STATE OF NEW JERSEY v. LAVAR T. RODGERS

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

LAVAR T. RODGERS,

Defendant-Appellant.

______________________________________

November 5, 2014

 

Submitted October 15, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-01-0005.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Lavar T. Rodgers was tried before a jury and found guilty of four counts of first-degree attempted murder and other offenses. He appeals from the judgment of conviction entered by the trial court on October 2, 2012, and challenges his convictions and the sentences imposed. We affirm.

I.

Defendant was charged under Salem County Indictment No. 12-01-0005, with first-degree kidnapping, N.J.S.A. 2C:13-1b(2) (counts one, two, three and four); third-degree criminal restraint, N.J.S.A. 2C:13-2a (counts five, six, seven and eight); first-degree attempted murder, N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3 (counts nine, ten, eleven and twelve); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b(1) (counts thirteen, fourteen, fifteen and sixteen); third-degree aggravated assault against a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (count seventeen); fourth-degree aggravated assault against a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (counts eighteen, nineteen and twenty); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts twenty-one and twenty-two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts twenty-three and twenty-four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts twenty-five and twenty-six); fourth-degree injury to animals used for law-enforcement purposes, N.J.S.A. 2C:29-3.1 (count twenty-seven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (counts twenty-eight and twenty-nine).

The trial court denied defendant's motion to dismiss the indictment in which defendant argued that the State had delayed presenting the charges to a grand jury for an unreasonable time. The court also denied defendant's motion to suppress evidence. Thereafter, defendant was tried before a jury.

At the trial, the State presented evidence which established that on the afternoon of January 26, 2011, defendant's girlfriend, R.T., was in a residence in Salem, with her friend and R.T.'s three children. Defendant was in the kitchen with his friends. Around 1:00 p.m., defendant walked out of the kitchen. According to R.T., he smelled as if he had been smoking marijuana.

Defendant told his friends and R.T.'s friend to leave and they complied. Defendant held R.T. tightly by the wrist. He said he had been "set up" and if "they" returned he would shoot them. R.T. broke free and, thereafter, defendant threated to shoot her and one of the children. Defendant held a gun to R.T.'s neck and pointed it at the child.

Defendant's friends eventually returned and tried to enter the home, but defendant said he would shoot them if they entered. R.T. laid down on the floor. Defendant sat on the floor and held a gun to her neck. R.T. used her cellphone to access Facebook. She posted a message stating that defendant had a gun, and he was holding her and the children. R.T. asked that someone call the police and included her address.

Sometime after 3:00 p.m., Officer William Robinson of the Salem City Police Department ("SPD") called the Salem County Prosecutor's Office ("SCPO"), requesting backup and permission to enter a residence in Salem. Investigator Steven Dick of the SCPO and Lieutenant Robert Eller of the SPD responded to the residence. Other officers had already arrived on the scene. Robinson heard screaming inside the home.

The Chief of the SCPD arrived and a perimeter of police was established around the front, sides and rear of the building in which the residence was located. Dick, Eller and Officer Walter Christy approached the front of the home and decided to enter. Eller banged on the front door, announced that it was the police and said someone should come to the door or "we're coming in." The officers heard a woman scream, and a man said "Don't come in. Don't come in."

Christy held the storm door back, while Eller kicked open the main door. Robinson entered the house with his police dog named Jordan. He observed a young child, a short distance away. He heard three distinct shots, but could not tell where they were coming from. He saw defendant laying on top of a woman. Robinson fired a shot from his .40 caliber semi-automatic pistol and retreated with the dog, yelling for defendant to drop the gun and come out. At some point, defendant said he had been shot in the foot.

Dick testified that shots started coming out of the house as soon as Eller kicked in the door. He recalled "return fire," which he believed came from Robinson. Dick said that shots had been fired at him and other officers. He looked into the house and saw a firearm pointed in his direction. He stepped back and fired a shot into the room, which hit the storm door and shattered.

Dick retreated to a police vehicle about twenty to thirty feet from the entrance to the house. He observed a black male step to the front door. He saw the face for a brief time, and testified at trial that it was defendant's face. The house was surrounded with police, and officers were "pretty much everywhere."

Dick had been grazed by a bullet. He sustained a wound that moved up his shoulder at an angle. The dog Jordan also had been shot, and was taken to a veterinary hospital in Pennsylvania. The dog's lungs had been punctured by a bullet. The bullet was later removed and the dog recovered.

Defendant cursed the police and refused to come out of the residence. About two hours after the shootings, a State Police Technical Emergency Admission Specialists ("TEAMS") unit arrived to relieve the officers on the scene. By 5:30 p.m., R.T. and the children had left the apartment from the rear of the adjoining residence. A hostage negotiator attempted to get the suspect to leave, but was not able to do so. Several hours later, canisters of tear gas were fired into the home. No one exited.

