SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2034-96T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK HAWKINS, a/k/a MARSHALL ROUNDTREE,
Defendant-Appellant.
___________________________________________________________________
Submitted October 1, 1998 - Decided November
6, 1998
Before Judges Stern and Landau and
Braithwaite.
On appeal from Superior Court of New Jersey,
Law Division, Camden County.
Ivelisse Torres, Public Defender, attorney for
appellant (Jacqueline E. Turner, Assistant
Deputy Public Defender, of counsel and on the
brief).
Lee A. Solomon, Camden County Prosecutor,
attorney for respondent (Deborah Fox,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the Court was delivered by
LANDAU, J.A.D.
On October 4, 1993, defendant Mark Hawkins was indicted in
Camden County on counts of first degree robbery (N.J.S.A. 2C:15-1)
and third degree hindering prosecution (N.J.S.A. 2C:29-3b(1)). In
1994, he entered a retraxit plea of guilty on the armed robbery
count subject to the court's acceptance of a plea bargain in which
the State was to recommend a second degree sentence of nine years
with three years of parole ineligibility to run concurrently with
any sentence imposed under a pending Essex County prosecution.See footnote 1
An Essex County jury found defendant guilty of first degree
attempted murder (N.J.S.A. 2C:11-3; 5-1); second degree aggravated
assault (N.J.S.A. 2C:12-1b(1)); third degree unlawful possession of
a weapon (N.J.S.A. 2C:39-5b); and second degree possession of a
weapon for an unlawful purpose (N.J.S.A. 2C:39-4a), but his motion
for a new trial was granted. Defendant then pled guilty to second
degree counts of aggravated assault and possession of a weapon for
an unlawful purpose, receiving concurrent sentences of ten years
with five years of parole ineligibility on each count.
After the Essex County convictions, the Camden County plea
proffer was rejected because the conviction in Essex County would
require a conviction for the robbery charge subject to "a second
Graves [Act]" sentence. See N.J.S.A. 2C:44-3d; State v. Hawks,
114 N.J. 359 (1989). Defendant went to trial on the Camden indictment.
The jury returned a guilty verdict on each count. A Graves Act
hearing was held. As defendant was found to have used a gun in the
robbery, and as defendant had also been sentenced under the Graves
Act for the Essex County offense, an extended term was imposed.
Defendant was sentenced on the robbery count to a fifty-year
custodial term with 16 2/3 years of parole ineligibility, and to a
concurrent five year term on the hindering prosecution count. The
sentence was run consecutively to the term imposed in Essex County.
On appeal defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
REQUEST FOR AN ADJOURNMENT SO THAT HE WOULD BE
ABLE TO STAND TRIAL IN CIVILIAN CLOTHES.
POINT II
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S
MOTION FOR A MISTRIAL AFTER EVIDENCE OF OTHER
CRIMES WAS PLACED BEFORE THE JURY.
POINT III
THE TRIAL JUDGE ERRED IN FAILING TO QUESTION
THE JURY ABOUT THE IMPACT OF DEFENDANT'S
REPEATED OUTBURSTS.
POINT IV
THE JUDGE ERRED IN FINDING THAT THE DEFENDANT
USED A REAL GUN IN THE COMMISSION OF THE
ROBBERY; HE WAS, THEREFORE, NOT SUBJECT TO THE
GRAVES ACT.
POINT V
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We have considered these arguments in light of the briefs and
record and conclude that each is without merit, R. 2:11-3(e)(2),
warranting no extended discussion.
We add these comments. The victim gave a description of
defendant and his unique attire to authorities immediately after
the robbery. She had ample opportunity to observe him in broad
daylight, and positively identified him both shortly thereafter and
at the trial. Coupled with defendant's taped confession, there was
such overwhelming evidence of guilt that even were there some merit
in any of the arguments raised in Points I, II and III, the outcome
would not have been affected. Defendant was provided with khaki
pants, sweatshirt and sneakers rather than prison garb. It was not
necessary to outfit him in stylish clothing, and we find no abuse
of discretion in the court's refusal to further delay the trial.
As to denial of the mistrial request, the limiting instructions
given promptly during trial and in the later jury charge were fully
adequate in this case to forestall any possibility of an unjust
result. It was a reasonable exercise of discretion to deny the
mistrial motion.
Respecting the judge's method of avoiding prejudice to
defendant from his own self-serving courtroom outbursts, our review
of the record satisfies us that the curative instructions were
sufficient, and an appropriate exercise of discretion. Defendant's
statements, some made after court warning, were either designed to
evoke sympathy or to confound the judicial process. The judge made
appropriate inquiry of a juror who thought his objectivity might be
affected, dismissing the juror without compromising the jury. He
instructed the jury appropriately. Defendant ought not be rewarded
on appeal for engaging in disruptive courtroom conduct. State v.
Vasky,
203 N.J. Super. 91, 98 (App. Div. 1985). See also State v.
Loftin,
146 N.J. 295, 365-66 (1996)(leaving to discretion of trial
judge the determination of appropriate response, based upon "feel
of the case.")
Turning to defendant's challenge to the finding that defendant
used a gun, thus implicating a Graves Act (N.J.S.A. 2C:43-6c)
sentence, we note that the judge conducted a separate inquiry as
required by State v. Stewart,
96 N.J. 596 (1984). In so doing, a
court must conclude by a preponderance of evidence that defendant
possessed a gun during commission of the crime. Stewart, supra, at
606.
