STATE OF NEW JERSEY v. EDWARD O. MCKINNEY

NOT FOR PUBLICATION WITHOUT THE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.

EDWARD O. MCKINNEY, a/k/a EDDIE

O. MCKINNEY,

Defendant-Appellant.

____________________________

November 30, 2015

Submitted October 5, 2015 Decided

Before Judges Sabatino and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-03-0170.

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

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

PER CURIAM

Tried to a jury, defendant Edward O. McKinney was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1; one count of third-degree terroristic threats, N.J.S.A. 2C:12-3b; one count of the lesser included petty disorderly offense of harassment, N.J.S.A. 2C:33-4; and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e. The judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3a, and after merging the conviction for terroristic threats, sentenced defendant to an extended forty-five-year term of imprisonment on the first of the robbery counts, subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with the remaining counts to run concurrently. The judge did not merge the imitation firearm count, which the State concedes was error. See State v. Tate, 216 N.J. 300, 303 (2013).

Defendant appeals, contending the prosecutor engaged in misconduct and the sentence is excessive. Although we agree that the prosecutor made an improper comment in summation lacking any support in the record, we cannot find the comment deprived defendant of a fair trial. Accordingly, we affirm defendant's conviction. We vacate defendant's sentence, however, and remand for appropriate merger of the firearm conviction and reconsideration of the sentence in accordance with Tate, supra, 216 N.J. at 303; State v. Pierce, 188 N.J. 155, 161-65 (2006); and N.J.S.A. 2C:44-1c(2).

The State presented the testimony of two men who claimed they were the victims of an armed robbery outside a liquor store in Penns Grove. Both testified that a tall black man with a beard in an "army" or "soldier" jacket pointed a gun at them and threatened to shoot them if they didn't hand over their money. Neither man identified defendant as the robber before trial and neither could identify defendant in the courtroom.

The State also presented the testimony of a Penns Grove patrol officer and a detective from the prosecutor's office who, after talking with the victims within an hour or so of the crime, viewed video surveillance of the inside of the liquor store. The two officers recognized the tall, bearded man wearing a camouflage jacket in the video as defendant. They immediately went to his home and arrested him when he came to the door. A search of his person revealed an inoperable pellet gun in his waistband. After obtaining consent to search the premises, the officers found a camouflage jacket matching the one they viewed on the video and the description of the one worn by the robber.

After receiving Miranda1 warnings, defendant gave a statement admitting that he robbed the victims. He claimed that the men approached him inside the bar at the liquor store and asked him for cocaine. Although he did not have any drugs, defendant told the men he did, and the three went outside. Defendant admitted he then demanded money from the two men and lifted his shirt to show them the "B.B. gun" in his waistband. He denied pulling out the gun or threatening the victims. He told the officers he was carrying the gun because he had been "jumped" outside the same liquor store three days before. He claimed he took a total of fifty-five dollars from both men. The statement was played for the jury. Defendant did not testify. His defense at trial was that the State did not prove beyond a reasonable doubt that the statement he gave related to the robbery of these victims on the night alleged.

Defendant appeals raising the following issues.

POINT I

MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED MR. MCKINNEY HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below).

A. Denigration of the defense and

exaltation of the role of the prosecutor.

B. Invocations of the prosecutor's

experience and expertise.

C. Prejudicial comments without any basis

in the record.

POINT II

MR. MCKINNEY'S 45-YEAR DISCRETIONARY EXTENDED TERM NERA SENTENCE, IMPOSED BASED ON VARIOUS ERRORS BY THE TRIAL COURT, IS EXCESSIVE.

A. The trial court double-counted Mr.

McKinney's criminal record as a basis for both a persistent offender extended term and Aggravating Factors 3, 6, and 9.

B. The trial court erroneously found that a

lengthy extended term of imprisonment with an 85% parole disqualifier was necessary to protect the public.

C. In focusing exclusively on Mr.

McKinney's criminal record, the trial court entirely failed to consider the facts of the instant offense.

POINT III

THE TRIAL COURT ERRED IN FAILING TO MERGE COUNT SEVEN INTO COUNTS ONE AND TWO.

We deem defendant's claim that the prosecutor exalted his role by introducing himself to the jury saying it was his privilege to represent the State and thanking them in summation on behalf of the "people of . . . Salem County," to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). These remarks were no more than innocuous platitudes and not the "call to arms" we condemned in State v. Goode, 278 N.J. Super. 85, 89-90 (App. Div. 1994), or State v. Holmes, 255 N.J. Super. 248, 249-52 (App. Div. 1992).

