Opinion
DOCKET NO. A-1896-12T3 DOCKET NO. A-1911-12T4
10-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH R. BANKS, a/k/a KEVIN BANKS, RAQUAN BANKS, EDDIE JOHNSON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE NANCE, a/k/a PERNELL L. DARBY, MARK DAVIS, KNOTT KNOTT, ALVIN MANCE, SHAUNDY MYRICK, GHENARDI NANCE, KEVIN NANCE, ANDRE A. STARKS, ASMAR STARKS, NATHAN L. THOMAS, SHUNDY MYRICK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellants in A-1896-12 and A-1911-12 (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief for appellant in A-1896-12; Michele A. Adubato, Designated Counsel, on the brief in A-1911-12). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Christopher L. DeSimone, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant Andrew Nance in A-1911-12 filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0206. Joseph E. Krakora, Public Defender, attorney for appellants in A-1896-12 and A-1911-12 (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief for appellant in A-1896-12; Michele A. Adubato, Designated Counsel, on the brief in A-1911-12). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Christopher L. DeSimone, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant Andrew Nance in A-1911-12 filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendants Kenneth R. Banks and Andre Nance were found guilty of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). Banks was also convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). After denying defendants' motion for a new trial, the judge granted the State's motion to impose extended terms of imprisonment on each defendant.
The judge merged the weapons offenses into the robbery convictions and sentenced Banks to an extended term of imprisonment of thirty years, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a consecutive extended term of twenty years, with a ten-year period of parole ineligibility, on the eluding conviction. As to Nance, the judge imposed an extended term sentence of sixty years, subject to NERA.
We have consolidated defendants' appeals for the purpose of issuing a single opinion. Banks raises the following points for our consideration:
POINT I
THE ITEMS SEIZED FROM BANKS' CAR PURSUANT TO A WARRANTLESS SEARCH OF HIS VEHICLE SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF AN ILLEGAL SEARCH.
A. Because no exigency existed at the time of the search, the entry into the vehicle was unconstitutional.
B. Alternatively, because Officer Cifuentes lacked probable cause to associate the items in the car with criminal activity, the seizure of these items was unconstitutional.
C. The State failed to show by clear and convincing evidence that the items would have been inevitably discovered.
POINT II
THE MANY INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED [] BANKS DUE PROCESS AND A FAIR TRIAL. (Partially raised below)
A. The prosecutor's comments evoking the patriotism of the jurors, highlighting the vulnerabilities of the victims, and suggesting that justice required convictions of the defendants denied Banks a fair trial. (Not raised below)
B. The prosecutor's characterization of the defendants as dangerous people played on the jurors' fear and amount to prosecutorial misconduct. (Partially raised below)
C. The prosecutor's comments that Banks intended to mislead the jury were highly prejudicial where the case turned on the credibility of Banks' testimony. (Not raised below)
Nance raises the following points on appeal:
POINT III
THE ADMISSION OF HEARSAY STATEMENTS IN THE FORM OF THE CALL FROM DISPATCH AND STATEMENTS MADE BY MS. ALLEN, A NON-TESTIFYING WITNESS, VIOLATED BANKS' CONSTITUTIONAL RIGHT TO CONFRONTATION.
POINT IV
THE STATE'S FAILURE TO TURN OVER EXCULPATORY EVIDENCE TO DEFENSE COUNSEL DENIED BANKS AN OPPORTUNITY TO IMPEACH THE TESTIMONY OF THE OFFICERS, DEPRIVING HIM OF DUE PROCESS AND A FAIR TRIAL.
POINT V
THE CUMULATIVE IMPACT OF THE ERRORS DENIED BANKS A FAIR TRIAL. (Not raised below)
POINT VI
BANKS' SENTENCE IS ILLEGAL BECAUSE IT VIOLATES THE PLAIN LANGUAGE OF N.J.S.A. 2C:44-5(a)(2), WHICH PROHIBITS THE IMPOSITION OF TWO EXTENDED TERMS.
POINT I
THE WARRANTLESS SEARCH OF THE SILVER VEHICLE VIOLATED [NANCE]'S RIGHT TO BE FREE FROM UNLAWFUL SEARCH AND SEIZURE GUARANTEED BY THE NEW JERSEY AND FEDERAL CONSTITUTIONS.
POINT IIIn a pro se supplemental letter brief, Nance contends that his sentence was "illegal," and the judge incorrectly instructed the jury regarding the elements of robbery.
