Judge’s scenarios were improper, but there was no objection
STATE OF NEW JERSEY,
Before Judges Wefing and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0286.
Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for the respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Tried to a jury along with co-defendant Stanley Jacques, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a term of five years of incarceration with an eighty-five percent period of parole ineligibility. Defendant appeals his conviction and sentence. For the reasons that follow, we affirm.
The factual background may be summarized as follows. Carlos Gabriel-Baez testified that on December 21, 2005, at approximately 6:00 p.m., he was riding his bicycle in the area of Salem Avenue in Elizabeth. Three individuals approached him, hit him, emptied his pockets, ripped his earring from his ear, threw him to the ground, removed some of his clothing and kicked him in the ribs and head. The assault lasted “[a]bout five, ten minutes.” Eventually, Baez was able to escape and ran home. When Baez arrived at his residence, he encountered police officers who had one of the individuals in their patrol car. The officers “took [Baez] to see the other one that was arrested.” Baez recognized these individuals as two of the three people who had assaulted him.
In court, Baez identified defendant and Jacques as those two individuals. When asked if he had ever seen the defendants before, Baez answered, “I was working on that same street and I constantly have been going around there and I had seen them before.” On cross examination, Baez stated that he “used to work in a tire place in that street and [he] used to see them coming up and down that street.”
Baez testified that he was “scared” during the assault because he didn’t know “what [was] going to happen.” He further stated that he had pain in his ribs and permanent scarring, as well as pain in the earlobe that had been ripped when his earring was taken.
Elizabeth Police Officer Paul Camarinha testified that, as a result of information he received at approximately 6:00 p.m. on the date in question, he responded to an area in Elizabeth where he encountered and detained defendant. The officer transported defendant to Baez’s residence.
Elizabeth Police Officer James Szpond testified that he and his partner, Officer Luis Garcia, responded to the report of an incident at approximately 6:06 p.m. He observed three males who “began walking away from the area . . . very quickly[,]” when “it appeared that they noticed the squad car[.]”
Szpond and his partner exited their vehicle and detained one of the individuals, co-defendant Jacques, who was holding a set of keys in his hand. Szpond testified that, at the place where the three individuals were first spotted, the officers found “a bicycle and a pile of clothing.”
Baez arrived at the scene and identified Jacques as one of the individuals who had assaulted him. He also identified the keys, bicycle and clothing as his property, which was then released to him.
Defendant testified on his own behalf. He acknowledged that he was on Salem Avenue in Elizabeth at approximately 6:00 p.m. on December 21, 2005. Defendant stated that he was “by [himself]” and that co-defendant Jacques was “[u]p the street.” Defendant stated that he was on the street at that time selling drugs. Defendant then encountered Baez, whom he knew prior to that occasion.
When defendant was asked how he knew Baez, he responded, “Selling drugs . . . .” The prosecutor immediately objected. The judge excused the jury and conducted a voir dire. Defense counsel argued that defendant should be permitted to give this testimony to contradict Baez’s testimony that he only knew defendant from seeing him around the neighborhood. Defense counsel argued: “This is what these guys do and this is how they all know each other and it . . . defuses the babe in the woods innocence the victim tends to portray, especially when you look at the confusing and conflicting testimony he’s given in the inconsistent statements.”
Defendant testified further during the voir dire that Baez had approached him earlier in the day on December 21, 2005, and had purchased two “bottles” of crack cocaine for twenty dollars. Defendant testified that “[Baez] . . . came back around 6 o’clock on a bike[,]” to purchase more crack cocaine. Defendant “handed [the drugs] to him. [Baez] . . . grabbed [the drugs] out of [defendant’s] hand and started taking [them] away on the bike.” As Baez rode off, defendant “grabbed his hand, tried to get [the drugs] back. That is when [they] began tussling when [Baez] was on the bike.”
At the conclusion of the voir dire, the trial judge ruled that defendant would be permitted to testify about his drug transaction with Baez. The judge was “satisfied that the prejudicial impact [did] not outweigh the probative value . . . .”
