NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4919-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDDIE MARTIN, a/k/a JUDY MARTIN and EDWARD MARTIN,
Defendant-Appellant.
____________________________
Submitted August 1, 2017 – Decided August 9, 2017
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 15-05-0838.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Jeffery St. John, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Eddie Martin appeals from his convictions of
burglary and theft, and possession of burglar's tools following a
jury trial. After a review of his contentions in light of the
record and applicable legal principles, we affirm.
The facts as presented at trial can be summarized as follows.
A witness testified that, as he was standing in the parking lot
where he worked, he observed a man, identified as defendant, moving
among the parked cars, "trying to open car doors" and "break into"
the vehicles. The witness called 9-1-1 and described defendant
as a black male wearing a face mask and a gray hoodie with a light
jacket over it.
Asbury Park Police Officer Michael Boone responded to the
9-1-1 call. When he arrived at the parking lot, he observed
defendant crouching down between the parked vehicles. He described
defendant as wearing gray pants, a gray jacket and hat, and he was
carrying a white bag. Boone decided to detain defendant by placing
him in the patrol car while waiting for additional officers, and
as he patted him down, he found a screwdriver in defendant's
pocket.
Upon his inspection of the parking lot, Boone found a black
car with a smashed window. The owner of the car was located, and
after looking inside her vehicle, she reported that she was missing
a white jacket, several bracelets, sunglasses, and a necklace.
2 A-4919-15T3 The white jacket was found in the bag that defendant was carrying,
and the victim observed that the jacket had bloodstains on it.
Her necklace and sunglasses, as well as several other items, were
found in the back of the patrol car after defendant was asked to
step out and placed under arrest.
Another owner of a car in the parking lot reported that the
soft top to her Jeep had been partially removed, there was damage
to the inside of her car, and bloodstains on the seat.
Police Office Lemar Whittaker also responded to the 9-1-1
dispatch. When he arrived on the scene, he observed defendant
sitting in the back of the patrol car wearing a light gray jacket,
gray hoodie and a gray hat. Boone showed him the white bag
containing the white jacket.
Whittaker testified that after defendant was arrested, he
found various items of jewelry on the floor of the patrol car and
stuffed between the seats where defendant had been sitting,
including the necklace and sunglasses later identified by the
victim as hers.
After noticing that there were surveillance cameras on the
building pointed toward the parking lot, Whittaker asked to view
the recordings. He testified that the surveillance showed a
"subject fitting the description of [defendant] in the area of the
3 A-4919-15T3 vehicles, [walking] up toward the camera holding a white bag
. . . . It appeared to be the same plastic bag that we had."
Although both officers testified that their patrol cars were
equipped with motor vehicle recording cameras (MVR), they did not
retain the recording.1 Whittaker also stated that they did not
recover a face mask at the scene.
Officer Thomas Gogan was responsible for transporting
defendant to the police station after his arrest and processing
him. He described defendant as wearing a gray winter hat, a black
and gray coat with a gray hoody underneath and gray sweatpants.
When defendant removed his outer clothing, a blue piece of glass
fell out of his hood; the officer identified it as a piece of
motor vehicle window glass. Defendant also had two bracelets and
a ring in his possession. Gogan noticed that there was blood on
defendant's hand, which he photographed.
Defendant was convicted of several burglary and theft
charges, as well as disorderly persons possession of burglar's
tools. He was sentenced to an aggregate term of five years
imprisonment with a two-and-one-half year period of parole
ineligibility for the burglary conviction.
1 Whittaker testified that his MVR would not have contained any footage as it was only activated by the use of the emergency lights. He did not turn on his emergency lights as he responded to the scene.
4 A-4919-15T3 On appeal, defendant presents the following issues:
POINT I: THE OFFICERS' LAY TESTIMONY THAT MARTIN MATCHED THE DESCRIPTION OF THE SUSPECT VIOLATED STATE V. MCLEAN, 205 N.J. 438 (2011). (Not Raised Below).
POINT II: FAILURE TO CHARGE THE ADVERSE INFERENCE AND THIRD PARTY GUILT INSTRUCTIONS, REQUESTED BY DEFENSE, DENIED MARTIN DUE PROCESS AND A FAIR TRIAL.