THE ADMISSION OF THE OUT OF COURT AND IN COURT IDENTIFICATION BY VANESSA MORALES WAS ERROR.
POINT III
THE ADMISSION OF HEARSAY STATEMENTS MADE BY INDIVIDUALS NOT CALLED AS WITNESSES VIOLATED [NANCE]'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
POINT IV
CERTAIN CONDUCT BY THE PROSECUTOR WAS GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially raised below)
POINT V
THE COURT ERRED IN REFUSING TO GIVE THE ADVERSE INFERENCE JURY INSTRUCTION FOR FAILURE TO PRESERVE NOTES OF THE POLICE.
POINT VI
[NANCE]'S NEW TRIAL MOTION SHOULD HAVE BEEN GRANTED.
POINT VII
THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON [NANCE] OF SIXTY (60) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below)
POINT VIII
THE AGGREGATE ERRORS DENIED [NANCE] A FAIR TRIAL. (Not raised below)
We have considered the arguments in light of the record and applicable legal standards. We affirm defendants' convictions and the sentence imposed on Nance. For reasons explained below, the State concedes that Banks's sentence was inappropriate, and we therefore vacate his sentence and remand the matter to the trial court for re-sentencing.
I.
The State alleged that on October 17, 2009, at around 5:00 p.m., defendants robbed fourteen-year-old J.M., who was walking through a park in Elizabeth, with her twelve-year-old sister V.M. and their mother, G.S.-M. The family had been shopping at a clothing store, Easy Pickins, and J.M. was carrying her purchases in a store-labeled shopping bag. As they entered the park, a man approached the family and asked for money. They rejected him and kept walking, with J.M. lagging behind the others.
At some point, another man stepped in front of her. While one man held J.M. at gunpoint, the other took the bag of merchandise, J.M.'s cell phone, the phone charger, jewelry and her transit bus card. J.M. told her mother and sister to run. V.M. encountered some people on the street and asked them to call the police; after the men fled, J.M. also used her mother's phone to call the police herself. Officers responded to the park within ten minutes.
J.M. provided police with a description of the two men. Later that evening at police headquarters, she, her sister and mother were shown photographic arrays in an attempt to identify the perpetrators. Although they all looked at photographs of both defendants, J.M. was able only to identify Banks's photograph, while V.M. only identified Nance's photograph and their mother did not select any photograph.
The motion judge conducted pre-trial evidentiary hearings on defendants' motions to suppress physical evidence seized without a warrant, and Nance's motion to suppress any out-of-court or in-court identification that followed from the allegedly suggestive photographic identification procedures. The judge ultimately denied both applications.
A.
Before us, both defendants challenge the denial of their motions to suppress the seizure of physical evidence without a warrant. We consider the arguments based upon the evidence adduced before the motion judge. State v. Tavares, 364 N.J. Super. 496, 502 (App. Div. 2003).
Elizabeth Police Officer Vincent Flatley testified that on October 17, 2009, at around 5:00 p.m., he and Officer Robert Scharpnick were dispatched to the park on the report of a child abduction, later revised to a report of an armed robbery. Upon arrival, Flatley was flagged down by several young women who said they had been robbed at gunpoint. The victims provided descriptions of the two men involved, noting that one wore a bandana on his head. Another person, Ms. Allen, witnessed the robbery and told Flatley and Scharpnick that "she saw the two males get into a small silver . . . grayish . . . car . . . that was either a Toyota or Honda."
As he was beginning his shift, Officer Hector Cifuentes heard Scharpnick's radio transmission advising that he was driving "behind a silver vehicle with temp tags with . . . suspects that fit the description of the armed robbery." Cifuentes and his partner, Humberto Alvarez, responded to Scharpnick's location as back up. When Scharpnick activated his overhead lights and siren, the silver car sped away, and Cifuentes gave chase. The car proceeded into Newark at a high rate of speed before the driver lost control, struck a street sign and another vehicle before coming to rest under an overpass, in what Cifuentes described as "a high crime area."
Cifuentes, his partner and three other officers exited their vehicles with weapons drawn and ordered defendants out of the car. As Nance was being handcuffed, Cifuentes observed a small black revolver nearby on the ground next to the passenger side of the car. Cifuentes seized it and determined it was "a starter['s] pistol." Banks was removed from the car's driver's side by other officers.
