

I.

After an evening of drinking at the Richmond Beer Garden (RBG) in Plainfield on January 13, 2010, a man named Guevera left to call a taxi. While Guevera was outside, defendant approached him, put his arm around him, and struck him. When Guevera fell to the ground, defendant began to kick his face, eventually rendering him unconscious. During the assault, Guevera dropped a wallet he was holding and defendant dropped a black eyeglass case. Defendant picked up the wallet and the case before he fled the scene.

The police were called and Officer Lawanna Burks responded. Burks found Guevera still unconscious and bleeding from the nose and mouth. Emergency medical technicians responded, and Guevera was taken to the hospital. She searched the area around RBG, to no avail. Burks then spoke with the owner of RBG and learned it had a video surveillance system. Burks obtained a copy of a video made earlier that evening and observed the assault of Guevera. From viewing the video, Burks could tell that the assailant was a bald, African American wearing a green and black fatigue jacket, black shirt, blue jeans, and black boots.

Approximately three hours later, Burks received information, which prompted her to respond to a location two blocks from the RBG. There, she recognized defendant as the assailant she had observed earlier on the video. After arresting defendant, Burks searched him and recovered Guevera's wallet and the eyeglass case. Burks also observed blood on defendant's boot, which was later confirmed to be Guevera's through a DNA match.

During the trial, the surveillance video was played for the jury and Burks referred to the assailant in the video as defendant. Guevera also testified, but had no recollection of the events and could not identify defendant as his assailant.

On appeal, defendant raises the following points:1

Point i

The court's failure to instruct the jury that the state had to prove identification beyond a reasonable doubt denied defendant his constitutional rights to due process and a fair trial. U.S. Const. amends. v, vi, and xiv; n.j. const. (1947), art. I, 1, 9, 10. (partially raised below)2

a. failure to provide a jury instruction on identification was plain error requiring reversal and remand for a new trial.

b. that burks is law enforcement does not obviate the need to provide a jury instruction on identification and failure to do so was plain error requiring reversal and remand for a new trial.

Point ii

Mr. mattox's sixth amendment right to confront the witnesses against him was violated by burks's testimony that she went to 200 court place "based upon information received." (Not raised below)

Point iii

Burks's testimony identifying mr. mattox as the assailant invaded the province of the jury and usurped the jury's role of determining the identity of the perpetrator beyond a reasonable doubt in violation of N.J.R.E.701 and mr. mattox'S rights to due to process and a fair trial. (not raised below)

Point iv

The trial was so infected with error that even if each individual error does not require reversal, the aggregate of the errors denied mr. mattox a fair trial. (not raised below)

Point v

Mr. mattox's sentence is excessive, unduly punitive, and must be reduced.

II.

A.

When Officer Burks testified at trial, she described the assailant on the video as "a bald-headed Black male, later identified as Mr. Garret Mattox." In response to follow-up questions from the prosecutor, Burks testified that she saw Mr. Mattox in the courtroom, and identified him as "the gentleman with the white shirt and red tie." Defendant now argues that this description required the trial court to charge the jury as to eyewitness identification and, even though the charge was not requested at trial, the court's failure to give it violated defendant's constitutional rights.

As defendant failed to request an identification charge during trial, we employ a plain-error standard. We must determine whether the trial court's failure to sua sponte charge eyewitness identification was error and, if so, whether that error was "clearly capable of producing an unjust result." R. 2:10-2. See also R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007) ("[T]he failure to object to a jury instruction requires review under the plain error standard.").

A claim of plain error in a jury instruction requires a demonstration of legal impropriety in the charge that prejudicially affects the substantial rights of the defendant. State v. Singleton, 211 N.J. 157, 182-83 (2012). The error must also be "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Ibid.

In State v. Walker, the Court addressed the standard to be employed when reviewing a trial court's failure to instruct the jury in the absence of a request to charge from counsel. 203 N.J. 73, 86-7 (2010), The Court held that a requested jury instruction should be given if "there is a rational basis in the record to give it." Id. at 89. However, if counsel does not request the instruction, the court should give the charge only when the evidence clearly indicates that it is appropriate. Ibid.

Although he failed to raise this issue at trial, defendant now claims that misidentification was a fundamental issue in this case and he was entitled to a charge on eyewitness identification. However, no eyewitness to the assault testified at trial and Burks referenced the video only to explain why she arrested defendant. She did not purport to identify him to the jury as Guevera's assailant. The jury was well aware that Burks was not an eyewitness to the crime. Consequently, Burks's description of the assailant appearing on the same video being viewed by the jury, as well as her in-court identification of defendant, was at most superfluous and not unduly prejudicial.