All relevant material, not only that placed before the jury
during trial, may be considered. Ibid. Indeed, N.J.S.A. 2C:43-6d
affords broad latitude to the court in making the Graves Act
finding:
[i]n making its finding, the court shall take
judicial notice of any evidence, testimony or
information adduced at the trial, plea hearing
or other court proceedings and shall also
consider the presentence report and any other
relevant information.
Here, one of the several underlying reasons given for the
conclusion that a real gun was employed was defendant's
confirmation of that fact during the course of a guilty plea, later
withdrawn. Other factors mentioned were defendant's own statement
that he "never stuck a gun to anybody before [this incident]," and
the victim's description of the silver-grey gun she was confronted
with, which didn't look like a toy.
The finding of a requisite element of a Graves Act offense may
be based upon proof which would not be admissible in evidence at
the defendant's trial. State v. Wooters,
228 N.J. Super. 171, 179
(App. Div. 1988)(citing Stewart, supra, 96 N.J. at 606).
In State v. Davis,
96 N.J. 611, 619-20 (1984), the Court
stated,
[a] sentencing judge may exercise a far-ranging discretion as to the sources and types
of evidence used to assist him or her in
determining the kind and extent of punishment
to be imposed. (Citation omitted). This
universal understanding of sentencing
discretion is consistent with our traditional
approach to the information that can and
should be available generally in sentencing.
Presentence materials can be placed before the
sentencing tribunal without surmounting
regular hurdles of evidential admissibility.
Sentencing deliberations may appropriately
take into account matters that would not
satisfy conventional evidential standards.
(Citations omitted). In short, the sentencing
process should embrace an evidential inquiry
`broad in scope, largely unlimited either as
to the kind of information that may be
considered, or the source from which it may
come.' (Citation omitted.)
Thus a judge is not bound by strict rules of evidence when
considering a defendant's sentence.
According to the victim, the gun was silver-gray, flat, about
the size of a person's hand, and it was not a revolver. It did not
look like a toy gun.
In this case, the judge also had before him the testimony
given at trial by the victim respecting defendant's statement to
her at the time of the robbery, "I have a gun. Give me your purse
or I'll shoot you." In State v. Huff,
292 N.J. Super. 185 (App.
Div. 1996), aff'd o.b.,
148 N.J. 78 (1997), we indicated that such
a statement might be received for its truth under N.J.R.E. 803(b).
Id. at 192.See footnote 2 For purposes of the Graves Act hearing and its
preponderance of evidence standard, this unobjected-to evidence of
defendant's own statement and his "never stuck a gun to anybody
before" comment to the police, considered together with the
victim's description of the gun, was alone sufficient to meet the
standards laid down in State v. Gantt,
101 N.J. 573, 589-90 (1986).
It is, thus, unnecessary to resolve the issue raised by
defendant as to the court's consideration of defendant's sworn
testimony during his later withdrawn retraxit plea of guilt.
Defendant points to N.J.R.E. 410See footnote 3 in this regard. The State argues
that the court correctly exercised discretion to relax N.J.R.E. 410
under N.J.R.E. 101(a)(2)(C) which permits relaxation of evidence
rules in a criminal matter in which information is presented for
the court's use in sentencing. As we noted above, apart from use
of defendant's sworn statement at his retraxit plea hearing, there
was sufficient evidence to meet the standards of State v. Gantt,
supra.
Moreover, the defendant calls attention to his initial
statement to police where he said he used a plastic water gun.
While defendant did not so testify in the Graves proceeding, the
practical thrust of defendant's argument is that the court should
consider his initial statement that the weapon was a toy, but that
his sworn statement at the plea proceeding that the gun was real
must be ignored under N.J.R.E. 410. We think it would be a
reasonable exercise of discretion under N.J.R.E. 101 (a)(2)(c) to
relax N.J.R.E. 410 during a Graves sentencing procedure, at least
to rebut a contrary factual contention expressly or inferentially
raised, as distinct from using the rejected plea statement as
direct evidence in support of the "real gun" proposition.
If the proofs supporting the use of a real gun are considered
independently of defendant's "toy" contention to police, they meet
the standards of Gantt. If defendant's "toy gun" statement is to
be weighed, then his sworn contradictory statement need not be
ignored. In either event, the applicable preponderance of evidence
test was here met for Graves Act purposes. Under these
circumstances we uphold the Graves Act sentence. We do not address
whether defendant's withdrawn plea can be used against him in other
circumstances and do not hold that it can.
Finally, we are satisfied that the court's sentencing
discretion was capably exercised in this case. Our judicial
conscience is not shocked. State v. Roth,
95 N.J. 334, 363-364
(1984).
Affirmed.
Footnote: 1In the Essex County indictment defendant's name was given as
"Marshall Roundtree".
Footnote: 2Huff involved use of the statement for purposes of sustaining
a first degree robbery, not a Graves Act sentence based on the
possession of a firearm during the robbery.
Footnote: 3N.J.R.E. 410 provides in pertinent part:
[e]xcept as otherwise provided in this rule,
evidence of a plea of guilty which was later
withdrawn, of any statement made in the course
of that plea proceeding, and of any statement
made during plea negotiations when either no
guilty plea resulted or a guilty plea was
later withdrawn, is not admissible in any
civil or criminal proceeding against the
person who made the plea or statement or who
was the subject of the plea negotiations.