By now, a number of people were milling around the crash scene, including the occupants of the other vehicle involved in the accident. After Banks and Nance were handcuffed, Cifuentes observed "two Easy Pickin bags . . . and a green bandan[]a" on the backseat of the car. Cifuentes secured the items as possible evidence before the car was towed to headquarters. Cifuentes also found a bus pass while searching defendants. During processing, Cifuentes found Nance trying to "hide a . . . cell phone charger."
Later testimony revealed the bus pass was retrieved from Nance.
Cifuentes acknowledged that defendants could not have retrieved anything from the car once they were in custody. He also acknowledged that when he seized the items from the back seat, he was unaware whether they were the proceeds of the robbery. Cifuentes stated that no application was made for a search warrant.
At the conclusion of the testimony and following argument, the judge issued an oral opinion denying defendants' motions to suppress. Finding both officers credible, the judge concluded Scharpnick had a "reasonable articulable suspicion" to stop the vehicle, which "ripened into probable cause" to believe that the occupants were involved in the robbery once the vehicle fled. The judge also found that exigent circumstances justified a warrantless search of the vehicle because of the "high-speed chase" and the unknown individuals around the scene in a known "high-crime area." Additionally, the judge concluded that police had a reasonable basis to seize the vehicle and its contents as evidence of the crime of eluding, and therefore any evidence in the car would have inevitably been discovered.
Before us, defendants assert there was no exigency excusing the need to obtain a search warrant for the vehicle. Banks also argues that Cifuentes lacked probable cause to associate the items he seized from the car with any crime, and the State failed to meet its burden of proof under the inevitable discovery exception to the warrant requirement. We conclude the warrantless search of the vehicle was reasonable under the circumstances and affirm the denial of defendants' motions to suppress.
"Appellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" Id. at 425 (quoting Elders, supra, 192 N.J. at 244 (internal quotation marks omitted)). However, we review the motion judge's legal conclusions de novo. Ibid.
In State v. Pena-Flores, 198 N.J. 6, 20 (2009), the Court recognized that "[e]ven where . . . an arrested defendant has been secured, there may be justification to search a vehicle under the automobile exception." "The warrantless search of an automobile . . . is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28 (citing State v. Cooke, 163 N.J. 657, 670 (2000)). "The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle." Ibid.
Recently, the Court overturned Pena-Flores and returned to the standard for automobile searches enunciated in State v. Alston, 88 N.J. 211, 233 (1981). State v. Witt, ___ N.J. ___, ___ (2015) (slip op. at 15). The Court stated that its holding would "apply purely prospectively," and the holding in Pena-Flores would apply to motor vehicle searches, like the one at issue here, that took place prior to the decision in Witt. Id. at 54.
This case does not fit neatly into the automobile exception analysis, however, because the stop of defendants' vehicle was hardly "unexpected." As the motion judge noted, by eluding the officers, Banks was committing a crime. That makes the circumstances in this case most similar to those presented in State v. Minitee, 210 N.J. 307 (2012).
There, Fort Lee police received a report of an armed robbery in progress, and, upon arriving at the scene, were told by witnesses that a red SUV stopped at a nearby red light was involved, and its occupants were armed. Id. at 312. Police ordered the occupants out of the car. Ibid. One occupant complied and emerged from the van holding a gun and a purse, which he dropped to the ground before fleeing. Id. at 312-13. The vehicle, meanwhile, sped away when the light turned green. Id. at 313.
Police followed the SUV until it stopped on a dead end street, where the defendant and another passenger exited. Ibid. Although they claimed to be victims of a carjacking, police ordered both to lay on the ground while backup officers arrived. Ibid. Through the open passenger door, police saw rolls of duct tape, which they knew had been used to restrain victims of the robbery. Ibid. Police secured the vehicle and towed it to headquarters. Ibid. Without obtaining a warrant, police searched the SUV and found other incriminating evidence linking the defendant to the Fort Lee and other robberies. Id. at 314.
The Court reversed our judgment that had reversed the trial court's denial of the defendants' motion to suppress. Id. at 312. Noting that Pena-Flores dealt "specifically with a vehicle that had been stopped for an observed motor vehicle infraction," the Court stated "[h]ere, there were other factors, not relevant to the Pena-Flores factual context, which demonstrated that the Fort Lee police were, indeed, confronted with exigent circumstances." Id. at 322. These included the armed robbery itself, a search for its perpetrators that "spanned several municipalities," and the need to make sure all weapons used in the crime were found. Ibid.
