STATE OF NEW JERSEY v. ANTHONY T. POLLARD

NOT FOR PUBLICATION WITHOUT THE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.

ANTHONY T. POLLARD,

Defendant-Appellant.

_______________________________

January 23, 2014

Submitted September 25, 2013 Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment 10-07-0766.

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

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

PER CURIAM

Defendant, Anthony Pollard, appeals his conviction for one count of second-degree robbery, N.J.S.A. 2C:15-1 and the nine-year custodial sentence imposed. We affirm.

The facts from which the jury reached its verdict established that on the evening of April 2, 2010, the victim, Felix Hernandez, was walking home from a liquor store near his home, where he had just purchased cigarettes and soda. He noticed what appeared to be three young black males following him. The three men surrounded him and demanded that he give them money. They threw him to the ground and started to kick him all over his body, including his face, as he yelled for help. One of the men started to search his pockets as he put his hand into his pocket to hold onto the forty dollars he was carrying. Hernandez yelled for help and the beating stopped when a man, later identified as Donald Zuleta, arrived with a cell phone and called police. Zuleta helped Hernandez, who felt dizzy and was bleeding from his nose, mouth and forehead, to his feet. The three robbers stood approximately five or six feet away, but started to run when people came out of their homes. They then "stopped and just continued walking."

Zuleta told him that he was still on the phone with police and that the police were on their way. He suggested to Hernandez that they follow the three individuals from a distance. Hernandez was unable to keep up with Zuleta, who continued to follow the men. He lost sight of Zuleta and the three men. When police arrived he pointed them in the direction he saw the suspects travelling. When he caught up to Zuleta, police had already detained two people, both of whom were black. When asked whether these two individuals had robbed him, Hernandez told police that he was sure they were the ones because he and Zuleta had followed them.

Officer Teisha Kin testified that she responded to Sanford Avenue on a report of an attack. She did not see anyone on Sanford but when she traveled down Norwood, she saw a man on a cell phone pointing in the direction of what appeared to be two males walking down the street. When she approached them she could see that the two people were actually a male and a female, but the female wore dreads and dressed like a male. Hernandez approached her and blurted out "that's them." The male was later identified as defendant, Anthony Pollard and the female, as Shannae Holliday.

Officer Leslie Hudson conducted the follow-up investigation during which she retrieved defendant's jeans and steel-toe Timberland boots because she believed she saw what appeared to be blood on these items. She also photographed Hernandez's injuries and defendant's hands, where she noticed that his knuckles on his left hand appeared to be very swollen. Additionally, she obtained the 9-1-1 tape of the telephone call to police about the incident and confirmed with Zuleta that it was his voice along with the voice of Sergeant Tony Edwards.

Donna Hansen, a forensic scientist, testified that a stain on defendant's jeans tested positive for human blood and the DNA profile from the stain matched the reference sample taken from Hernandez.

Zuleta did not testify at the trial. Detective Suzanne Deegan testified that she had been tasked with locating Zuleta but learned from Zuleta's brother and his former employer that he had returned to Guatemala. However, over defense counsel's objection, the court permitted the State to play portions of the 9-1-1 call, including Zuleta's statement that "the people are walking on my side." The trial judge concluded that the tape was non-testimonial and its admission was based upon a firmly rooted exception to the hearsay rule, present sense impression.

Defendant did not testify at trial and presented no witnesses. The jury convicted defendant of second-degree robbery. At sentencing the court imposed a nine-year custodial sentence with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Additionally the court imposed three years of parole supervision upon release, as well as appropriate fines and penalties.

