NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2111-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL M. WINTERS, a/k/a KING ALLAH, KING ALLAH, KINGNAZIM ALLAH, NAZIM A. KING, WINTERS M. MICHAEL, DAVID SMITH, MIKE WINTERS, DARNELL JON, and MICHAEL WINTERSMARVIN,
Defendant-Appellant. ___________________________________________
Argued May 9, 2017 – Decided August 3, 2017
Before Judges Messano and Grall.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-09-2933.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).
Kevin J. Hein, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Linda A. Shashoua, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
PER CURIAM
The grand jurors for Camden County charged defendants
Michael M. Winters and Matilda Marshall with committing five
crimes against one victim, Ms. Colon. Defendant was tried a
year after Marshall was sentenced, and the State moved to
dismiss the fifth count of the indictment, charging receiving
stolen property, N.J.S.A. 2C:20-7(a), prior to trial. The jury
found defendant guilty of first-degree kidnapping and conspiring
to commit that crime, N.J.S.A. 2C:13-1(b)(1), N.J.S.A. 2C:5-2,
and of robbery and conspiring to commit that crime, N.J.S.A.
2C:15-1(a)(1)-(2), N.J.S.A. 2C:5-2.
At sentencing, the court granted the State's motion to
dismiss the fifth count and the State's motion to have defendant
sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-
3(a). The court merged defendant's conspiracy convictions with
his convictions for kidnapping and robbery and imposed an
extended term sentence for first-degree kidnapping, forty-five
years' imprisonment, and a concurrent ten years' imprisonment
for second-degree robbery. Both sentences are subject to terms
of parole ineligibility and supervision required by N.J.S.A.
2C:43-7.2. The court also imposed the appropriate monetary
assessments and penalties, N.J.S.A. 2C:43-3.1 to -3.3.
2 A-2111-15T2 On appeal, defendant's counsel raises the following points:
POINT I
EVEN WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO THE STATE, THE EVIDENCE DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THAT MR. WINTERS FAILED TO RELEASE COLON UNHARMED IN A SAFE PLACE, AND HIS MOTION FOR JUDGMENT OF ACQUITTAL OF FIRST-DEGREE KIDNAPPING SHOULD HAVE BEEN GRANTED. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. I, ¶ 10.
POINT II
BECAUSE THE JUDGE FAILED TO CONDUCT A "PROBING INQUIRY" OF THE JURY IN LIGHT OF THE PROSECUTOR'S ACKNOWLEDGEMENT THAT, WHILE OUTSIDE THE COURTROOM THE MORNING OF THE TRIAL, A PUBLIC DEFENDER NOT INVOLVED IN THIS TRIAL MADE PREJUDICIAL COMMENTS WITHIN THE HEARING OF A JUROR, MR. WINTERS WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (NOT RAISED BELOW)
POINT III
THE AGGREGATE FORTY-FIVE-YEAR SENTENCE WITH EIGHTY-FIVE PERCENT PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
In his pro se supplemental brief, defendant argues:
POINT IV
THE STATE ERRED IN ALLOWING STATE WITNESS MARCIA COLON TO TESTIFY FALSELY AND INCONSISTENTLY AGAINST THE DEFENDANT DURING DEFENDANT'S TRIAL, IN WHICH HAD PREJUDICED THE JURY TO RENDER A GUILTY VERDICT VIOLATING MR. WINTERS 6TH AMENDMENT RIGHT TO A FAIR TRIAL.
3 A-2111-15T2 POINT V
THE COURTS ERRED IN PROHIBITING DEFENDANT'S ATTORNEY . . . THE OPPORTUNITY TO QUESTION THE DETECTIVES DAVID SEYBERT AND DETECTIVE RANDY SMITH REGARDING MS. COLON'S FIRST TWO STATEMENTS AND THE INCONSISTENCY OF THESE TWO STATEMENTS FOR THEY HAD NOT BELIEVED HER.
I.