Citing its earlier decision in State v. Martin, 87 N.J. 561, 570 (1981), the Court noted that Fort Lee police were in the throes of an active investigation and had an urgent need to determine whether the SUV contained weapons or other evidence of the crime. Id. at 323. The Court also concluded that conducting the warrantless search at headquarters after the SUV had been there for "some period of time[,]" was not "fatal to the validity of th[e] search[,]" because considering all the factors facing police at the time, their actions "were reasonable under the circumstances." Ibid.
Here, police suspected the vehicle's occupants were involved in a recent armed robbery. Defendants fled from a lawful attempted motor vehicle stop, exposing the public to great harm. After defendants crashed into another vehicle, Cifuentes observed a weapon next to their car. There were numerous people around the accident site, and police needed to make sure no other weapons were in the car. Cifuentes had a reasonable basis to conclude that the shopping bags, the baseball cap and the bandana were evidence of the robbery. Nothing more was required under the exigency of the situation, and the actions of Officer Cifuentes were entirely reasonable.
B.
The motion judge also conducted a Wade hearing at which J.M., V.M., Elizabeth police sergeant Michael Kurinzi, and Detectives Raul Delaprida and Franklin Idrovo testified. V.M. testified that when she selected Nance's photograph, she was 90% sure of her identification. At the conclusion of the testimony, Nance's counsel argued that the out-of-court identification of his client should be suppressed because officers involved in the investigation of the crime were also involved in the identification procedure.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The judge concluded the procedure was not so suggestive as to impugn the reliability of the identifications, and there was no "orchestrated part of government in order to focus the . . . attention on either one of the[] defendants." He ruled the out-of-court identifications were admissible. During trial before the jury, V.M. identified Nance as the person who held a gun to her sister's stomach during the robbery.
This in-court identification did not occur during the prosecutor's direct examination. Defense counsel directed V.M.'s attention to defendant, and asked if she had "identified" both defendants simply because they were seated at counsel table. She answered affirmatively. On re-direct, she specifically identified Nance.
Nance argues that the passage of time between the robbery and trial, the suggestibility of the out-of-court identification procedure and defendant's presence as "one of only two Afr[ican]-American males at counsel table," demonstrates V.M.'s out-of-court and in-court identifications were unreliable. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.
Although Nance cites extensively to State v. Henderson, 208 N.J. 208 (2011), for support, that decision does not apply to this case because V.M.'s out-of-court identification took place before Henderson was decided. See State v. Micelli, 215 N.J. 284, 287 (2013). Instead, the standards enunciated in State v. Madison, 109 N.J. 223, 232-33 (1988), apply. Ibid. In short, "[i]f the judge . . . determines that the [out-of-court] procedure was reliable, taking into account the totality of the circumstances, the out-of-court identification is admissible at trial." Id. at 292. There is no reason for us to disturb the judge's factual findings and conclusion regarding the reliability of V.M.'s out-of-court identification.
II.
We now consider the claims of error at trial. J.M. testified about the events surrounding the robbery and her out-of-court identification of Banks. She identified both defendants in court, as well as clothing seized from defendants when they were arrested and the bandana seized from the car as that which they wore at the time of the robbery. J.M. identified the starter's pistol Cifuentes recovered on the ground next to Nance, and the items Cifuentes seized from the car and Nance's person as the proceeds of the robbery. V.M. and G.S.-M. also testified, as did officers Scharpnick and Alvarez.
After defendants' motions for judgment of acquittal were denied, Banks testified. Banks admitted having prior criminal convictions and being released from prison about six months before the robbery, after having served a sentence for a first-degree offense. Banks testified that he was "hanging out with some friends" in Elizabeth and on his way home to Newark, when he gave a ride to Nance, a neighborhood friend he saw on the street. Nance had a bag in his hand when he entered the car. Banks admitted that when he provided police with a statement on the night of his arrest, he said he did not know Nance.
Banks panicked when police tried to stop the car because he was driving without a license and feared it would result in a parole violation or the loss of his car. Banks denied having any knowledge of the robbery or the gun eventually found.
A.