Before imposing this sentence, the court found a number of aggravating factors, including aggravating factor one, the "nature and circumstances of the offense," N.J.S.A. 2C:44-1a(1), concluding that "given the nature of the beating in this case it was more than necessary. The combination of three individuals beating the victim, who was fighting to retain his property, justifies that finding." The court also considered aggravating factor two, the "gravity and seriousness of the harm inflicted on the victim," N.J.S.A. 2C:44-1a(2), based upon the victim's "continued residual pain and his continued residual psychological harm[,]" which at that point, was eighteen months after the incident. Additionally, the court found aggravating factor three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3), applicable. The court reached this finding not only based upon defendant's criminal history but also based upon "defendant's version of events; his failure, even now, to take responsibility for his action." The court acknowledged that defendant had the right to continue to maintain his innocence, but stated that "when he comes before the court and portrays himself as a victim without any mercy or concern for how that victim was treated, I think it goes to his lack of taking responsibility and the potential for a risk of re-offense." Further, the court found there was a "waft of organized criminal activity" involved based upon defendant's own statement during the presentence investigation. As such, the judge found aggravating factor five, "there is a substantial likelihood defendant is involved in organized criminal activity," N.J.S.A. 2C:44-1a(5), applicable, but noted that it was according it "any great consequence" for sentencing purposes. Finally, the court found aggravating factor nine, N.J.S.A. 2C:44-1a(9), "the need for deterring defendant and others from violating the law." The court found no mitigating factors. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I

THE PORTION OF ZULETA'S 911 CALL MADE AFTER ALL DANGER TO HERNANDEZ HAD PASSED, WAS TESTIMONIAL AND NOT ADMISSIBLE AS A PRESENT SENSE IMPRESSION. ITS ADMISSION INTO EVIDENCE VIOLATED CRAWFORD V. WASHINGTON BECAUSE ZULETTA DID NOT TESTIFY AND WAS NOT SUBJECTED TO CROSS-EXAMINATION. U.S. CONST., AMENDS. V. VI, XIV; N.J. CONST. (1943), ART. 1, 1, 9 AND 10.

POINT II

THE COURT ERRED IN CHANGING ITS MIND AND REFUSING TO CHARGE THEFT, WHICH WAS CLEARLY INDICATED FROM THE RECORD, AS A LESSER-INCLUDED OFFENSE TO ROBBERY UNDER THE THEORY OF ACCOMPLICE LIABILITY. (PARTIALLY RAISED BELOW).

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We have considered these points in light of the record, arguments advanced in the briefs, and the applicable legal principles. We reject each of the points raised. The court did not abuse its discretion in permitting the jury to hear that portion of Zuleta's 9-1-1 call, in which he reported the direction of travel of Hernandez'z attackers. Nor did the court commit reversible error when it concluded a theft instruction to the jury was not warranted. Finally, as for defendant's claim in Point III that the nine-year sentence imposed is excessive, we conclude this contention is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). The record amply supports all of Judge Donohue's sentencing findings. We discern no support in the record for finding any mitigating factors. See State v. Miller, 205 N.J. 109, 127 (2011). Thus, the record supports the finding that the aggravating factors predominated over the non-existent mitigating factors.

I.

Defendant argues that identification was a critical issue at trial and by permitting the jury to hear portions of the 9-1-1 tape, which purportedly was occurring while Zuleta was following the suspects until they were detained by police, defendant was deprived of his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because Zuleta was unavailable to testify at trial. We disagree.

"'Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay evidence is inadmissible at trial unless it falls within one of the recognized exceptions to the hearsay rule. N.J.R.E. 802. One such exception is a present sense impression, which is "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). The admission of hearsay statements falling under the category of a present sense impression is not dependent upon the unavailability of the person making the statement. N.J.R.E. 803(c).

In Crawford, upon which defendant relies in urging reversible error in the court's admission of what he characterizes as the testimonial portion of Zuleta's discussion with the 9-1-1 dispatcher, the United States Supreme Court interpreted the Confrontation Clause as prohibiting the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. To correctly apply Crawford, trial courts must employ a two-step process. State v. Chun, 194 N.J. 54, 138-39, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). First the court determines whether the statement meets the criteria for admission under the rules of evidence, typically as an exception to the hearsay rule and second, if so, whether the evidence is testimonial, "thus requiring the declarant to be made available for cross-examination." Id. at 139.

Statements made to police, which objectively may be characterized as cries for help in order to assist police in responding to on-going emergencies rather than as reports of past events, have been held to be non-testimonial. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). In Davis, the Court held that statements made by a domestic violence victim during a 9-1-1 call were not testimonial because she was speaking about events that were contemporaneously happening rather than reporting some past event. Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. The rationale underlying the characterization of such statements as non-testimonial is that ordinarily the purpose of a 9-1-1 call is not to establish or prove some past fact, but rather, to "describe current circumstances requiring police assistance." Ibid.