Because the question of possible taint of the jury
empaneled arose prior to trial, we address that claim before
discussing the evidence supporting defendant's conviction and
sentence.
The jurors were selected and sworn on June 9, and the court
directed them to report for trial at 10:00 a.m. the next day.
The next morning, before trial commenced and in the presence of
defense counsel and on the record, the prosecutor told the court
that at about 9:00 a.m. an attorney not involved in this case
made remarks about defense counsel to the prosecutor in the
hallway near the courtroom and the elevator. The attorney who
made the comments was present when the prosecutor reported the
incident.
The prosecutor was concerned that a member of this jury
might have overheard the conversation, because one woman was
possibly close enough. He described the woman's distinctive
4 A-2111-15T2 outfit and said he was not certain whether she was serving in
this case or another being tried on the same floor that day.
The court knew another judge was conducting a jury trial
and had directed those jurors to report at 9:00 a.m. The
prosecutor, accompanied by a court aide, went to the other
courtroom. A civil trial was underway, and the woman the
prosecutor had seen was in the jury box.
On receipt of that information, the court concluded there
was no need to take additional action. The attorneys agreed and
acknowledged the court should do nothing more than share the
information with the judge conducting the other trial. Thus,
the trial court, defense counsel and the prosecutor who
conscientiously reported the potential problem, were all
satisfied there was no reason to suspect a member of this jury
had been exposed to comments having the capacity to influence
the verdict. State v. Loftin, 191 N.J. 172, 179-60 (2007).
Defendant now contends the court's response was
insufficient to protect his right to a trial before an impartial
jury untainted by extraneous information. We see absolutely no
reason to even suspect a juror serving in this case was tainted.
Defendant's objection, which is contrary to the position
defendant took in the trial court and raised for the first time
5 A-2111-15T2 on appeal, has insufficient merit to warrant any additional
discussion. R. 2:11-3(e)(2).
II.
The evidence presented at trial can be summarized as
follows. Ms. Colon planned to go to work on November 15, 2012.
She left her house in Camden wearing her uniform, a jacket and
coat, intending to take the 6:00 a.m. bus to a hotel in Cherry
Hill where she worked as a housekeeper. It was still dark and
cold when she arrived at the bus stop, and the corner store
behind the stop was still closed and gated. Defendant and
Marshall, whom Colon did not know, were nearby. No one else was
around.
Colon heard defendant say, "there she is." He then stood
by and watched, as Marshall approached Colon and asked, "Where's
my money." Marshall grabbed Colon by the neck, pushed her
against the store's gate and put her hand inside Colon's
clothing while repeating her demand for money. Failing to find
any, Marshall pushed Colon toward a car and put her in its back
seat. Marshall then sat in the front seat, and defendant drove
away. Although neither defendant nor Marshall had uttered a
threat, Colon was afraid they were going to beat her to death.
As defendant drove, Colon cried, and Marshall told her to "shut
up."
6 A-2111-15T2 Defendant drove until he reached a secluded railroad bridge
and stopped. At that point, Marshall moved to the back seat,
ordered Colon to take off her clothes and searched again when
Colon was wearing only underwear. Marshall recovered nothing
other than a food stamp card, ID, keys and $.50. Using the
car's rearview mirror, defendant had watched the events
occurring in the backseat.
After the final search, Marshall returned to the front
seat. She and defendant told Colon to get dressed, and
defendant drove from the railroad bridge to a gas station that
had a convenience store. This establishment was not insolated;
there were men standing outside in the parking lot when
defendant parked by the gas pumps. At that point, Colon had
dressed, and defendant had taken the belongings Marshall seized
and, with the exception of the $.50, returned them to Colon.
After parking, defendant left the car and went into the store.
When defendant left the car, Marshall re-took Colon's food
stamp card from her and asked Colon for the PIN needed to use
it. Colon complied, and Marshall left the car, went into the
convenience store and made several attempts to access the ATM.