We addressed a similar factual scenario in State v. Salaam, 225 N.J. Super. 66 (App. Div.), certif. denied, 111 N.J. 609 (1988). In Salaam, the defendant, armed with what appeared to be a pistol, entered a store and directed the cashier to give him the money in the register. Id. at 67-68. Because the register did not contain any bills over ten dollars, the cashier gave the defendant "several ten and five dollar bills and a large number of singles," amounting to less than seventy-five dollars. Id. at 68. The cashier "described the suspect as wearing a dark jacket and dark cap with a small brim." Ibid.

Officers later "observed a man with a mustache wearing a dark blue sweatshirt and black cap." Ibid. After a pat down, the officers found a toy cap gun and sixty-two dollars, with no bills over ten dollars. Ibid. A jury convicted the defendant of armed robbery. Id. at 67.

The defendant appealed, arguing that the trial court erred in failing to charge the jury on identification. Id. at 69. In determining that the failure to include the charge was not error, we noted the existence of highly corroborative evidence, which made the identification issue immaterial. Id. at 70. We noted that the defendant was found in close proximity to the scene of the crime, carried a toy pistol, and carried sixty-two dollars in cash with no bills over ten dollars. Id. at 68, 70. This circumstantial evidence, coupled with the fact that the defendant's physical characteristics matched the cashier's description, "greatly reduced the chance that defendant's conviction was the product of mistaken identity." Id. at 70.

Similarly, there is compelling evidence linking defendant to the robbery and assault of Guevera, which lessens the chance that defendant's conviction was the result of mistaken identity. When Officer Burks located defendant, he was with a woman also seen on the surveillance video; defendant was carrying Guevera's wallet and photo ID; and he was wearing the same type of clothing seen in the surveillance video, with Guevera's blood on his right boot.

Given the lack of eyewitness testimony and the abundance of compelling circumstantial evidence, the failure of the trial court to sua sponte give the jury an eyewitness charge was not error, let alone plain error.

B.

Defendant next argues that Officer Burks's testimony violated his rights to due process and to confront witnesses when she said, "Based upon information received, I responded to the 200 block of Court Place." Defendant suggests that the implication of this testimony is that there was a non-testifying witness who told Burks that the perpetrator of the crime at the RBG could be found at the location to which Burks responded. We disagree.

Neither the hearsay rule nor the Sixth Amendment is violated if an officer explains that he or she went to the scene of the crime "upon information received." State v. Bankston, 63 N.J. 263, 268-69 (1973). This testimony is admissible to show that the officer was not acting arbitrarily. Id. at 268. If, however, the officer repeats what another person said concerning a crime of the accused, then that testimony violates the hearsay rule and the defendant's Sixth Amendment rights. Id. at 268-69. The principle behind Bankston is that inculpatory information supplied by a non-testifying witness violates a defendant's constitutional rights. State v. Taylor, 350 N.J. Super. 20, 33 (App. Div.), certif. denied, 174 N.J. 190 (2002).

In this case, Officer Burks never divulged any detail about the information she received, let alone inculpatory evidence

Q. The police was [sic] contacted about the location of possible suspects; correct?

A. I can't answer that. I can only answer to the fact that on information received, I responded, which came from dispatch.

Q. You don't know where that information came from?

A. Dispatch. I can't say how it came into [sic] them.

Q. You don't know how dispatch got the information?

A. No, I do not.

Officer Burks's testimony complied with the Bankston protocol. Her testimony was limited to the fact that she went to 200 Court Place "upon information received," which is entirely permissible to show that her actions were not arbitrary. Furthermore, she did not provide any inculpatory information linking defendant to the crime. Indeed, she testified that she did not even know how dispatch obtained that information. Defendant suffered no violation of his constitutional rights as a result of this testimony.

C.

Defendant next argues that Officer Burks improperly offered her opinion that the assailant depicted on the surveillance footage was defendant. We disagree.

A non-expert witness may testify in the form of an opinion if it "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. To determine whether a law enforcement official can offer lay opinion testimony on identification, we generally look at whether there are other available witnesses to identify the defendant. State v. Lazo, 209 N.J. 9, 23 (2012). An officer may not, however, use opinion testimony to bolster the credibility of an eyewitness. Id. at 24 (citing State v. Frisby, 174 N.J. 583, 593-96 (2002)).

Officer Burks never offered her opinion on whether the assailant depicted on the surveillance video resembled defendant. When asked to describe what she saw on the tape, Officer Burks responded, "I saw a bald-headed Black male, later identified as Mr. Garret Mattox." She then described the rest of her investigation, explaining that she located a black male around 200 Court Place wearing the same clothing captured on video, wearing a blood-stained boot, and possessing Guevera's wallet.

This case is distinguishable from Lazo, where a detective opined that the defendant's arrest photo closely resembled a composite sketch of the assailant. Lazo, supra, 209 N.J. at 24. The detective based his opinion entirely from the victim's description, and his opinion served only to bolster the credibility of the victim's eyewitness account; thus it was inadmissible under N.J.R.E. 701. Ibid.

