STATE OF NEW JERSEY IN THE INTEREST OF J.J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3086-12T1

STATE OF NEW JERSEY IN THE

INTEREST OF J.J.H., a minor.

_____________________________

November 5, 2014

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-2312-12.

Joseph E. Krakora, Public Defender, attorney for appellant J.J.H. (Michael Confusione, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorneys for respondent State of New Jersey (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.J.H., a seventeen-year-old juvenile at the time the offenses were committed, appeals from an adjudication of three acts of delinquency that, if committed by an adult, would constitute first-degree robbery, N.J.S.A. 2C:15-1a(1); first-degree carjacking, N.J.S.A. 2C:15-2; and first-degree felony murder, N.J.S.A. 2C:11-3a(3). We affirm.

The judge tried two juveniles together, J.J.H. and A.R.S.,1 on charges related to a robbery, carjacking, and killing of a victim. We discern the following facts from the evidence adduced at the bench trial.

The victim asked an acquaintance, K.O., to drive him to an intersection in Newark. K.O. drove the victim to the requested location and pulled over. Two males crossed the street and approached K.O.'s car. One of the males had a gun and told K.O. to exit the vehicle and leave his wallet on the seat. K.O. followed the instructions. The victim remained in the vehicle.

The individual without the gun urged the gunman to shoot K.O., but K.O. fled the scene. K.O. then heard a single gunshot and called the police. The police arrived in the vicinity of the shooting and found the victim's body lying against a nearby fence with a single fatal gunshot wound to the neck. The police located K.O.'s vehicle several blocks away from the victim's body.

Detective Michael Chirico investigated the killing and interviewed K.O. K.O. described the gunman as being five feet seven inches to five feet eight inches tall, weighing one hundred and fifty pounds, with dreads or braids, and wearing a white t-shirt. K.O. described the other individual as wearing a tank top, shorts, a du-rag, and a glittery belt.

The detective obtained a surveillance video from a nearby restaurant that showed two individuals near the murder scene that matched the description given by K.O. The detective learned from the victim's cell phone records that the victim had spoken with another individual, A.G., around the time of the shooting. The detective interviewed A.G., who was unavailable to testify at trial.2

The police then compiled a photographic array and showed it to K.O. within a week of the killing. K.O. identified the juveniles as the people who robbed him and stole his vehicle. The juveniles were arrested and charged with committing the offenses.

The judge found J.J.H. guilty of first-degree felony murder, carjacking, and robbery. The judge sentenced J.J.H. to an aggregate ten-year custodial term.

On appeal, J.J.H. raises the following arguments

POINT I

THE COURT BELOW SHOULD HAVE GRANTED [J.J.H.'S] MOTIONS FOR ACQUITTAL OR FOR A NEW TRIAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE DELINQUENCY FINDING, WARRANTING VACATION[3]

POINT II

SEPARATE TRIALS SHOULD HAVE BEEN ORDERED BECAUSE THE DEFENSES ASSERTED BY THE JUVENILES DURING THE JOINT TRIAL BELOW WERE AT LEAST PARTIALLY ANTAGONISTIC, WARRANTING A NEW TRIAL [NOT RAISED BELOW].

POINT III

THE COURT BELOW SHOULD HAVE HELD A WADE[4] HEARING TO ENSURE THAT [J.J.H.'S] DUE PROCESS RIGHTS WERE NOT INFRINGED BY UNDULY SUGGESTIVE AND UNRELIABLE IDENTIFICATIONS [NOT RAISED BELOW].

POINT IV

[J.J.H.'S] SENTENCE IS IMPROPER AND EXCESSIVE.

I.

We begin by addressing J.J.H.'s contention that the State produced insufficient evidence to support the judge's findings that he committed the acts of delinquency.

It is well established that the State is required to prove every element of a criminal offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 99 (1997). The same allocation of the burden of proof applies in juvenile delinquency proceedings. State ex rel. J.G., 151 N.J. 565, 593-94 (1997). Upon examination of a court's verdict in a non-jury case, the standard of review for determining if the State satisfied its burden is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State ex rel. R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Moreover, we are obliged to "'give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

"[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

Applying these standards, we conclude that there is sufficient credible evidence in the record to support the judge's findings adjudicating J.J.H. of the acts of delinquency. The State had the burden of proof beyond a reasonable doubt regarding the charges of robbery, carjacking, and felony murder.

The elements of robbery, N.J.S.A. 2C:15-1a, are that in the course of committing a theft, the person

(1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens immediately to commit any crime of the first or second degree.

Here, the State produced credible evidence that J.J.H. and A.R.S. approached K.O. at gunpoint, instructed him to leave his wallet on the driver's seat, and then fled the crime scene driving K.O.'s vehicle.

The elements of carjacking, N.J.S.A. 2C:15-2, are that while in the course of attempting to or committing an unlawful taking of a motor vehicle the person

(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle; (2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury; (3) commits or threatens immediately to commit any crime of the first or second degree; or (4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.

Again, the State produced evidence that the juveniles threatened K.O. in the vehicle by using a gun to rob K.O. placing him in fear of immediate bodily injury, and then drove away after shooting the victim.

The elements of felony murder, N.J.S.A. 2C:11-3a(3), are

[W]hen the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism . . . and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants . . . .

[Emphasis added.]

The judge found K.O.'s eyewitness testimony credible, indicating that "[h]e clearly identified the two boys here . . . as being the individuals who held [K.O.] and [the victim] up on that evening." The judge noted that "[K.O.'s] testimony was consistent that the individual . . . holding the gun was one person and the other individual was another person." The judge stated that the individuals depicted in the surveillance video snapshot at a local restaurant near the time of the murder met the description given by K.O. And the judge found, based on the testimony of the medical examiner, that the victim died from a gunshot wound to the neck, consistent with being shot while the victim was either getting out, or already out, of the vehicle.

The judge then determined that

the State has proved beyond a reasonable doubt that there were two underlying felonies that occurred. There was the underlying felony of robbery, because [K.O.], his personal property . . . that being his wallet - - was taken from him by force by these two individuals. . . . There's also clearly a carjacking. The man was ordered out of his car, and there's no question . . . that the car was, in fact, stolen . . . and that these individuals used force to remove him from the car . . . .

. . . .

[T]his would be a classic example of a felony murder, in which the State simply is not able to say which one of the young men actually pulled the trigger, but it's clear that they were both working in concert with each other, involved in the underlying offenses. There was a gun, the victim was shot by that gun, and the victim died as a result of that . . . gunshot. There is no third person involved.

[C]learly, based on the conduct of these individuals on that date, there was shared intent to rob, there was a shared intent to carjack, and when [the victim] got out of that car there was clearly a shared intent . . . to commit a homicide and, in fact, a homicide occurred at the hands of one of these two individuals. There is no question in my mind beyond a reasonable doubt that the State has met its burden of proof.

Thus, the evidence presented at trial sufficiently supported the judge's findings.

II.

J.J.H. argues that the judge erred by failing to sua sponte order separate trials. J.J.H. contends that the judge should have conducted separate trials because defense counsel for A.R.S. implied during his cross-examination of K.O. that J.J.H. possessed the gun.

We apply the plain error standard here because J.J.H. did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

A joint trial is permitted pursuant to Rule 3:15-1 and is preferable "[w]hen the crimes charged arise from the same series of acts, and when much of the same evidence is needed to prosecute each defendant." State v. Brown, 118 N.J. 595, 605 (1990). "Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability . . . ." Richardson v. Marsh, 481 U.S. 200, 210, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176, 187 (1987).

The test for granting severance is "a rigorous one." Brown, supra, 118 N.J. at 605-06. Courts should grant a separate trial only when the defenses are "antagonistic and mutually exclusive or irreconcilable." Id. at 607. "Mutual exclusivity demands that the [finder of fact's] universe of choices be limited to two: [it] can believe only either one defendant or the other." Id. at 606 (internal quotation marks omitted).

We see no error, let alone plain error in this case. The juveniles' defenses were not antagonistic, mutually exclusive, or irreconcilable. Defense counsel worked together in an attempt to impeach the credibility of K.O. They cross-examined him on the issue of who possessed the gun, not to pass the blame from one juvenile to the other, but rather to suggest that K.O. misidentified the juveniles and was therefore an unreliable witness. And, most importantly, the judge found that the State was unable to establish beyond a reasonable doubt which juvenile had the gun.

III.

We reject J.J.H.'s argument that the judge erred by failing to conduct a Wade hearing to assess the purported suggestiveness and unreliability of K.O.'s identifications.5

"[A] defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification." State v. Henderson, 208 N.J. 208, 288 (2011). To evaluate suggestiveness, the court considers a "non-exhaustive list of system variables," such as the administration of the photo array or line up; the instructions given to the witness; the construction of the array or line up; the interactions of the witness and the investigator; and the number of viewings. Id. at 289-90. Trial courts "should conduct a Wade hearing only if [a] defendant offers some evidence of suggestiveness." Id. at 290 (emphasis added).

If proof of suggestiveness exists, courts then consider a non-exhaustive list of "estimator variables" which include stress; weapon focus; duration; distance and lighting; witness characteristics; characteristics of the perpetrators; memory decay; race bias; opportunity to view the criminal; degree of attention; accuracy of prior descriptions; level of certainty demonstrated; and time between the crime and the identification. Id. at 291-92.

J.J.H. failed to satisfy his burden of showing "some evidence of suggestiveness." The judge analyzed the system variables and found that

there were two photo arrays . . . shown to [K.O.] . . . . [K.O.] indicate[d] in his testimony that each photo was placed on the table . . . by a different investigator . . . that he ID'd photograph [number three] . . . that was, in fact, [J.J.H.] . . . . The report attached by an officer . . . indicated that [K.O.] was very calm and confident at the time that he gave that identification of [J.J.H.] . . .

. . . .

[K.O.] testified that he had no knowledge of [the juveniles] beforehand. . . .

It . . . doesn't appear to me, based on the instructions that were given to him, that [K.O.] failed to fully understand his responsibility. . . . There is nothing to indicate that he was told anything beforehand or in any way influenced as to . . . who he was looking for or what.

Even if J.J.H. showed some level of suggestiveness, the judge further analyzed K.O.'s identification against the estimator variables. He found there was proper lighting from a street light, K.O. could see the individuals very closely, and K.O. was face-to-face with the persons who did not cover their identities.

IV.

Finally, we reject J.J.H.'s argument that he received an improper and excessive sentence.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing a juvenile, the trial court must consider the relevant aggravating and mitigating factors. See N.J.S.A. 2A:4A-44a. The court must then "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

Affirmed.

1 A.R.S., a fifteen-year-old juvenile at the time of the offenses, was also found guilty and appealed from adjudications of six acts of delinquency that, if committed by an adult, would constitute first-degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1a(1); first-degree robbery, N.J.S.A. 2C:15-1a(1); first-degree carjacking, N.J.S.A. 2C:15-2; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirmed these adjudications in a separate opinion. State ex rel. A.R.S., No. A-2710-12 (App. Div. November 5, 2014).

2 The State requested two adjournments to secure A.G. for testimony at trial, but was unable to locate him.

3 J.J.H. did not make a motion for a new trial. On Point I, J.J.H. primarily contends that the State did not produce sufficient evidence to sustain the judge's findings.

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

5 It is unclear whether J.J.H. requested a Wade hearing.