A. Because Failure to Turn Over the MVR Recordings was a Discovery Violation, the Court Erred in Denying Defendant's Request for an Adverse Inference Charge.
B. Because the Defendant's Theory of the Case was that a Third Person Committed the Burglaries, and Because this Theory was Supported by the Record, the Court Erred in Denying the Requested Third-Party Guilt Instruction.
POINT III: FAILURE TO CHARGE THE LESSER- INCLUDED OFFENSE OF CRIMINAL TRESPASS, SUPPORTED BY THE EVIDENCE AT TRIAL, REQUIRES REVERSAL. (Not Raised Below).
POINT IV: THE DENIAL OF MARTIN'S REASONABLE REQUEST FOR AN ADJOURNMENT DENIED HIM DUE PROCESS AND A FAIR TRIAL.
POINT V: THE CUMULATIVE IMPACT OF THE ERRORS DENIED MARTIN DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
POINT VI: IMPOSITION OF THE MAXIMUM SENTENCE WAS MANIFESTLY EXCESSIVE, REQUIRING A REMAND FOR RESENTENCING.
5 A-4919-15T3 During the trial, Officer Whittaker presented the following
testimony:
Q: And when you proceeded to that location, what happened when you got there?
A: I met with Officer Boone who's already on location. He stated to me that he had a subject fitting the description detained in his vehicle.
Q: And were you able to observe that subject?
. . . .
A: He fit the description. He had a light gray jacket, the gray hoody underneath and a gray hat.
Q: And what if anything did that surveillance show?
A: It showed a subject fitting the description of Mr. Martin in the area of the vehicles, and also walk up towards the camera holding a white bag that said "thank you" on it. It appeared to be the same plastic bag that we had.
Q: Officer, can you describe to us what we're seeing [in the surveillance tape].
A: You're seeing the subject fitting the description of what was given out by dispatch walking in the parking lot where the Jeep was carrying a white plastic bag, seemingly to peer in the windows.
Q: And, officer, was that subject wearing the same outfit as the subject in the patrol car?
6 A-4919-15T3 A: Yes.
Defendant argues that this testimony exceeded the limits of
the lay testimony that police officers may present and violated
the precepts established in State v. McLean, 205 N.J. 438 (2011).
He contends that the officer improperly opined that defendant
matched the burglary suspect's description.
As there was no objection to the line of testimony during
trial, our review is under the plain error standard. R. 2:10-2.
We reverse only if the error was "clearly capable of producing an
unjust result." State v. Miller, 205 N.J. 109, 126 (2011)
(quoting R. 2:10-2; State v. Walker, 203 N.J. 73, 89-90 (2010)).
Whittaker was presented as a lay witness. Therefore, his
testimony was governed by N.J.R.E. 701; it must be based on the
witness' perception and assist the jury in performing its function.
"[P]erception . . . rests on the acquisition of knowledge through
use of one's sense of touch, taste, sight, smell or hearing."
McLean, supra, 205 N.J. at 457 (citing State v. Labrutto, 114 N.J.
187, 199-200 (1989) ("permitting lay opinion based on
observation")).
In McLean, our Supreme Court reiterated that a police officer
is "permitted to set forth what he or she has perceived through
one or more of the senses," id. at 460 (citations omitted), and
7 A-4919-15T3 describe for the jury what the officer saw and did. The officer
may not opine as to what he or she "believed," "thought," or
"suspected" but may provide a recitation of facts of which he or
she has first-hand knowledge. Ibid.
Here, Whittaker was not giving an opinion as to defendant's
guilt. He was asked questions regarding the physical
characteristics and clothing worn by the possible suspect; he
described the man and the clothing he had seen in person and on
the surveillance tapes, and advised that it was similar to the
description of the suspect and his attire provided by the 9-1-1
caller. The officer's testimony as to why he approached defendant
was properly part of his factual recitation. He did not testify
or otherwise suggest that defendant was the man who had broken
into the vehicles and taken the victim's property, which would
have been improper lay testimony.
During the charge conference, defense counsel requested that
the court issue an adverse inference charge for the officers'
failure to maintain the MVRs as evidence. Counsel conceded the
recordings had not been requested during discovery.
The judge declined the request, stating that defendant had
never requested that the MVRs be preserved as evidence, and there
were no proofs that the MVRs were running at the time of these
events.