We come to the same conclusion regarding defendant's complaint that the prosecutor invoked his supposed experience and expertise by telling the jurors, "you don't realize this because you don't have much experience hearing cases. You actually heard a fairly interesting case; a little bit of everything." Although the comment certainly appears directed to draw a contrast between the jurors' experience and the prosecutor's, it did not, in our view, tend to create the objectionable impression that the prosecutor had some superior knowledge of defendant's guilt. See State v. Farrell, 61 N.J. 99, 103 (1972).

We find slightly more troubling the prosecutor's comments referring to defense counsel as "obviously . . . an advocate" with "a job to do," particularly coming as they did on the heels of this remark

Bound by the facts [quoting defense counsel]; I like that. We're bound by the facts. We're all bound by the facts and you're bound by the facts.

I don't know; sometimes over the years when I try cases, I wonder after I hear my colleague give their spin on what occurred, if we were had heard the same case, but I don't have any problem being bound by the facts that were presented by the State in this matter.

A prosecutor must not demean or disparage the role of defense counsel or cast aspersions upon a lawyer's motives in summation. State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992). Although we do not find these comments to constitute misconduct, they are unnecessary and risk, in context, crossing the line from a focus on the evidence to disparagement of defense counsel and should be avoided.

We do, however, agree with defendant that the prosecutor made one improper comment without any basis in the record in the course of his summation.2 Responding to defense counsel's point that the victims had been unable to identify defendant, the prosecutor said

Obviously, it would have been a much better case for the State if one or both of my victims in court sits there and says, yeah, that's the guy who robbed me.

That didn't happen; okay? Why not? Time, they're scared. Maybe Mr. McKinney looks a little different from, you know, 18, 19 months ago from that point, but that's not dispositive; okay?

[(Emphasis added).]

Defense counsel did not object and request a curative instruction until the court reconvened after a lunch break. Although the prosecutor claimed his reference was to the fear the victims felt at the time of the robbery, the judge did not agree and found the comment inappropriate because there was nothing in the record to support it. The judge said he would address it when he gave his general instruction that jurors should rely on their own recollection of the evidence and not the lawyers' comments. The judge made no specific mention of the comment in his charge and defense counsel did not draw the judge's attention to the omission.

We expect prosecuting attorneys in criminal cases to make vigorous and forceful closing arguments to juries. State v. Frost, 158 N.J. 76, 82 (1999). So long as their comments are reasonably related to the scope of the admissible evidence presented during the trial, prosecuting attorneys are afforded considerable leeway in making their summations. State v. Harris, 141 N.J. 525, 559 (1995). Because a prosecuting attorney in a criminal case acts as the State's attorney, however, the prosecutor has a "double calling to represent vigorously the [S]tate's interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done." State v. Ramseur, 106 N.J. 123, 323-24 (1987). Hence, a prosecutor must not only be zealous in enforcing the law, but must also "consistently refrain from any conduct that is lacking in the essentials of fair play." State v. D'Ippolito, 19 N.J. 540, 550 (1955).

In responding to the defense case, the prosecutor engaged in an unpermitted, albeit brief, foray beyond the evidence adduced at trial. Although it would have been better had the trial court addressed the remark directly in its charge, the court capably instructed the jury that its recollection of the evidence, not counselors' comments on it, is controlling. Because we find the instruction ameliorated whatever prejudice might have resulted from the prosecutor's comment, we find no basis to reverse defendant's conviction based on the prosecutor's error. See State v. T.J.M., 220 N.J. 220, 237 (2015). In no event could we find the comment so egregious so as to have deprived defendant of a fair trial. See State v. Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

We turn to consider the arguments defendant has offered to establish that the court failed to merge the imitation firearm conviction and that his aggregate forty-five-year extended-term sentence is excessive. The State concedes, and we agree, that the court erred in failing to merge the imitation firearm conviction.

Merger, of course, "implicates a defendant's substantive constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990). "If an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). Because it is clear on this record that the only use of the inoperable pellet gun was to commit the substantive offenses of first-degree robbery, we remand for the merger of defendant's conviction for fourth-degree possession of an imitation weapon for an unlawful purpose, into his convictions for first-degree robbery. See State v. Romero, 191 N.J. 59, 80 (2007) (merging defendant's conviction for unlawful possession of a knife into his conviction for first-degree robbery); see also Tate, supra, 216 N.J. at 312 (holding "[w]hen the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense, merger is required" (quoting State v. Diaz, 144 N.J. 628, 636 (1996))).