Defendant then resumed testifying before the jury, and stated that he had sold drugs to Baez on at least three or four prior occasions. He further testified, as he had on voir dire, that Baez approached him earlier in the day on December 21, 2005, and purchased crack cocaine for twenty dollars, and that Baez returned at 6:00 p.m. on his bike to purchase additional drugs. Defendant described how Baez grabbed the drugs out of defendant’s hand and tried to take off on his bicycle without paying, and how defendant and Baez then “began tussling while he was . . . still on the bike.” Defendant stated that Baez “tried to steal” the drugs from him, and “tried to take [them] out of [defendant’s] hand and take off on his bike.”
Defendant testified that Baez “got off the bike and [they] began pushing and shoving. After that . . . is when the fight started.” Jacques and a third individual “named Marcus that [defendant] knew from . . . around the neighborhood[,]” joined in the fight.
Defendant admitted punching and kicking Baez, but denied taking anything from him. Defendant testified that Baez was “fighting back and yelling . . . all kinds of stuff in Spanish.”
When defendant saw a marked police car, he “[s]tarted walking away[,]” because he “was selling drugs.”
On appeal, defendant raises the following arguments for our consideration:
THE COURT’S ACCOMPLICE LIABILITY CHARGE BOLSTERED THE STATE’S CASE AND DENIED [DEFENDANT] A FAIR TRIAL BECAUSE IT WAS NOT TAILORED TO THE FACTS OF THE CASE. (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING [DEFENDANT] TO A DOWNGRADED SENTENCE
In a pro se supplemental brief, defendant raises the following additional argument:
[THE] JURY ERRED WHEN IT CONVICTED DEFENDANT . . . OF ROBBERY BASED ON THE TESTIMONY OF CARLOS BAEZ.
Having considered these arguments in light of the record and the applicable law, we find them to be without merit.
Defendant’s contention that the trial judge erred in charging the jury on accomplice liability is raised as plain error, as defendant lodged no objection to this instruction at trial. Pursuant to that standard, defendant must demonstrate that the error was “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Where, as here, there was a failure to object, we may presume that counsel considered the instructions adequate as given. “It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.” State v. Macon, 57 N.J. 325, 333 (1971).
Defendant’s specific complaint regarding the accomplice liability charge is not addressed to the instructions on the elements of such liability. Rather, defendant challenges three “scenarios” that the judge gave the jury, which were intended to be examples of accomplice liability. The specific language at issue is as follows:
Let me now explain how accomplice liability may apply to the testimony in this case. And in recalling this testimony, remember, I’m just giving you — I’m not saying that this is how you should find, but I’m giving you possibilities how you could apply this accomplice liability to the testimony in this case.
If you found, for example, the testimony of Carlos Baez to be credible and believable and you found the defendant Donofrio’s testimony to be not credible in only he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting the defendant.
Under the same scenario you may find that Baez was not detailed enough as to what each defendant did, but if the testimony of the police officer, that Jacques was found with the keys, convinced you that it was only after the assault was long concluded that Jacques decided to take Baez’ property. In short, there are a large variety of different findings you could make depending upon your findings as to the defendants in this case and as to the mental state you find of each defendant.
You m[a]y find the testimony of Baez to be credible and believable and find that they both agreed to commit the offense of robbery. These are all possibilities that you could find, depending upon your findings of fact and your findings as to the mental state of the defendants.
Early in its deliberations the jury requested re-instruction on accomplice liability. In re-charging the jury, after addressing the elements of accomplice liability, the trial judge reiterated his “scenarios” as follows:
For example, if you found the testimony of Carlos Baez to be credible and believable and you found Donofrio’s testimony to be only credible in that he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting [Baez] or that Jacques did not join in the assault upon Baez, but decided only after the assault to take advantage of the situation and to deprive Baez of his property. You might also conclude that Donofrio engaged in a physical altercation with Baez, but only to regain his crack cocaine and, therefore, committed no offense or, at worst, a simple assault, but that Jacques seeing the altercation joined in it with the intent to deprive Baez of his property and he is, therefore, guilty of robbery by his own conduct.