During direct examination, the prosecutor asked Scharpnick what information was "broadcast" by dispatch before he arrived at the park. Banks's counsel objected on hearsay grounds. The prosecutor responded by claiming he was not offering the evidence for "the truth of the matter," but only to "explain[] why the officer did what he did." The judge overruled the objection, and Scharpnick testified that he responded to an armed robbery where "victims had belongings taken from them by an armed suspect . . . , and they fled in a light silver vehicle." Defense counsel again objected when the prosecutor asked Scharpnick whether he received any information from dispatch "about the perpetrator's flight or mode of flight . . . ." Once again, the prosecutor argued the testimony was not being "offered for the truth of the matter asserted." The judge again overruled the objection, and Scharpnick testified regarding the "small, silver car."
The following colloquy occurred shortly thereafter:
Prosecutor: While on[] scene, did you encounter anyone else, any witnesses who have perhaps been around when this crime took place?
Scharpnick: I was approached by a witness.
. . . .
The prosecutor asked if Allen had conveyed information about the "actors," a description of the actors, and their "method of flight." The judge overruled defense counsel's objections, and the prosecutor continued by asking Scharpnick if "[b]ased on the information [he] had received earlier from headquarters, as well as from Ms. Allen, [was he] looking for anything in terms of any vehicle?" Another objection was overruled, and Scharpnick responded, "a small, silver . . . car."
Prosecutor: And when Ms. Allen came up to you, did she convey information to you?
Scharpnick: Yes, she did.
Both defendants argue this wholesale admission of hearsay testimony violated their rights under the Confrontation Clause and requires reversal. The State contends the evidence was properly admitted because it was not hearsay. Alternatively, the State argues there was no prejudice because other witnesses, particularly J.M. and V.M., testified to the same facts. We conclude that the evidence should not have been admitted, but the error does not raise a reasonable doubt in our minds that its admission led the jury to an unjust result. State v. Branch, 182 N.J. 338, 353 (2005).
Generally speaking, "a police officer . . . may testify that he went to the scene of a crime based 'upon information received,' in order to show that the officer was not acting in an arbitrary manner." Id. at 351 (quoting State v. Bankston, 63 N.J. 263, 268 (1973)). However, "both the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." Id. at 350 (citing Bankston, supra, 63 N.J. at 268-69). Here, of course, over defendant's objection, Scharpnick provided detailed information supplied to him by dispatch and Allen.
In In re J.A., 195 N.J. 324, 331 (2008), a police officer was permitted to testify regarding information supplied to him from a non-testifying witness, specifically a description of the robbers and their departure route. That information led to the arrest of the juvenile. Ibid. The Court held that the officer's testimony regarding what the witness told him was inadmissible under the hearsay rule, and its admission violated the Confrontation Clause. Id. at 340-41, 351.
Given this clear precedent, we agree with defendants that it was error to permit Scharpnick to testify about specific information supplied to him from both dispatch and the non-testifying witness, Allen. However, all of this information was already before the jury through the testimony of J.M., V.M. and their mother. Defendants vigorously cross-examined those witnesses. Under these circumstances, we cannot conclude that admission of the challenged testimony resulted in an unjust result requiring reversal. R. 2:10-2.
B.
Both defendants contend that the prosecutor's alleged egregious conduct denied them a fair trial. They cite to questions posed to Scharpnick during direct examination, the cross-examination of Banks, and the prosecutor's summation, including a comment regarding Nance's decision to absent himself from the courtroom just prior to summations. Although we find no merit to the claim regarding the cross-examination of Banks or the comment regarding Nance's absence, the other contentions cause concern.
Early in Scharpnick's testimony, the prosecutor asked if a dispatch call to a child abduction or an armed robbery was a "high priority," and whether based on his training, the officer would necessarily assume a "willingness" on the part of the perpetrators "to use the lethal weapon." He questioned Scharpnick about his concern for "the community's safety" in responding to such a situation. There was no objection by counsel for either defendant.
The prosecutor asked Scharpnick "[w]hat's the most common way a law enforcement officer is murdered in the line of duty?" Scharpnick replied, "[c]ar stop." The judge sustained Nance's objection, telling the prosecutor: "It's a bit much. Move on." When questioning Scharpnick about his interaction with Allen, the following colloquy occurred:
Prosecutor: Were you able to determine if [Allen] wanted to be involved at all?
. . . .
Scharpnick: She didn't want to be involved other than the information she gave me at the beginning of our conversation.At this point, the judge sustained defense counsel's objection. Despite this ruling, in summation, the prosecutor returned to the theme, highlighting for the jury that Allen "did not want to be involved," and noting the courage it would take to be a witness at trial, where "they know your name, they know where you live." When Banks's counsel objected after the summation, the judge offered to give a curative instruction, but counsel declined the offer. In his final instructions, however, the judge provided a Clawans charge regarding the State's failure to call Allen as a witness.