At about midnight, a man who identified himself as defendant called 911, and the call was forwarded to the Police Chief at the scene. Defendant spoke with the Chief, and asked why the police were in front of his home. Police dispatch traced the call to the building where defendant resided.

Around 2:00 a.m., the TEAMS unit entered the residence with another dog, gas masks, flashlights and ballistic shields. They found a .38 caliber firearm in the kitchen. They found no sign of the suspect, but in the basement observed an opening in the common wall with the adjoining residence. The officers entered the neighboring residence through the opening and found defendant hiding there, in the kitchen cabinet, under a sink, unarmed. He was taken into custody. They found a .45 caliber firearm on a closet shelf in that home.

A detective from the State Police testified that, based on his analysis, shots had been fired from the inside of the home. They had been fired from the left side of the front room outward. Some shots also were fired from the doorway "heading inward." Prior to summations, the court dismissed counts twenty-three (second-degree unlawful possession of a weapon), twenty-five (second-degree possession of a weapon for an unlawful purpose), and twenty-eight (certain persons not to possess weapons). The jury found defendant guilty of the remaining charges.

Thereafter, the court denied defendant's motion for a judgment of acquittal and a new trial. After appropriate mergers, the court sentenced defendant on counts nine, ten, eleven, and twelve to concurrent terms of fifty-five years of incarceration, each with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a consecutive seven-year term on count twenty-nine, with a five-year period of parole ineligibility.

II.

Defendant appeals and his attorney has filed a brief in which he raises the following arguments

POINT I

THE TRIAL JUDGE'S ERRORS IN ADMITTING IDENTIFICATION EVIDENCE AND IN PROVIDING AN IMPROPER CHARGE DENIED THE DEFENDANT A FAIR TRIAL AND A REVERSAL IS REQUIRED. (Not Raised Below).

POINT II

THE STATE COMMITTED REVERSIBLE ERROR WHEN IT MISSTATED EVIDENCE, DENIGRATED THE DEFENDANT AND IMPROPERLY APPEALED TO THE JURY'S SYMPATHIES. (Not Raised Below).

POINT III

THE SENTENCES IMPOSED FOR THE ATTEMPTED MURDER CONVICTIONS ARE COMPLETELY DEVOID OF ANY EXTENDED TERM DISCUSSION AND ARE THUS ILLEGAL. (Not Raised Below).

In addition, defendant has filed a supplemental pro se brief in which he argues

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO DECLARE SUA SPONTE A MISTRIAL, DISMISS JUROR #3 OR THE ENTIRE PANEL BECAUSE OF JUROR[']S INTENTIONAL MISCONDUCT. (NOT RAISED BELOW).

II. A MIDPOINT BALANCING OF AGGRAVATING AND MITIGATING FACTORS AS TO HOW [THE] SENTENCING COURT ARRIVED AT 55-YEARS FOR EACH ATTEMPTED MURDER COUNT[] SHOULD HAVE [BEEN] SET [FORTH] ON THE RECORD [WHICH] FAILURE DEPRIVED DEFENDANT OF HIS DUE PROCESS OF LAW. (NOT RAISED BELOW).

III. THE COURT'S FAILURE TO TAKE JUDICIAL NOTICE [OF] THE STREET SLANG TERM "WET" FOR DEFENDANT'S JURY BEFORE IT BECAME THE PREDICATE FOR INVOKING THE VOLUNTARY INTOXICATION CHARGE DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (NOT RAISED BELOW).

IV. THE TRIAL COURT JUDGE SHOULD HAVE SUA SPONTE CHARGE[D] CROSS-RACIAL IDENTIFICATION AND FAILING TO DO SO, DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER [THE] UNITED STATES AND NEW JERSEY CONSTITUTION[S]. (NOT RAISED BELOW).

V. THE STATE MADE IMPERMISSIBLE COMMENTS ON DEFENDANT'S RIGHT TO REMAIN SILENT BY TELLING [THE] JURY THAT "THE VERY NATURE OF WHAT HE DID, YOU KNOW HE [KNOWS] [HE] DID IT." (NOT RAISED BELOW).

VI. THE INSTRUCTION AND VERDICT SHEET CONCERNING THE ATTEMPTED MURDER COUNTS REFLECTS THE IMPERMISSIBLE MENTAL STATE OF KNOWINGLY WHICH ONLY WORK[S] TO MISINFORM THE JURY ON THE LAW, THUS [VIOLATING] DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

VII. THE STATE IMPROPERLY APPEALED TO THE JURORS['] SYMPATHIES BY ASKING, WITHOUT ANY BASIS IN FACT, WITNESSES WHETHER THEY HAD CHILDREN SINCE DEFENDANT WAS ACCUSED OF CRIMES AGAINST KIDS, THE QUESTIONS ONLY WORK[ED] TO PREJUDICE[] HIM. (NOT RAISED BELOW).

VIII. THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BECAUSE HE WAS SENTENCED WITHOUT A VERBATIM ALLOCUTION RESPONSE ON THE RECORD. (NOT RAISED BELOW).

IX. THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE DEFENDANT'S CASE, OR, DISMISSIED JUROR #5 BECAUSE SHE TOLD THE CLERK THAT HER HUSBAND PUT "GUTTERS" ON HIS HOUSE AND THE MATTER WAS ADDRESSED IN OPEN COURT FOR FAIRNESS AND IMPARTIALITY, BUT HER RESPONSE TO [THE] QUESTION[] WAS UNRESPONSIVE.

X. THE DEFENSE [COUNSEL'S] FAILURE TO DEMAND A DISMISSAL OF THE CHARGES BASED ON THE GROUNDS [THAT] THE STATE'S CHIEF WITNESS SIGNED [AN] AFFIDAVIT [GAVE] TRIAL TESTIMONY INDICATING THAT SHE DID NOT WISH TO PURSUE [] THE CASE AGAINST THE DEFENDANT BECAUSE THE ALLEGATION WAS FALSE, RENDERED COUNSEL'S ASSISTANCE INEFFECTIVE. (NOT RAISED BELOW).

XI. THE DEFENDANT'S CASE CONTAINED TWO SEPARATE OCCASIONS OF JURORS' TAINT AND BECAUSE HIS TRIAL COUNSEL FAILED TO ADVOCATE IN THIS REGARD, HIS CLIENT'S POSITION, HE RENDERED INEFFECTIVE ASSISTANCE. (NOT RAISED BELOW).

XII. THE NUMEROUS CONSTITUTIONAL INFRINGEMENTS AND TRIAL ERRORS RAISED BY DESIGNATED COUNSEL AND PRO SE THAT DEFENDANT ENDURED WARRANTS REVERSAL OF HIS CONVICTION WHEN VIEWED CUMULATIVELY. (NOT RAISED BELOW).

III.

First, defendant argues that the trial court erred by admitting in-court identifications of him into evidence "without any proffer of reliability." He contends that the court erred by failing to conduct a Wade1 hearing regarding these identifications. Defendant did not raise these arguments at trial. Therefore, we consider whether the admission of this evidence was erroneous and, if so, whether any error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013).

Here, the court was not required to conduct a Wade hearing to determine whether Robinson's and Dick's identifications of defendant should be admitted into evidence. The identifications were not the result of any impermissibly suggestive procedure. See State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.) (Wade hearing not required in the absence of a threshold showing of impermissible suggestiveness), certif. denied, 102 N.J. 335 (1985).

Indeed, the officers made their identifications based on their personal observations of defendant during the encounter. Defense counsel was permitted to question the officers concerning the identifications, but there was no basis to preclude them from identifying defendant in court as the person they observed in the residence during the encounter.

Defendant further argues that the court's instructions to the jury on the identification evidence were flawed. Defendant focuses on the following part of the charge

The State has presented the testimony of [Sergeant] Robinson. You will recall that this witness identified [defendant] in court as the person who committed the offenses charged in the indictment.

The State also presented testimony that on a prior occasion before this trial [Sergeant] Robinson identified [defendant] as the person who committed the offenses. According to that witness, his identification of [defendant] was based upon the observations and the perceptions that he made of the perpetrator at the time the offenses were being committed.

Defendant argues that the court erroneously stated that Robinson made an out-of-court identification of him. He says that, even if this instruction was correct, a similar instruction should have been provided regarding Dick's identification. These arguments are without merit. As the State notes, Robinson and Dick did not identify defendant as a result of any out-of-court identification process. They merely offered eyewitness testimony, indicating that they observed defendant during the encounter.

Moreover, the charge was appropriate because Robinson's and Dick's observations were different. Robinson testified that he observed defendant committing the offenses, whereas Dick merely stated that defendant was someone he saw in the house, after the shootings. Thus, the court's statement that Robinson identified defendant "as the person who committed the offenses" was accurate, and a similar statement as to Dick was not warranted.

Defendant further argues that the charge was erroneous because, at trial, his defense was that some other person shot at the police, possibly one of the men who earlier visited the premises and either remained there or returned later "unbeknownst to" R.T. He contends that the instructions had the capacity to mislead the jury and cause them to reach a verdict they might not have otherwise have reached.

We are convinced that the instructions on the identifications were sufficient to guide the jury in its evaluation of the testimony. Moreover, any errors in the instructions on identification were harmless because there was substantial evidence which established defendant's guilt of the charged offenses.

IV.

Next, defendant argues that the assistant prosecutor's opening and closing remarks were improper. He contends that the prosecutor misstated the evidence, denigrated him and appealed to the jury's sympathies. He argues that the prosecutor's improper comments deprived him of a fair trial and require reversal of the convictions.

If a prosecutor makes improper remarks, they will only be grounds for reversal if the impropriety "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 32o (1987)). In determining whether the remarks were "sufficiently egregious," we "'must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" Ibid. (quoting State v. Marshall, 123 N.J. 1, 153 (1991)). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 83-84 (citing Ramseur, supra, 106 N.J. at 323).

Here, defendant takes issue with the assistant prosecutor's comment in the opening statement that Robinson had looked defendant in the face and the officer "[will] tell you" that it was a face he would "never forget." Defendant points to a similar statement in the prosecutor's summation. He maintains that Robinson's trial testimony did not support these comments.

Defendant also takes exception to the assistant prosecutor's reference to him as a "dangerous, violent, murderous person." In addition, he takes issue with the prosecutor's statements in summation that the police officers were merely responding to a call for help, and one officer chose to go to the scene to "help out" when he could have gone home to his "wife and kids."

We note that prosecutors are expected to be vigorous and forceful in their arguments to juries. Id. at 82 (citing State v. Harris, 141 N.J. 525, 559 (1995)). "'Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall.'" Id. at 82-83 (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting)).

"The scope of the [prosecutor's] opening statement is limited to the 'facts he intends in good faith to prove by competent evidence.'" State v. Wakefield, 190 N.J. 397, 442 (2007) (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)). Furthermore, a prosecutor is afforded considerable leeway in closing arguments so long as the comments are reasonably based on the trial evidence. State v. Timmendequas, 161 N.J. 515, (1999).

We are convinced that the assistant prosecutor's comments regarding Robinson's testimony were not improper. As we have noted, Robinson identified defendant as the person he saw committing the charged offenses. Robinson said he was able to see the shooter's face and defendant as the shooter. The assistant prosecutor's statement that Robinson would not forget the face was fair comment on the testimony.

Furthermore, the prosecutor's reference to defendant as "dangerous, violent and murderous" was not improper. Here, defendant had been charged with kidnapping and attempted murder, and the State presented sufficient evidence to support those charges. The prosecutor did not improperly disparage defendant.

In addition, the prosecutor's comment regarding the officer who responded to the scene was not an improper appeal to the jury's sympathies. We note that defense counsel did not object to this remark, or to the other remarks about which defendant now complains. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84.

We conclude that the prosecutor's comments were not improper, and even if they were, they were not so egregious as to deprive defendant of his right to a fair trial.

V.

Defendant also challenges the sentences imposed by the trial court.

Here, the trial court found aggravating factors two, N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm inflicted on the victims); three, N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior record); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court also found mitigating factor four, N.J.S.A. 2C:44-1b(4) (substantial grounds to excuse or justify defendant's conduct, although not constituting a defense).

As we stated previously, the court sentenced defendant to four, concurrent fifty-five year custodial terms, subject to NERA, on counts nine, ten, eleven and twelve, charging attempted murder. The court imposed separate sentences on the other counts, and made them concurrent, with the exception of the of the seven-year consecutive sentence, with a five-year period of parole ineligibility, imposed on count twenty-nine, charging certain persons not to have weapons.

Defendant argues that the court erred by failing to explain the basis upon which the court imposed extended-term sentences on the attempted murder counts. However, as the State points out, the defense was well aware that defendant was facing an extended-term sentence pursuant to the Graves Act, N.J.S.A. 2C:43-6c. Indeed, defendant met the criteria for an extended-term sentence under N.J.S.A. 2C:44-3.

Thus, the court did not err by failing to specifically cite the statutory basis for imposing the extended-term sentences. Defendant's contention that we should remand the matter to the trial court for imposition of an ordinary term is without sufficient merit to warrant comment. R. 2:11-3(e)(2).

We conclude that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

VI.

As noted previously, defendant raises an array of issues in his supplemental pro se brief.

In Points X and XI, defendant claims that he was denied the effective assistance of trial counsel. "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding . . . ." 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 therefore defer consideration of defendant's claims of ineffective assistance of counsel. If he chooses to do so, he can pursue the claims in a timely-filed petition for post-conviction relief.

We have also considered the remaining arguments in defendant's supplemental brief. We conclude that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

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