Just seconds after Marshall left the car, Colon, thinking
it was her chance to get away, got out of the car. Colon left
wearing her short-sleeved uniform, carrying her jacket and left
7 A-2111-15T2 her coat behind. According to Colon, the men asked where she
was going, but, thinking they would not help her, she walked
away. Although she walked at first, she started to run and kept
running until a woman she did know took her in and called the
police.
At the station, defendant, who returned to the car about
thirty seconds after Colon left it, looked at the car, went back
to the store and motioned to Marshall, who was still at the ATM.
They left the store, got into the car and sped away.
The gas station's cameras had recorded the events at the
pumps and in the convenience store. The recording, which showed
the time of the events as they were occurring, was introduced
into evidence at trial and shown to the jury.
The police, using the video evidence, created a "Wanted
Poster" bearing images of the codefendants and the car. The
next day an officer spotted the parked car and defendant and
Marshall, who were sitting in it. They were arrested, and Colon
subsequently selected their photos from separate arrays.
The officers involved in the investigation that followed
testified at trial. Defense counsel cross-examined them about
warnings they gave Colon to secure her testimony, such as
removal of her children from her care and prosecution if she
lied or changed her account of the incident. The court
8 A-2111-15T2 precluded the defense from eliciting the officers' opinions on
Colon's veracity. But, in addition to cross-examination about
the officers' statements, the court permitted cross-examination
probing differences between Colon's trial testimony and pre-
trial statements.
III.
The most significant issue defendant raises on appeal is
the challenge to the court's denial of his motion for a directed
verdict on the first-degree kidnapping. In reviewing a directed
verdict, this court applies the same standard as the trial
court. Courts view the evidence in the light most favorable to
the State, give the State the benefit of all reasonable
inferences and determine whether "a reasonable jury could find
guilt of the charge beyond a reasonable doubt." State v. Reyes,
50 N.J. 454, 458-59 (1967); see Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1973).
Defendant's motion for a directed verdict was general and
not tied to an element of any crime at issue. On appeal,
defendant argues the State failed to present adequate evidence
to establish the element that distinguishes kidnapping in the
first and second degree, that is, the defendant did not
"release[] the victim unharmed and in a safe place." N.J.S.A.
2C:13-1(c).
9 A-2111-15T2 In order to prove this element in a case involving "a
kidnapper who has released the victim prior to his or her
apprehension, the State must prove beyond a reasonable doubt
that the victim had been harmed or had not been released in a
safe place." State v. Sherman, 367 N.J. Super. 324, 330 (App.
Div.) (emphasis added), certif. denied, 180 N.J. 356 (2004).
Thus, the State's evidence need not be adequate to permit a
reasonable jury to find that a released victim was harmed and
released in an unsafe place. Ibid. Proof of either suffices.
More important, under Sherman, the question of "harm" to
the victim and the "safe[ty]" of the place where the victim
becomes free are in issue only when a defendant "has released"
the victim. Ibid. Defendant acknowledges that proposition by
arguing "Colon was effectively released . . . in a safe place."
(emphasis added).
In this case, the State's evidence, considered with the
benefit of all favorable inferences, was adequate to permit a
reasonable jury to find defendant had not "released" Colon
because she escaped. That is, the evidence was adequate to
establish, beyond a reasonable doubt, that defendant did not
effectively "abandon[] any attempt to continue to confine her."
State v. Federico, 103 N.J. 169, 172 (1986) (citing State v.
Federico, 198 N.J. Super. 120, 126 (App. Div. 1984)).
10 A-2111-15T2 Resolution of that factual dispute – abandonment of control
versus escape – was for the jurors. Federico, supra, 198 N.J.
Super. at 125-26.
Considered collectively, Colon's testimony, if believed,
and the video provided adequate to prove Colon escaped before
defendant abandoned control. Working together, the codefendants
took Colon from the bus stop, put her in a car, drove her to an
isolated place, compelled her to remove her clothes and took her
belongings. Thereafter, they drove her to a gas station and
maintained that control. Marshall stayed with Colon when
defendant went into the gas station's store, and Colon left the
car only seconds after Marshall left and just thirty seconds
before defendant returned to the car.
A jury could determine that Colon's leaving the car without
her coat and walking away before starting to run was not
behavior one would expect from a person free to come and go at
will. And the jury could conclude it was consistent with the
behavior of a person attempting to sneak away and succeeding.
The video gave the jury the opportunity to assess Colon's
behavior. More important, the video gave the jury the
opportunity to determine whether defendant's demeanor and
behavior upon discovering Colon had left was consistent with the
11 A-2111-15T2 surprise and alarm of a captor who had lost control or with the
indifference of a captor who had abandoned control.
Viewed in the light most favorable to the State, the
evidence permitted a finding of guilt on first-degree kidnapping
based on defendant's failure to release the victim.
We have addressed defendant's second point, possible
tainting of the jury, in Part I of this opinion. No additional
comment is warranted.
Turning to Points IV and V raised in defendant's pro se
brief, we discern no error. The court properly barred questions
eliciting the officers' opinions on Colon's credibility, because
credibility is exclusively within the province of the jurors and
a lay witness's opinion on that topic is inadmissible. State v.
Frisby, 174 N.J. 583, 593-94 (2002); accord State v. McLean, 205
N.J. 438, 453 (2011) (emphasizing the cases cited therein).
Defendant's claim concerning the court's allowing false
testimony has no merit. There is no evidence suggesting the
prosecutor or the officers knew Colon's testimony and statements
were false, as opposed to inconsistent, and defense counsel's
vigorous cross-examination highlighted the inconsistencies.
Moreover, the court directed the jurors to consider the impact
of the officers' arguably coercive statements. The court
instructed the jurors to consider "statements of other witnesses
12 A-2111-15T2 or acts of the witnesses and others, disclosing motives that the
witness may have had to testify as she did." The arguments
presented in Points IV and V have insufficient merit to warrant
additional discussion. R. 2:11-3(e)(2).
There is no reason to disturb defendant's sentence. He
urges us to conclude the forty-five year extended term sentence
for first-degree kidnapping is manifestly excessive.
Appellate review of a sentence is "governed by an abuse of
discretion standard." State v. Blackmon, 202 N.J. 283, 297
(2010). This court may not substitute its judgment for that of
the trial court. Ibid. The reviewing court considers: (1)
"whether the correct sentencing guidelines . . . have been
followed;" (2) "whether there is substantial evidence in the
record to support the findings of fact upon which the sentencing
court based the application of those guidelines;" and (3)
"whether in applying those guidelines to the relevant facts the
trial court clearly erred by reaching a conclusion that could
not have reasonably been made upon a weighing of the relevant
factors." State v. Roth, 95 N.J. 334, 365-66 (1984).
Defendant relies on State v. Dunbar, 108 N.J. 80 (1987),
which set forth a "process to discretionary enhanced-term
sentencing" of persistent offenders, pursuant to N.J.S.A. 2C:44-
3(a). But before defendant was sentenced, the Court revised the
13 A-2111-15T2 Dunbar-process to comply with Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004). State v. Pierce, 188 N.J. 155, 165-69 (2006). Although
defendant relies on Dunbar, Pierce controls.
Under Pierce, the court first determines whether the
"defendant's criminal record of convictions" makes him eligible.
Id. at 168. If the defendant is eligible, the court imposes a
sentence within a range that begins with the minimum ordinary
term and ends with the maximum extended term. Ibid. To select
the appropriate sentence within the range, the court must assess
the aggravating and mitigating factors and, in that context,
consider the need for "protection of the public." Ibid.
Under Dunbar, courts were directed to consider whether
protection of the public necessitated an extended term sentence
based on persistent offending when determining a defendant's
eligibility for an extended term. 108 N.J. at 164-65. In
Pierce, the Court stressed that "a finding of 'need to protect
the public' is not a precondition to a defendant's eligibility
for sentencing up to the top of the discretionary extended-term
range." 188 N.J. at 170. Necessity is a factor the Court "may
consider" with the aggravating and mitigating factors. Ibid.
14 A-2111-15T2 In this case, the trial court complied with the first and
second steps of Pierce. The court identified the minimum
sentence for first-degree kidnapping, which is fifteen years,
N.J.S.A. 2C:13-1, and the maximum extended-term sentence for
first-degree kidnapping, which is "life imprisonment," N.J.S.A.
2C:43.7(a)(1). The trial court then identified the applicable
aggravating and mitigating factors and the facts he relied upon
in finding aggravating factors specified in N.J.S.A. 2C:44-
1(a)(3), (6) and (9), and mitigating factors specified in
N.J.S.A. 2C:44-1(b)(2), (4) and (8).
The court did not find the mitigating factor that applies
when "[t]he defendant's conduct neither caused nor threatened
serious harm," N.J.S.A. 2C:44-1(b)(1), and explained that
"[a]nytime a person is violently removed and . . . kept away
from their normal activities by being forcibly moved from part
to part, there's a risk of serious crime." That determination
was not an impermissible double-counting of an element to impose
a sentence at the high-end of the range, as defendant argues.
See State v. Pineda, 119 N.J. 621, 627 (1990) (discussing
double-counting). Here, the court determined this mitigation
based on risk of serious harm did not favor a sentence at the
lower end of the permissible range.
15 A-2111-15T2 Notably, the court did not find the first aggravating
factor, which concerns the nature and circumstances of the
offense and the defendant's role in its commission, N.J.S.A.
2C:44-3(a)(1). Instead, the court found mitigating factor (2),
which applies when the defendant before the court "did not
contemplate that his conduct would cause of threaten serious
harm." N.J.S.A. 2C:44-1(b)(1).
The trial court's consideration of the aggravating and
mitigating factor cannot be viewed as anything other than a
thorough and thoughtful exercise of sentencing discretion in
conformity with the law. It is not an abuse of that discretion.
Defendant's argument focuses on a comment the court made
during defendant's allocution on defendant's role in removing
Colon from the bus stop to the backseat of the car. The judge
did not rely on that description in explaining the factual basis
for the sentence. Accordingly, even if we found the court's
recollection of the testimony on the point inaccurate, we could
not conclude that it had some undisclosed impact on the court's
carefully articulated sentencing determination.
Relying on Dunbar, defendant argues that the court, having
determined to sentence defendant as a persistent offender, erred
in considering his criminal history in selecting the duration of
his extended-term sentence. But, as Pierce explains, the
16 A-2111-15T2 "'necessity to protect the public' . . . involves an evaluation
of the 'entire person of the defendant before the sentencing
court'" and is properly considered in selecting a sentence
within the broad extended-term range, not as it was considered
under Dunbar in deciding the defendant's eligibility for an
extended term sentence. Pierce, 188 N.J. at 167 (quoting
Dunbar, supra, 108 N.J. at 91).
Defendant also contends the court double-counted the
convictions that qualifies him for this discretionary extended
term. Not so. In finding defendant eligible for an extended
term, the court relied on an August 17, 1995 conviction for
possession of CDS and on a January 7, 2011 conviction for
terroristic threats. In finding aggravating factor (6), the
court considered defendant's third degree crimes for drugs
(defendant had at least three convictions for third-degree CDS
offenses after his 1995 conviction), and his convictions for
possession of a handgun, resisting arrest, burglary, shoplifting
and eluding. Although the court mentioned "terroristic
threats," the court immediately said, "I'm sorry, I'm not
considering the terroristic threat[.]"
Defendant's sentence was imposed in conformity with
statutory guidelines as interpreted by the Supreme Court and is
supported by the evidence adduced at trial and defendant's
17 A-2111-15T2 strikingly lengthy criminal record. His lengthy sentence is
neither arbitrary nor shocking to the judicial conscience.
Affirmed.
18 A-2111-15T2