Prosecutor: Did she appear concerned?
Scharpnick: Yes.
Prosecutor: For her well[-]being?
Scharpnick: Yes.
State v. Clawans, 38 N.J. 162, 170 (1962). --------
Defendants point to other comments in the prosecutor's summation, which began with an invocation of Abraham Lincoln's second inaugural address. Telling the jurors that "[t]he end of government is one thing, . . . justice[,]" the prosecutor stated that the case was not about defendants but instead "about two little girls walking in the park, . . . who weren't even five feet tall," and their mother, "a janitor[,] who's been in America for [twenty] years." Later in summation, the prosecutor expressed his disgust with the crime, stating, "Is it reasonable and logical to rob young girls, put guns to them? Not where I grew up. That's just simply senseless, brutal violence. . . . This isn't about anything other than right or wrong. That's the bottom line. You do not do that to young girls period." Discussing issues of credibility, the prosecutor said that only one person, Banks, "g[o]t up here with the intent to lie to you, to mislead you."
The prosecutor completed his remarks by telling the jury that "[o]ther than serving your country in war, this is the most important thing you do." He continued, "Mr. Banks and Mr. Nance, and more importantly, those young girls, this is their day for justice and the [fourteen] of you become the law." Finally, telling jurors not to see Banks "in the calm of this courtroom," but rather with Nance committing the robbery, the prosecutor urged the jurors to "use [their] reason and [their] logic and . . . give those girls justice and . . . find [defendants] guilty." There was no objection to any of the summation comments, except as noted above.
While prosecutors are entitled to zealously argue the merits of the State's case, State v. Smith, 212 N.J. 365, 403 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013), they occupy a special position in our system of criminal justice. State v. Daniels, 182 N.J. 80, 96 (2004). "A prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83).
One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." Smith, supra, 212 N.J. at 407. When no objections are lodged, we review the issue under the plain error standard. See Daniels, supra, 182 N.J. at 95 (was "the error . . . 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached'") (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Consideration of whether the prosecutor committed plain error necessarily requires us to weigh the conduct against the strengths of the State's case. State v. Negron, 355 N.J. Super. 556, 578-79 (App. Div. 2002). See also State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005) ("When all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence.").
The prosecutor's summation comments, in particular, were inappropriate. We have not hesitated to criticize such rhetorical excesses that invite juror sympathy because of the youth and vulnerability of the victim. See, e.g., Roman, supra, 382 N.J. Super. at 58 (criticizing prosecutor's remarks that it was the duty of adults, including the jurors, to protect the child victim); State v. Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003) (same). Suggesting to jurors that it was their duty to convict so as to provide justice to the victims is even more egregious. See, e.g., State v. Pennington, 119 N.J. 547, 576 (1990) (improper to imply "jurors will violate their oaths if they fail to convict"); State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000) (suggestions that the jury should "send a message" through its verdict, or "'hold [defendant] . . . accountable' . . . were inappropriate, inflammatory and constitute[d] misconduct"); State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.) (implying jurors would violate their oaths unless they convicted defendant), certif. denied, 134 N.J. 485 (1993).
In this case, when objections were lodged during Scharpnick's testimony and after the prosecutor's summation, the judge either sustained the objections or offered to give a curative instruction. He ultimately gave an adverse inference charge in favor of defendants regarding Allen's absence as a witness. However, defense counsel never objected to most of the summation comments, thereby failing to provide the judge with an opportunity to address the obvious excesses.
Additionally, the strength of the State's case was overwhelming. Both defendants were identified shortly after the robbery through photographic identifications, and both were identified in the courtroom. When police attempted to stop their vehicle, defendants fled at high speed endangering the public at large. Police found a gun on the ground as Nance was removed from the car, and the proceeds of the robbery were found on the car's back seat. When all of the prosecutor's remarks are weighed against this mountain of evidence, we cannot conclude that defendants were denied a fair trial. Negron, supra, 355 N.J. Super. at 578-79.
C.
The remaining arguments regarding trial errors, and the contentions contained in Nance's pro se brief, lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following brief comments.