Here, Officer Burks could not bolster the credibility of any eyewitnesses because there were none. Furthermore, Officer Burks never opined that the man on the surveillance tape looked like defendant.

D.

Defendant next urges that the multitude of errors during trial warrant a new trial.

If "legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). Incidental errors that do not prejudice the rights of a defendant, however, cannot be invoked to reverse a valid conviction. Ibid. After all, "[a] defendant is entitled to a fair trial but not a perfect one." State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)).

In State v. Sterling, 215 N.J. 65, 101-02 (2013), the Supreme Court held that a joinder error in a criminal trial was harmless given the existence of DNA evidence linking the defendant to the crime and the victim's strong identification of the defendant. The Court explained that any prejudice suffered from the joinder error "was overwhelmed by the strong, independent evidence of [the defendant's] guilt." Id. at 104.

Likewise, there is strong, independent evidence of defendant's guilt in the present case. Defendant's clothing matched the assailant's clothing as seen on the video, defendant possessed Guevera's wallet at the time of his arrest, and the blood on defendant's boot was later confirmed to be Guevera's after a DNA analysis. The case against defendant is arguably stronger than it was against the defendant in Sterling. As the trial judge remarked

This is one of the strongest cases that I've in my [forty] years seen tried. As we look at the screen right there, we see a picture of an individual who has a wallet to his chest. The person who has been circumstantially identified as the defendant, based upon the clothing that he was found with thereafter, based upon blood on his boots, based upon him being in possession of an item that was taken from the victim, based upon all of those issues . . . a reasonable jury could certainly find the defendant guilty of first degree robbery and second degree aggravated assault.

We are satisfied that there was no error in this case sufficient to warrant reversal of defendant's conviction.

Finally, defendant argues that his sentence is excessive and that it was improper for the judge to consider the aggravating factors set forth in N.J.S.A.2C:44-1(a)(1) (the nature and circumstances of the offense) and N.J.S.A.2C:44-1(a)(2) (the gravity and seriousness of the harm inflicted on the victim). Defendant claims the judge double-counted those factors because they were already included in the definition of first-degree robbery, which provides that during the commission of a theft, the actor "purposely inflicts or attempts to inflict serious bodily injury." N.J.S.A.2C:15-1(b).

Defendant's robbery conviction was a first-degree crime with a range of imprisonment between ten and twenty years. N.J.S.A.2C:43-6(a)(1). His aggravated assault conviction was a second-degree crime with a range of imprisonment between five and ten years. N.J.S.A.2C:43-6(a)(2). "In determining the appropriate sentence to impose within the range, judges first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A.2C:44-1(a) and (b) that apply to the case." State v. Case, ____ N.J.____, ____(2014) (slip op. at 25) (citing State v. Fuentes, 217 N.J.57, 72 (2014)).

When calculating the length of a sentence, "factors invoked by the Legislature to establish the degree of the crime should not be double counted." State v. Miller, 108 N.J. 112, 122 (1987). If elements of a crime could be considered as aggravating factors, it would erode "the basis for the gradation of offenses and the distinction between elements and aggravating circumstances." State v. Kromphold, 162 N.J. 345, 353 (2000).

Contrary to defendant's claim, the judge did not double-count the aggravating factors. In fact, the judge acknowledged that the factors are part of the elements of first-degree robbery and concluded that the sentence is justified without considering those two factors

I am hesitating between putting too much weight . . . on the nature and circumstances of the offense . . . and the gravity to the harm because . . . I also think that it's built into the fact that this went from a second-degree to a first-degree and a serious bodily injury. But I would be remiss if I didn't talk about something of the attack; so I consider it, but I don't give it a great deal . . . of weight. I think the maximum sentence under the code is justified without even considering those issues.

Instead, the judge took into consideration defendant's lengthy criminal history, which included nine prior indictable convictions, five parole violations, two violations of probation, and ten disorderly persons convictions.

We are satisfied that the court engaged in a "qualitative analysis of the sentencing factors," as mandated by State v. Kruse, 105 N.J. 354, 363 (1987), and recently reaffirmed by Case, supra, slip op. at 33, when the judge concluded that the aggravating factors substantially outweighed the nonexistent mitigating factors. Defendant's sentence is not excessive.

Affirmed.

1 We reject the State's request to ignore the issues that defendant did not raise in the trial court. Under Rule 2:10-2, this court may grant relief on appeal "in the interests of justice" based upon plain errors or omissions that were "clearly capable of producing an unjust result," even though such errors or omissions were not brought to the attention of the court below. See, e.g. State v. Macon, 57 N.J. 325, 337-41 (1971) (delineating the genesis and purposes of this rule); State v. Maloney, 216 N.J. 91, 104 (2013) (reaffirming and applying the rule).

2 Defendant indicates that this point was "partially raised below," because the trial court announced its intention to charge the jury on identification. We find nothing in the record to indicate that the judge intended to give an identification charge.