8 A-4919-15T3 Defendant relies on State v. Dabas, 215 N.J. 114 (2013) to
support his argument that the trial judge abused his discretion
in his decision not to issue the adverse inference charge. We do
not find Dabas to be instructive to the circumstances here. In
Dabas, the State's investigator took copious notes during a two-
hour pre-interview. Id. at 123. Thereafter, a fifteen minute
recorded statement was taken from Dabas. Id. at 124. In the
inquiry, the investigator primarily used leading questions based
on the defendant's pre-interview answers memorialized in the
investigator's handwritten notes. Ibid. He subsequently prepared
a typewritten final report that he used during his trial testimony.
Id. at 123. The investigator advised that he had destroyed his
handwritten notes a year after defendant's indictment. Ibid. The
trial judge denied defendant's request to issue an adverse
inference charge. Id. at 127.
The Court found the prosecutor violated the rule governing
discovery, Rule 3:13-3(b), in not providing the pre-interview
notes to the defense after the indictment and in the notes'
destruction thereafter. Id. at 138. The Court stated that an
adverse inference charge was a permissible remedy for a discovery
violation, and under the circumstances of Dabas, it was an abuse
of discretion for the judge not to have given the charge. Id. at
141.
9 A-4919-15T3 We are without doubt that an MVR is subject to discovery. R.
3:13-3(b)(1)(A) (stating that discovery shall include video and
sound recordings). In this instance, however, defendant never
requested that the State ensure the preservation of any recordings
that might exist. It is undisputed that the issue was never raised
until the conclusion of the trial during the charge conference.
If defendant wished to assert a violation of the discovery rules,
he needed to do so in a more timely manner so that the court could
address the issue and determine the appropriate sanction, whether
it be a directive to produce the recordings or a more severe
measure.
There were insufficient proofs presented here that recordings
existed and that they would yield any relevant information. And,
unlike Dabas, there were no proofs that the State or the police
officers acted intentionally or purposefully in their failure to
preserve the MVRs. We are satisfied, for all of the stated
reasons, that the trial judge did not abuse his discretion in
declining to charge an adverse inference instruction.
We also find meritless defendant's argument that the trial
judge erred in denying his request to give a third-party guilt
jury instruction. Defense counsel supported the request by arguing
that defendant did not match the description given by the 9-1-1
10 A-4919-15T3 caller and that there was sufficient evidence presented that a
third person had committed the burglaries.
In declining the defense request, the judge stated that
counsel could argue to the jury that someone else committed the
crimes and that the State had not met its proofs as to defendant's
guilt. He further noted that the identification charge he intended
to use contained similar language to that of third-party guilt.
That charge on identification instructs the jury that the "burden
of proving the identity of the person who committed the crime is
upon the State." Model Jury Charges (Criminal), "Identification:
In-Court And Out-of-Court Identifications" (effective Sept. 4,
2012). The charge reinforces the tenet that the defendant does
not have the burden to show that the crimes were committed by
someone else.
An accused has a constitutional right under the due process
clause of the Fourteenth Amendment to offer evidence of third-
party guilt. See Chambers v. Miss., 410 U.S. 284, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973); State v. Koedatich, 112 N.J. 225, 297
(1988) (citations omitted). Defendant does not argue that he was
deprived of this opportunity during the trial; he contends, rather,
that the judge should have issued a charge to the jury on third-
party guilt. We disagree.
11 A-4919-15T3 As an affirmative defense, the trial court is only required
to instruct the jury on the defense of third-party guilt where
there is a "rational basis" to do so based on the evidence. State
v. Walker, 203 N.J. 73, 87 (2010). Here, there was no evidence
presented as to a third party. A description of a man trying to
break into cars in a parking lot was provided by a 9-1-1 caller.
The police arrived on the scene and encountered only defendant.
The officers provided a description of defendant and his clothing.
Defendant had in his possession the white bag that was being
carried by the individual in the video surveillance of the parking
lot. The victim's stolen items were found in the bag and on
defendant's person.
Defense counsel argued to the jury in her summation the
inconsistencies in the testimony presented by the State and the
mistakes that the police made in their investigation and
identification of defendant. It remained the province of the jury
to determine whether defendant was the person who had committed
the alleged crimes. The court did not abuse its discretion in not
issuing the third-party guilt charge.