Nance argues the judge erred by refusing to give an "adverse inference" charge because Scharpnick admitted destroying his notes upon preparing his report. See Branch, supra, 182 N.J. at 367 n.10 (where the Court expressed its "displeasure" with the "practice of destroying contemporaneous notes"). The judge denied the request, noting that the preservation of contemporaneous notes by law enforcement was not required until the Court decided State v. W.B., 205 N.J. 588, 608 (2011). We agree.
Banks argues that the State's failure to produce a second Computer Aid Dispatch (CAD) report from the robbery until midway through the trial, combined with the judge's grant of only a short adjournment to investigate, requires reversal. He further contends that the judge should have granted his motion for a new trial on these grounds.
Our review of the record, however, reveals that it was never firmly established that the State failed to provide this second CAD report in discovery. Moreover, accepting arguendo defendant's assertion that it had not been produced, the judge asked defense counsel if he wanted a curative instruction when the report was referenced during Scharpnick's testimony. Counsel demurred and asked for some "additional time" to evaluate the document.
The judge adjourned trial for the balance of that day, and, when proceedings re-commenced the following day, Banks's counsel announced he was ready to proceed and would address any unresolved issues regarding the second CAD report through the cross-examination of Scharpnick and Alvarez. We find no error in the judge's handling of the issue, particularly since, even now, defendant cannot specifically identify any prejudice resulting from his late receipt of the CAD report.
Nance's argument that his motion for a new trial should have been granted, or both defendants' assertion of cumulative error requiring reversal, see, e.g., State v. Jenewicz, 193 N.J. 440, 473 (2008), need not be addressed in light of the above discussion.
III.
At sentencing, the State moved for a mandatory extended term of imprisonment, claiming both defendants' prior criminal records made them "repeat violent offenders" pursuant to N.J.S.A. 2C:43-7.1(b). As to Banks, the State requested that the judge impose a discretionary extended term on the eluding charge because Banks was a "persistent offender," as defined by N.J.S.A. 2C:44-3(a). In sentencing Banks, the judge imposed a mandatory extended term sentence on the robbery charge of thirty-years, subject to NERA, and a discretionary extended term sentence of twenty years on the eluding charge.
The State concedes in light of the Court's recent decision in State v. Robinson, 217 N.J. 594 (2014), that the imposition of both a mandatory and discretionary extended term was prohibited. In Robinson, id. at 598-99, the Court held that N.J.S.A. 2C:44-5(a)(2) prohibits imposition of a mandatory extended term and a discretionary extended term in the same sentencing proceeding. The State must choose which type of extended term sentence it requests the court to impose at a new sentencing proceeding. Id. at 612. We therefore vacate the sentence imposed on Banks and remand the matter to the trial judge for re-sentencing in accordance with the Court's guidance in Robinson.
As to Nance, the judge found aggravating factors three, six, and nine. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (a)(6) (the extent of defendant's prior record); and (a)(9) (the need to deter). He found no mitigating factors. N.J.S.A. 2C:44-1(b). Based upon Nance's prior convictions, the judge concluded defendant was "a repeat violent offender," citing N.J.S.A. 2C:43-7.1(b)(1) and (2), and also a "persistent offender," citing N.J.S.A. 2C:44-3(a). The judge imposed a sixty-year term of imprisonment subject to NERA.
While acknowledging he was eligible for an extended term, Nance contends that the judge failed to adequately analyze the applicable aggravating and mitigating sentencing factors, and, since there was an "absence of injuries to the victim," the sentence imposed was excessive. We disagree.
We begin by noting that if Nance qualified as a "repeat violent offender," an extended term sentence was mandatory, not discretionary. N.J.S.A. 2C:43-7.1(b). Yet, without explanation, in their briefs both the State and Nance treat the sentence imposed as a discretionary extended term sentence. We therefore only consider whether the judge mistakenly exercised his discretion in imposing an extended term sentence of sixty years.
"Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We assess whether the aggravating and mitigating factors "'were based upon competent credible evidence in the record.'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010) (internal quotation marks omitted)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bienek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Here, the aggravating sentencing factors were amply supported by the record. Defendant's prior criminal record spanned nearly thirty years and was marked by numerous violent offenses. The imposition of a sixty-year term of imprisonment was not a mistaken exercise of the broad discretion accorded the judge.
In A-1911-12, the judgment of conviction and sentence imposed is affirmed. In A-1896-12, the judgment of conviction is affirmed, but the sentence imposed is vacated and the matter is remanded to the trial court for re-sentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION