State v. Jackson

Page 43

289 N.J.Super. 43

672 A.2d 1254

STATE of New Jersey, Plaintiff-Respondent, v. Akbar JACKSON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 14, 1996.

Decided March 21, 1996.

Susan Herman, Assistant Deputy Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney; Ms. Herman, of counsel and on the brief).

Linda A. Rinaldi, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General; Ms. Rinaldi, of counsel and on the brief).

Before Judges DREIER, KESTIN and CUFF.

The opinion of the court was delivered by

DREIER, P.J.A.D.

Defendant appeals from convictions of first-degree robbery, N.J.S.A. 2C:15-1; second-degree robbery as a lesser-included offense of first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; aggravated assault on a police officer as a lesser-included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant had originally also been charged with first-degree attempted murder, but was found not guilty of this charge. After merger of various offenses, defendant was sentenced on the two first-degree robberies to consecutive terms of eighteen years with a seven-year parole disqualifier, and ten years with a four-year parole disqualifier, the total sentence therefore being twenty-eight years with an eleven-year parole disqualifier.

Defendant accosted a postal worker on post office property as she was going to work at 4:30 a.m. He threatened her at gunpoint and demanded her car keys. They struggled, and he stole her pocketbook, taking her car keys and other personal items. He immediately went to where she had parked and drove off in her car. The robbery occurred on federal property, but the car was parked in a lot on state land. Another postal worker observed defendant and later identified him both in a photographic line-up and in court. The woman who was robbed identified defendant solely from a photograph; she was unable to identify him in court.

Two days after the robbery, a police officer observed the stolen car and radioed for assistance. After a brief chase, the stolen car crashed and the driver and the passenger fled. The officer recognized the passenger, but chased the driver. During the chase, the officer threatened to shoot the individual if he did not stop, and finally caught him. The individual turned and hit the officer with a blunt object. The officer blacked out, and when he awoke, the individual was straddling and punching him. He recognized the assailant, although he could not immediately remember his name. After the assailant struck the officer several times, he allegedly reached for the officer's gun, pointed at the officer and pulled the trigger. The gun, however, misfired. The officer testified that it had never misfired before and subsequent testing showed that it was in working order. The gun had been fully loaded. The assailant fled with the officer's gun and the officer was taken to the hospital.

In the ensuing search for defendant, he was sighted once and fled, but later in the day his step-father arranged to have defendant turn himself in. Defendant was read his rights, and the step-father testified that defendant then asked for an attorney. During the processing, defendant asked the processing officer what the charges were against him. When he was told that one of the charges was the attempted murder of the officer, defendant responded he would "go for the robbery at the Post Office, but I didn't hit ¹ the cop." Defendant was immediately readvised of his rights. He then gave a second, more formal, oral statement which the officer included in his report. Defendant admitted he stole the car and then gave it to two others, one of whom had been the passenger when the car had been apprehended. Defendant claimed he had heard that the other individual had the initial officer's gun, and he had seen that individual put the gun under his refrigerator. Defendant identified the individual who allegedly had the weapon, and the police proceeded to the individual's house. He consented to a search and the officer's gun was found under the refrigerator. The individual testified for the State that on the night before his arrest defendant had come to his house and told him that he had an altercation with the police and had beaten an officer. Defendant had remained for the night and left in the morning.

Defendant raises five points on this appeal, the first with four subparts.

POINT I

EXTRAORDINARY EVENTS WHICH OCCURRED IN THE ESSEX COUNTY COURTHOUSE IMMEDIATELY PRIOR TO DEFENDANT'S TRIAL MADE A FAIR TRIAL FOR DEFENDANT IMPOSSIBLE, REQUIRING A REVERSAL OF HIS CONVICTIONS. ( U.S. Const., Amend. VI; N.J. Const. (1947), Art. I, par. 10).

A. Defendant should have been granted an adjournment due to extensive publicity concerning the murder of a police officer five days earlier in the same courthouse and the potential for extreme prejudice accruing to the defendant as a result of the similarities of that case to his charges.

B. Defendant's request for individual voir dire of jurors should have been granted. The insufficient voir dire denied defendant his right to a fair trial. (Partially raised below).