We turn to defendant's argument that the trial court erred
in not charging the jury sua sponte with the lesser included-
offense of criminal trespass. The obligation to instruct the jury
on lesser-included offenses arises "only if counsel requests such
12 A-4919-15T3 a charge and there is a rational basis in the record for doing so
or, in the absence of a request, if the record clearly indicates
a charge is warranted." State v. Denofa, 187 N.J. 24, 42 (2006)
(second emphasis added) (citations omitted). To be warranted,
"the facts adduced at trial [must] clearly indicate that a jury
could convict on the lesser while acquitting on the greater
offense." State v. Jenkins, 178 N.J. 347, 361 (2004). And, for
the record to clearly indicate a lesser-included charge is
warranted, the evidence must be "jumping off the page." Denofa,
supra, 187 N.J. at 42.
Burglary requires that a person without authority enter a
structure with the intent to commit an offense. N.J.S.A. 2C:18-
2(a)(1). Criminal trespass does not require that the person have
an intent to commit a crime. N.J.S.A. 2C:18-3(a). If a factual
dispute exists as to whether the defendant had a purpose to commit
an offense, trespass should be charged. See State v. Singleton,
290 N.J. Super. 336, 341-342 (App. Div. 1996).
There were no facts presented to the jury that defendant
broke into the victim's car for any purpose other than to steal
items from it. Defendant has not demonstrated that the failure
of the judge to charge criminal trespass sua sponte was "clearly
capable of producing an unjust result." R. 2:10-2.
13 A-4919-15T3 Just prior to jury selection, defendant requested an
adjournment. His counsel stated that defendant had been struck
in the face and his eye was swollen and partially closed. Counsel
stated: "His face is disfigured and he's not comfortable going
forward today." In denying the request, the judge noted that
defendant had been in jail on these charges for over a year. The
court had blocked off the week for this particular trial and
advised that due to scheduling, the matter would not be reached,
if adjourned, until at least the fall.2 The judge stated: "So for
his protection, to have him have his day in court in a reasonable
period of time, I'm going to move forward." He also noted that
he had not noticed the injury to defendant's eye until advised of
it. He said that unless it had been pointed out to him he would
not have seen it as defendant was dark-skinned. The judge believed
that the jury might not notice the injury either if it was not
pointed out to them. Nevertheless, the judge offered to give a
curative instruction to the jury which defendant accepted.
We review a motion for an adjournment under a deferential
standard. State v. Miller, 216 N.J. 40, 65 (2013). Whether to
grant a trial adjournment rests within the sound discretion of the
trial court. State v. Smith, 87 N.J. Super. 98, 105 (App. Div.
2 The trial began on February 2.
14 A-4919-15T3 1965). We see no abuse of discretion. The judge explained that
the trial had been scheduled for that particular week, defendant
had been in jail for over a year and if the matter were adjourned,
it would not be reached again for another eight months or perhaps
longer. This rational explanation supported the court's decision.
Furthermore, the judge advised the jury that defendant had been
in an accident the day before in which he had sustained injury to
his eye. He instructed: "[Y]ou are not to utilize that injury in
any way in determining the verdicts in this case."
We briefly address defendant's contention that his sentence
was excessive. Our review of sentencing determinations is limited,
and is governed by the "clear abuse of discretion" standard. State
v. Miller, 205 N.J. 109, 127 (2011); State v. Roth, 95 N.J. 334,
363 (1984). We are bound to uphold the trial court's sentence,
even if we would have reached a different result, unless "(1) the
sentencing guidelines were violated; (2) the aggravating and
mitigating factors found . . . were not based upon competent and
credible evidence in the record; or (3) "the application of the
guidelines to the facts . . . makes the sentence clearly
unreasonable so as to shock the judicial conscience." State v.
Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at
364-65); see also State v. Bieniek, 200 N.J. 601, 608 (2010);
State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
15 A-4919-15T3 We discern no abuse of discretion in the imposed sentence.
Defendant acknowledged his lengthy criminal history and the
leniency he had been accorded in the past. These offenses had
been committed within months of his release from prison on burglary
convictions. The judge properly explained his weighing of the
aggravating and mitigating factors, and the sentence was within
the guidelines.
Affirmed.
16 A-4919-15T3