As to defendant's claim that his extended-term sentence is excessive, although not necessarily convinced the sentence is excessive, we conclude the judge failed to adequately explain his reasons for imposing the sentence he did, thus impeding our review. See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Fuentes, 217 N.J. 57, 72-74 (2014). Accordingly, we vacate the sentence and remand for resentencing in accordance with State v. Randolph, 210 N.J. 330, 351-52 (2012) (noting remand for reconsideration and justification of sentence requires new analysis of aggravating and mitigating factors).

Defendant concedes that his age and the nature, number, and timing of his prior convictions made him extended-term eligible as a persistent offender pursuant to N.J.S.A. 2C:44-3a. He was fifty-one years old at the time of sentencing, had seven prior adult indictable convictions, two juvenile adjudications and twelve municipal convictions. Defendant was sentenced to State prison on each of his prior indictable convictions with his last period of confinement ending only one year before the robbery at issue. Accordingly, the judge determined, and defendant concedes, that the sentencing range on the first of the two first-degree burglary convictions was from ten years to life imprisonment. See Pierce, supra, 188 N.J. at 168.

Although finding aggravating factors three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and nine, the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9), and no mitigating factors, the judge did not explain the basis for his findings, or relate them to the offenses for which he was imposing sentence on defendant. Indeed, the judge never discussed the facts of the offense at all. The Supreme Court has made plain that once the decision to impose an extended term has been made upon consideration of a defendant's record, the focus must shift to the offense for which defendant is being sentenced. Pierce, supra, 188 N.J. at 168; State v. Dunbar, 108 N.J. 80, 91-92 (1987). That did not occur here.

Instead, the judge focused on his "concerns for the safety of the community and the extent of [defendant's] record and the number of serious violent offenses. By violent, I mean the robberies and the car-jackings." Although there is no doubt that defendant has an extensive criminal record, the convictions on the two robberies and the single carjacking the court referred to occurred in 1981, 1984 and 1996, respectively, that is roughly between seventeen to thirty-two years before. The intervening convictions appear limited to third-degree theft offenses and municipal violations.

Further, in not discussing the facts of this robbery, the court did not note whether it considered that defendant committed the offense using a pellet gun he knew was inoperable. Although we do not presume to weigh that fact ourselves, we note the Supreme Court has used a similar example to illustrate the imperative that a sentencing court focus on the factual circumstances of the offense in evaluating the severity of the crime. See State v. Megargel, 143 N.J. 484, 500-01 (1996) ("[A] defendant who simulates having a gun by placing his hand in his pocket can be convicted of first-degree robbery. Such a crime, however, is very similar to second-degree robbery.") (Citation omitted).

Finally, we address the State's argument that because the top of the extended range was life imprisonment, "no serious claim can be advanced that the [forty-five-year] sentence is excessive or illegal." Defendant's argument is that given his age at sentencing, the forty-five-year NERA term is, in effect, a life sentence. See State v. Zuber, ___ N.J. Super. ___ (App. Div. 2015) (slip op. at 21-25) (discussing appropriateness of using life expectancy tables for sentencing of juvenile defendants). He calculates that he will be in "his late eighties" before becoming eligible for parole in light of the NERA parole ineligibility term. Because a sentencing court must consider the real time consequences of any sentence imposed, N.J.S.A. 2C:44-1c(2), we direct the sentencing court on remand to address this issue in the course of explaining its reasons for arriving at the sentence imposed. See Case, supra, 220 N.J. at 65; N.J.S.A. 2C:43-2e; State v. Dachielle, 195 N.J. Super. 40, 47 n.4 (Law Div. 1984). The court should also address defendant's arguments as to double-counting. See Vasquez, supra, 374 N.J. Super. at 267-68.

We affirm defendant's conviction but vacate his sentence and remand for defendant to be resentenced anew. We do not retain jurisdiction.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Defendant also complains about another comment in the prosecutor's summation by which he claims the prosecutor "intimated that during the course of the robbery, [the victims] were afraid that [defendant] would attack them unarmed because he was a physically larger person." Having reviewed that comment, we find the prosecutor was attempting to distinguish, albeit artlessly, between robberies committed with and without a weapon and was not referring to the facts of the crime. Defendant's trial counsel did not object to the comment. Judged in context, we find the statement unobjectionable. See State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005).