C. A mistrial should have been granted because of the egregious misconduct of the prosecutor in summation.

D. A new trial should have been granted for the same reasons.

POINT II

THE TRIAL COURT'S FAILURE TO DISMISS COUNTS ONE, TWO AND THREE FOR LACK OF JURISDICTION IN NEW JERSEY, OR IN THE ALTERNATIVE, TO PUT THE STATE TO ITS PROOFS OF JURISDICTION AND TO SUBMIT THE FACTUAL ISSUE OF JURISDICTION TO THE JURY, DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND TRIAL BY JURY ON ALL FACTUAL ISSUES. U.S. Const. Amends. V, VI, XIV; N.J. Const. (1947), Art. I, pars. 1, 9, 10.

POINT III

THE APPELLATE DIVISION ERRED IN HOLDING, ON INTERLOCUTORY APPEAL, THAT SEVERANCE SHOULD NOT BE GRANTED AS TO COUNTS ONE, TWO AND THREE OF THE INDICTMENT.

POINT IV

THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY TO SCRUTINIZE THE CIRCUMSTANCES OF DEFENDANT'S ORAL STATEMENT TO THE POLICE DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT V

THE MATTER MUST BE REMANDED FOR RESENTENCING SINCE THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND DISPROPORTIONATE TO THE CRIMES. IN ADDITION, THE TRANSCRIPT OF SENTENCING IS INCONSISTENT WITH THE SENTENCE REFLECTED ON THE JUDGMENT OF CONVICTION, REQUIRING A REMAND.

I

The issues raised in defendant's first point are clearly without merit; therefore, we will only briefly discuss the subpoints. R. 2:11-3(e)(2).

Defendant initially contends that a shooting of an officer in the Essex County Courthouse just prior to the commencement of defendant's trial should have caused the trial judge to grant an adjournment. This issue was brought before us on an interlocutory appeal where we approved the adjournment denial. We see no reason to depart from the earlier ruling. State v. Reldan, 100 N.J. 187, 204, 495 A.2d 76 (1985). Even if the law of the case doctrine did not apply, this was a matter within the trial judge's control and there was no showing of sufficient similarity or effect upon this jury for us to have reversed on this basis.

Likewise, defendant's request for individual voir dire of jurors as opposed to the collective voir dire was a matter to be resolved within the discretion of the trial judge. The court held a proper voir dire as required by State v. Bey (I), 112 N.J. 45, 86-87, 548 A.2d 846 (1988).

Defendant also contends that the prosecutor's summation was overly inflammatory and constituted sufficient misconduct to warrant a new trial. The judge immediately chastised the prosecutor for each improper statement, and gave definite and timely charges to disregard the improper statements. We find that the net effect of the improper comments, after the judge's instructions, warranted neither a mistrial nor a new trial.

II

Defendant's second point will be discussed in more detail because the issue may arise again at retrial. Defendant claims that the court lacked jurisdiction over the robbery in counts one through three of the indictment because it occurred on post office premises and thus was subject exclusively to federal jurisdiction. The issue was raised in a timely fashion at defendant's new trial motion, even though no motion was made before trial. State v. Streater, 233 N.J.Super. 537, 541, 559 A.2d 473 (App.Div.), certif. denied, 117 N.J. 667, 569 A.2d 1358 (1989); R. 3:10-2(e); Pressler, Current N.J. Court Rules, comment on R. 3:10-2(e) (1995). The State does not dispute that the United States District Court has exclusive jurisdiction of a crime committed solely on federal property.

One could look at this crime and say that the robbery was complete when the handbag with the car keys was stolen on federal property, and thereafter there was only a theft of the car, which would be subject to State jurisdiction. But we see the facts here as an armed robbery, the assault portion of which occurred on the federal post office property with the object of obtaining possession of the car, not merely the pocketbook containing the keys. Defendant went directly to the car, indicating that he had watched the victim park before he accosted her and then sought the car. Thus, while defendant seized the handbag at gunpoint on federal property, his intent was to obtain possession of the victim's car; therefore, the robbery was not completed until the keys were used to take the car on the municipal street, within State jurisdiction. Since elements of the crime occurred on both State and federal property, the federal and State courts had concurrent jurisdiction under N.J.S.A. 2C:1-3a(1) and the "dual sovereignty" doctrine. Heath v. Alabama, 474 U.S. 82, 88-89, 106 S.Ct. 433, 437-38, 88 L.Ed.2d...