STATE OF NEW JERSEY v. DONALD C RANDALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5806-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD C. RANDALL,

Defendant-Appellant.

____________________________________

October 30, 2014

Submitted September 16, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-09-2295.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a three-day trial, defendant Donald C. Randall was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2), (count one); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4)(a), (count four); and the lesser included disorderly person offense, N.J.S.A. 2C:20-2(b)(4)(a) (count five). Defendant was sentenced to an aggregate ten-year term of imprisonment subject to 85% percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals contending his motion for acquittal should have been granted, and errors were made with respect to jury instructions, admission of leading questions by the prosecutor and merger of offenses. We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and remand the matter solely for the purpose of resentencing for the amendment of the judgment of conviction.

I

We summarize the most pertinent evidence introduced at the trial.

On June 2, 2012, sometime after 8:00 p.m., a man with a scruffy beard wearing dark sunglasses and a hat walked into a Dollar Tree Store in Camden, and pointed a silver handgun at the store's stock manager and cashier demanding they give him money from the cash registers. They heeded the request and placed money into a duffle bag handed to them by the man. The man fled the store and the employees went towards the store's front window. The man came back towards the window, then pointed the gun at the employees through the window in a gesture to direct them back into the store. When the police arrived shortly thereafter, the stock manager advised that he recognized the man as a regular customer but he did not know his name. The entire incident was caught on the store's video surveillance camera and viewed by the police.

Twelve days later, the stock manager saw the same man in the store making a purchase. The stock manager contacted the police, and the man, subsequently identified as defendant, was arrested for the robbery.

At trial, the stock manager identified defendant as the man who robbed the store. He also testified that at the time of the robbery he recognized defendant, both visually and vocally, as a customer who frequented the store a couple of times a month over the three years he had worked at the store. The video of the robbery was shown to the jury. Also, one of the investigating police officers testified that the stock manager advised her at the scene following the robbery that he thought the robber was a regular customer. The cashier did not testify.

Defendant testified that he was familiar with the Dollar Tree Store but did not rob the store. He stated he was not at the store the day of the robbery but was there just prior to his arrest. Defendant did not present any other witnesses.

The jury acquitted the defendant of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),(count two), but convicted him of the remaining counts of the indictment. And the judge imposed the sentence as we stated earlier.

Defendant raises the following issues on appeal

POINT I

THE defendant's right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Art. I, Par. 1 of the New Jersey Constitution was violated by the trial court's failure to instruct the jury accurately and completely on the law of identification (Not Raised Below).

A. The Identification Instruction Omitted Guidance On How To Evaluate The Voice Identification Evidence Used To Convict The Defendant.

B. The Visual Identification Instruction Was Deficient.

POINT II

The defendant's right to due process of law as guaranteed by the fourteenth amendment to the United States Constitution and Art. I, Par. 1. Of the New Jersey Constitution was violated by the erroneous and prejudicial instruction on the law of robbery and possession of a weapon with the intent to use against the person or property of another (Not Raised Below).

POINT III

The defendant's right to due process of law as guaranteed by the fourteenth amendment to the United States Constitution and Art. I, Par. 1 of the New Jersey Constitution was violated by the improper admission of highly prejudicial, incompetent evidence resulting from leading questions containing legal conclusions (Not Raised Below).

POINT IV

The Defendant's right to due process as guaranteed by the fourteenth amendment to the United States Constitution and Art. I, Par. 1 of the New Jersey Constitution was violated by the accumulation of trial errors (Not Raised Below).

POINT V

The defendant's motion for judgment of acquittal should have been granted.

POINT VI

The trial court should have merged offenses.

A. The Conviction For Possession Of A Weapon With The Intent To Use Unlawfully Merges With The Convictions For The Substantive Crimes. (Not Raised Below)

1. The Conviction For Possession Of A Firearm With The Intent To Use Against The Person Of Another Should Merge With The Conviction For Aggravated Assault.

2. The Conviction For Possession Of A Firearm With The Intent [To] Use Against The Person Of Another Should Merge With The Conviction For Armed Robbery.

B. The Conviction For Theft Merges With The Conviction For Robbery.

II

We initially address defendant's challenges to the jury instructions. Since defendant did not object to the jury instructions at trial, we must determine whether the alleged error constitutes "plain error," that is, error that had the clear capacity to lead to an unjust result. R. 2:10-2. We recognize that an erroneous jury charge on a matter "'fundamental and essential or . . . substantially material' is almost always considered prejudicial." State v. Maloney, 216 N.J.91, 104-105 (2013)(quoting State v. Simon, 79 N.J.191, 206 (1979)). Such an error gives rise to a presumption of reversible error "that can only be excused if the error is determined to be 'harmless beyond a reasonable doubt.'" Id.at 105 (quoting State v. Collier, 90 N.J.117, 123 (1982)). An alleged error must be considered not in isolation but "in light of 'the totality of the entire charge.'" Ibid.(quoting State v. Chapland, 187 N.J.275, 289 (2006)). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J.397 (2000).

Defendant contends three errors were committed with respect to the jury charges. First, the trial judge failed to give an out-of-court voice identification charge. Second, the visual identification instruction that was given failed to acknowledge another eyewitness who could have observed the suspect. Third, the trial judge erred in summarizing the State's theory that defendant had an unlawful purpose in robbing the store with a firearm. We disagree with these contentions.

With respect to an out-of-court voice identification charge, defendant contends that the trial judge should have given jury instructions guiding the jury on how to consider the stock manager's testimony that he recognized the defendant's voice as a regular Dollar Tree Store customer when defendant robbed the store. Defendant asserts that the stock manager might have misidentified the robber's voice as defendant's voice. Defendant argues that in accordance with State v. Clausell, 121 N.J.298 (1990), voice identification charges are required based on the recognition that, "[t]he Constitutional safeguards applicable to visual identification apply equally to voice identifications." Id.at 328. We are unpersuaded.

Although there are model jury charges guiding a jury how to consider in-court and out-of-court visual identification, there are no charges regarding voice identification, regardless of whether it was in-court or out-of-court. See, Model Jury Charge (Criminal), "Identification: In-Court And Out-of-Court Identifications" (2012). Yet, there was no justification for the trial judge to provide voice identification jury charges in this case.

Defendant's reliance on Clausellis misplaced. There, the Court held an in-court voice identification was inadmissible because its reliability was outweighed by the suggestiveness of the in-court identification procedure. Clausell, supra, 121 N.J.at 324. Moreover, the totality of the circumstances suggested that the identification was not reliable, because the witness only heard the suspect's voice on a single occasion prior to trial, and testified that "there was nothing distinctive about [his] voice." Id. at 329. Here, unlike the situation in Clausell, there was no in-court voice identification conducted, and the stock manager's out-of-court voice identification was attributed to his familiarity with defendant's voice because defendant was a frequent store customer. Given the trial judge's in-court and out-of-court visual identification jury charges as a whole, coupled with the stock manager's in-court visual identification of defendant, the absence of out-of-court voice identification jury charges did not prejudice defendant or bring about an unjust result.

As to the in-court visual identification charge that was given, defendant argues that the instruction was not "balanced and fair" because it focused on the stock manager's identification of defendant without mentioning the cashier, who was at the cash register with the stock manager during the robbery but did not identify defendant. We conclude there was no reason for the trial judge to make reference in his jury instructions to the lack of testimony from the cashier to corroborate the stock manager's identification of defendant.

The focus of the court's identification charge that was given relates to the reliability of the identification made by the stock manager. SeeState v Henderson, 208 N.J.208 (2011). When crafting a jury charge, the court may add "specific factual references to the identification instruction when necessary for clarity or when the court concludes that such references are required in the interest of justice." State v. Robinson, 165 N.J.32, 45 (2000). Here, neither clarity nor the interest of justice required that the court do more than merely "reference[] . . . defendant's contrary contentions." Ibid. The identification jury charge in this case tracked the model charge and incorporated defendant's theory of the case, which was that the stock manager's identification was flawed because defendant was not at the Dollar Tree Store on the night of the robbery. The cashier's observations were not at issue because he did not testify. Simply put, for the judge to give instructions mentioning the cashier's opportunity to make the same observations as the stock manager would introduce evidence that was not presented. The argument that the cashier did not testify and corroborate the stock manger's identification, is just that, argument, and was properly not part of the judge's instructions as to the law.

Defendant's remaining challenge to the jury instructions is based upon the trial judge's summary of the State's theory that defendant had an unlawful purpose in robbing the store with a firearm. Defendant cites the judge's comments

In this case, the State contends that the defendant's unlawful purpose in possessing the firearm was to rob the Dollar Tree Store. You must not rely on your own notions of what is unlawful or some undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged.

Defendant asserts that there are two problems with this instruction. First, that "there is no such unlawful purpose as robbing a store because there is no such crime[.]" Second, that "the court expressly restricted jurors' consideration to whether the defendant is guilty of a crime that the law does not recognize." Defendant argues that the error "impacted both the possession with the intent to use a gun unlawfully against the person or property of another and the robbery charge." He contends this was compounded by the prosecutor's mis-representation of the law when she questioned the store manager about the man that "robbed the store." We conclude there was no plain error with respect to these comments to the jury.

The trial judge gave the model jury charges for robbery and possession of a weapon for an unlawful purpose. His single reference to robbery "of a store" or the prosecutor's analogous statements, singly or together, were clearly incapable of producing an unjust result. The record fails to reflect that the jury did not follow the judge's instruction. State v. Winter, 96 N.J.640, 649 (1984).

Next, we address defendant's contention that his due process rights to a fair trial were denied by the prosecutor's leading questions. Defendant cites the following direct examination of the stock manager, regarding defendant's possession of a gun during the robbery

Q: Okay. And at that particular point, had you made any observations about anything else the defendant was holding?

A: The defendant's gun.

Q: Okay. And can you describe the gun at all?

A: It was like an old silver - - it's like - - I would say a revolver, but I'm not exactly sure what it was.

Q: You said 'a revolver'?

A: Yes.

Q: Okay. But your - - were you fairly certain at that point in time that it was a gun.

A: Yes, ma'am.

Defendant argues that "the prosecutor . . . testified for the witness by telling him that he was 'fairly certain' that the item was a gun." In doing so, the prosecutor "tamper[ed] with the evidence by the clever use of leading questions, through which she transformed the witness's ambiguous testimony into 'fairly certain' testimony, and then 'fairly certain' testimony into 'certain testimony.'" Finally, defendant argues that any prejudice encountered as a result of the leading questions was "greatly exacerbated" when the prosecutor included "legal conclusions about 'a robbery' in her questions multiple times," a tactic defendant asserts was intended to convince the jury that the crime was robbery, not theft.

As defendant did not object to these questions, reversal is warranted only if the alleged improprieties constitute plain error because they were "clearly capable of producing an unjust result." R. 2:10-2. We conclude there was no plain error.

The State is correct in contending that the questions were proper because they merely called attention to stock manager's testimony about the gun. A leading question is one which "suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness." Biunno, Weissbard,& Zegas, New Jersey Rules of Evidence, comment 8 on N.J.R.E. 611 (2014) (citing State v. Abbott, 36 N.J. 63, 79 (1961)). In contrast, a non-leading question "invite[s] the witness's attention to something." Ibid. The questions did not suggest to the witness that defendant possessed a gun or that the witness observed a gun. They merely sought to clarify the certainty of his observation. This was an appropriate examination of a witness to an armed robbery, and did not produce an unjust result.

Likewise, the prosecutor's multiple references to defendant's conduct as a robbery did not produce an unjust result. The term "robbery" was initially mentioned by the stock manager when he stated the store was robbed. Both the prosecutor and defense counsel continued to use the term. The trial judge gave model jury charges that clearly distinguished the offenses of robbery and theft, and there was no indication that the jury did not follow the judge's instruction. SeeWinter, supra, 96 N.J. at 649. Thus, the references to "robbery" did not unjustly affect the manner in which the jury considered whether the State proved defendant was guilty of robbery or theft.

In addition, defendant contends the trial judge erred by denying his motion for acquittal on all weapons-related offenses. He argues that no gun was recovered, and the testimony by one of two witnesses that defendant possessed a gun was initially uncertain until a leading question was posed by the prosecutor. Defendant asserts the State did not establish his guilt beyond a reasonable doubt. We disagree.

In reviewing a motion for acquittal based on insufficiency of evidence pursuant to Rule 3:18-1, our review is limited and deferential, and we apply the same standard that binds the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). Thus, it must be decided when viewing the evidence in its entirety, with the State having the benefit of all favorable inferences, and recognizing that such evidence need not exclude "every other hypothesis except that of guilt[,]" State v. Brown, 80 N.J. 587, 598 (1979), whether there is sufficient evidence to find guilt beyond a reasonable doubt. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967).

Initially, it must be pointed out that on appeal, defendant mischaracterizes the argument that was made before the trial judge. At trial, defense counsel contended acquittal should be granted based upon mistaken identity. He contended there was a significant difference between the testimony of the stock manager and the police detective, who arrested defendant two weeks after the incident, regarding defendant's height. The judge rejected this argument in ruling that it's up to the jury to the access the witnesses' credibility, and the differing testimony is not a sufficient basis to determine no reasonable jury could find defendant guilty.

Nonetheless, the argument presented on appeal is equally unpersuasive. Giving the State the benefit of all favorable testimony and inferences which could be reasonably drawn therefrom, a reasonable jury could have concluded defendant was guilty beyond a reasonable doubt. The stock manager recognized defendant during the robbery as a result of seeing him in the store a couple of times per month over a period of three years, amounting to seventy-two times. He recognized the robber's voice and features as defendant, despite defendant's attempt to disguise himself by wearing sunglasses. As discussed above, there were no leading questions concerning the observation of the gun. The stock manager clearly and unmistakably testified that defendant had a gun during the robbery. Moreover, the jury saw a clear color surveillance video depicting the entire incident, from defendant's entry in the store holding a gun to his departure. Therefore, the judge made the proper decision to deny the motion for acquittal.

We next address defendant's contention that the aggregate of errors mentioned above denied him a fair trial. The State contends that since every argument raised by defendant lacks merit, there can be no cumulative effect depriving defendant of a fair trial. A "defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953). Thus, only those errors that "'in their aggregate have rendered the trial unfair . . . dictate the granting of a new trial.'" State v. Marshall, 123 N.J. 1, 169 (1991) (quoting State v. Orecchio 16 N.J. 125, 129 (1954)). In this case, the State presented overwhelming evidence of defendant's guilt. We do not find that the errors alleged by defendant, considered separately or collectively, rendered the trial unfair or warrant reversal.

Lastly, defendant contends the judge erred by not merging all of the four offenses of which he was convicted. As noted at the beginning of this opinion, sentences were imposed on each of the four counts. The State concedes, and we agree, that the convictions for possession of a weapon for unlawful purposes and theft should have been merged with the robbery conviction. However, we disagree with the defendant's contention that the conviction for aggravated assault with a firearm merges with armed robbery.

Offenses will not merge when "each requires proof of facts not required to establish the other . . . . " State v. Diaz, 144 N.J. 628, 637 (1996) (citing State v. Dillihay, 127 N.J. 42, 46-47 (1992)). The facts here are similar to those faced by the Court in Diaz when it rejected merger of offenses in ruling,

[a] defendant uses a gun to commit a substantive offense such as robbery and then also uses the gun to frighten and prevent eyewitnesses from informing the police or to force a person to provide protective shelter. Under this fact pattern, the defendant's purposes in possessing the gun were first to use it to commit the substantive offense against one victim, and then to use it to threaten a person other than the victim of the substantive offense.

[Diaz, supra, 144 N.J. at 636-637.]

In thiscase, defendant'sfirst purpose was to use the gun to commit robberyagainst the Dollar Tree Storeemployees. Later, thestore managertestified thatthe defendantused thegun to"threaten" himand thecashier, tomake them stepaway fromthe windows afterdefendant fled.This wasconfirmed bythe surveillancevideo. Accordingly,the trial court properly declined to merge aggravated assault with a firearm with armed robbery.

Affirmed in part, reversed in part, and remanded for the court to correct defendant's judgment of conviction consistent with this opinion.