Here, the State urges that Zuleta's statements were non-testimonial. The defense conceded that "when the 9-1-1 is initially placed what is being said initially, arguably, does fall up under excited utterance." Therefore, it is the balance of the 9-1-1 call to which the defense characterizes as testimonial because, as trial counsel urged, "[t]he whole request for [Zuleta] to stay on the phone is in anticipation of litigation, it's anticipation of prosecution, and so that is what is strategically done by the officer so that they could do whatever they needed to do." We disagree.

As Judge Joseph P. Donohue ruled, after the initial statement to the 9-1-1 dispatcher, the balance of Zuleta's statements were admissible as a present sense impression because Zuleta was witnessing an event while speaking to the dispatcher and pursuing the perpetrators during the course of this telephone call in order to lead the police officers to them. The judge reasoned that Zuleta was "being directed to respond [to] where are they, and the sole purpose of this is to bring police to an area where the perpetrators of this event can be apprehended, not in order to bring them to trial[.]"

We accord substantial deference to a trial judge's evidentiary rulings and will only set aside such rulings upon a showing of manifest error or injustice. State v. Belliard, 415 N.J. Super. 51, 87 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011). We find no error in the admission of the portions of the 9-1-1 call to which the defendant objected, let alone manifest error. Zuleta was not narrating a past crime. He came upon Hernandez as he was being attacked and robbed. He immediately dialed 9-1-1. As the perpetrators started walking away and then running he remained on the phone as he followed them, directing police to their location. As such, he was reporting a fluid ongoing situation and the 9-1-1 operator's questions were limited to obtaining information necessary to direct police response. Ibid.

Finally, Judge Donohue, precluded the admission of Zuleta's identification of defendant. The remaining portions of the 9-1-1 call, which defendant sought to exclude, were not critical to defendant's successful prosecution. Had the statements been excluded, there was substantial, credible evidence to support defendant's conviction. See State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007). Officer King testified that she saw Zuleta on the phone pointing in the direction where defendant and Holliday were walking. After detaining them, Hernandez arrived and identified the detained individuals before she asked him any questions. Defendant's right knuckles were swollen and DNA testing confirmed that Hernandez's blood was on defendant's clothing.

II.

Defendant next urges that the court erred when it initially determined that it would give a theft charge but then changed its mind and declined to do so, because the lesser-included charge of theft was clearly indicated by the evidence. Although defendant is correct, the court initially agreed to give the lesser-included theft charge and assault, following summations, he advised counsel that he did not believe a rational jury could acquit defendant of robbery and convict him of theft. Defense counsel took the opportunity to confer with defendant and advised the court that defendant was no longer seeking both the lesser included charges of theft and aggravated assault. Rather, trial counsel advised the court that defendant was seeking jury instructions on the lesser "included of aggravated assault and simple assault," because the defense had not considered that if the jury found defendant guilty of both the lesser included offenses of theft and assault that would

essentially "bring it back to . . . a robbery." Having made the strategic choice to seek only the lesser included charges of assault, defendant may not assign error to the trial judge's failure to charge the jury on the lesser-included offense of theft. See State v. Savage, 172 N.J. 374, 401 (2002) (concluding the court has no duty to impose a lesser included charge sua sponte). Rather, resolution would require consideration of matters outside the record and thus this is an issue more appropriately addressed to post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

We additionally note, however, that entitlement to a lesser included jury instruction requires evidence in the record that rationally establishes a basis to convict a defendant of a lesser-included offense. State v. Samuels, 189 N.J. 236, 251 (2007). Here, to justify such an instruction, the jury would have had to ignore the evidence that Hernandez was assaulted, but nonetheless find that defendant is the person who went through Hernandez's pockets despite rejecting the evidence supporting the conclusion that defendant or his cohorts committed an assault. The evidence does not rationally support such an outcome, which presumably explains why trial counsel agreed with the court and the State that theft, as a lesser-included offense, should not be charged.

Affirmed.