Immediately after giving these examples, the trial judge further instructed the jury as follows:
Now, I’m not suggesting, in any way, that you make those findings. I’m just trying to give you examples of how the testimony — how the verdicts could change depending upon your findings as to the mental state of each individual and whether or not there actually was a robbery or an altercation, as described by Carlos Baez.
Remember, you are the sole and exclusive judges of the facts and of the credibility of the witnesses, and based upon your findings you are entitled to believe all of a witness’ testimony, part of it or none of it. In short, there are a variety of different verdicts that you could return, but they depend upon your findings not only as to each defendant’s conduct, but also their mental state.
Defendant argues that these “scenarios” are “problematic” because they (1) “do not support the defense theory that both defendants engaged in assault but not robbery”; (2) “they substantiate the credibility of the [S]tate’s witnesses only, and not the [defendant]”; and (3) “they suggest that the option of acquittal was merely an afterthought that the court was obligated to provide, as opposed to a viable option worth considering.”
We acknowledge that these “scenarios” were extraneous and unnecessary elements of an otherwise proper jury charge on accomplice liability. We conclude, however, that these “unchallenged” comments did not rise to “plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).
In his initial charge, the judge instructed the jury that:
You, and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness. Regardless of what [c]ounsel says or what I may say or have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts.
Moreover, as noted earlier, the judge expressly prefaced his “scenarios” to the jury with the disclaimer that he was offering them “possibilities” as to how the jury “could apply . . . accomplice liability to the testimony in this case.” The judge expressly told the jury that he was not “saying that this [was] how [the jury] should find . . . .”
When the judge re-charged the jury in response to their question, he reiterated that he was giving them “examples” only; and the judge repeated the instruction as to the exclusive role of the jury in weighing the evidence and assessing credibility.
Under these circumstances, we consider the comments challenged here to be mere surplusage that do not rise to the level of plain error. R. 2:10-2.
Defendant next contends that the trial judge erred in failing to sentence him to a term of incarceration appropriate to a third-degree crime.
N.J.S.A. 2C:44-1(f)(2) provides:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
Here, the trial judge found that aggravating factors number two, “[t]he gravity and seriousness of harm inflicted on the victim[,]” and number nine, “[t]he need for deterring the defendant and others from violating the law” applied. N.J.S.A. 2C:44-1(a)(2) and (9). The judge found three mitigating factors applicable: number seven, “[t]he defendant has no history of . . . criminal activity[,]” number nine, “[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense,” and number ten “[t]he defendant is particularly likely to respond affirmatively to probationary treatment[.]” N.J.S.A. 2C:44-1(b)(7), (9) and (10).
The trial judge found that, notwithstanding the substantial support defendant received from family and friends, “what [defendant] was to them was not the same person he was on the street, even by his own admission . . . . [S]o the good things they say about him are somewhat mitigated by his own admission.” The judge also found that defendant did not admit his guilt or take responsibility “at this time[,]” but stated that he did not “hold that against [defendant] . . . .”
In sum, the trial judge was not “clearly convinced” that the three mitigating factors “substantially” outweighed the two aggravating factors and, therefore, the judge did not sentence defendant to a third-degree term. N.J.S.A. 2C:44-1(f)(2). Our review of the record convinces us that the judge’s analysis of the aggravating and mitigating factors was “based upon competent credible evidence in the record . . . .” State v. Roth, 95 N.J. 334, 364 (1984). We note that the State requested a sentence of seven years. The judge nonetheless sentenced defendant to a term of five years, which is at the bottom of the range for a second-degree offense.
Finally, we reject as wholly without merit defendant’s contention in his pro se supplemental brief that the jury erred when it convicted him based on the testimony of Baez. The trial judge granted defendant’s request to testify as to the nature of the relationship between defendant and Baez, namely that Baez had purchased drugs from defendant on several occasions and that a drug transaction was the basis for the incident on the night of December 21, 2005. The credibility of that testimony was within the province of the jury to assess. R. 2:11-3(e)(2).